Elian should stay. A different legal approach
Much has been written as to why Elian Gonzalez should not return to Cuba. Arguments are legion. However, this piece is targeted at the Immigration Service's argument that the father is the only one that can speak for the child. INS's argument is based on the fact that parents enjoy parental rights over their children. No one argues this fact. It is in the body of western law since time immemorial. The issue is whether Elians' father has real or only apparent parental rights in Castro's Cuba and whether if even effective rights existed he has the sole right to speak for the child.
This last issue was vividly illustrated by the case of Walter Polavcheck in a well known case decided in Chicago during 1980. Walter, a 12 year old Ukrainian boy was visiting the United States with his father and decided that he did not want to go back. He took his bike and fled to his cousin's home. The father went and got the police. Walter was helped by a lawyer on a pro bono basis and fought his father for 5 1/2 years. Eventually he turned 18 and was made a U.S. citizen and the issue of deportation became moot. But before this happened the judge found that children have a right to be protected from persecution and not only adults. In fact, the judge found that parental rights are not absolute and this is only common sense. These rights are exercised for the benefit of the child and not for his harm. It is a basic principle of family law.
The question is then to determine whether parental rights exist in Cuba in the way they are commonly understood and whether or not persecution exists. I would rather not cite too many Marxist laws but it is necessary to do so. The body of Cuban law that regulates children's rights is The Code of The Child, Law No. 16 dated June 28 1978.
Article 3. The communist formation of the young generation is a valued aspiration of the state, the family, the teachers, the political organizations, and the mass organizations that act in order to foster in the youth the ideological values of communism.
Art 5. The society and the State watch to ascertain that all persons that come in contact with the child during his educational process constitute an example for the development of his communist personality.
Art 8. Society and the State work for the efficient protection of youth against all influences contrary to their communist formation.
Art. 9. Educators have a high mission in the development of the communist personality.
Art. 23. Upon completion of primary schooling young people may continue their education at pre universitary centers, vocational schools, or other specialized schools, on the basis of their academic achievement, political attitude and social conduct.
Art. 33. The State grants special attention to the teaching of marxism-leninism due to its importance in the ideological formation and political culture of the young students.
Art. 68. Children and young people prepare for the patriotic/military education by acquiring military knowledge, pre inductee courses, …..and active military service making their own the principles of proletarian internationalism and combative solidarity."
Yes, I know that the language is suffocating but it makes my case. What other proof is required? Look at the contents of the law: Personality must change, any influence contrary to communism must be combated, school admission is predicated also on political attitude.
On top of this the Cuban constitution in its Art 39 states that the State foments and orients education and insists that its cultural and educational policy is based on "Marxist ideals" and again on the "communist formation" of youth.
To cap it off Art 62 of the Cuban constitution states "that no rights granted by this constitution can be exercised against the existence of and objectives of the communist state. The infraction of this article is punishable." Pretty clear: if you are not a communist you are a criminal. And what does the Declaration of Human Rights say?
Art. 12 "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks."
Art. 22. "Everyone, as a member of society,…. has the rights indispensable for his dignity and the free development of his personality."
Art. 18. Everyone has the right to freedom of thought, conscience and religion.
Art. 19. Everyone has the right to freedom of opinion and expression. This right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Art. 26. Every person has a right to education. Education shall have as its objective the full development of the human personality. Parents shall have the right to choose the education given to their children.
The alleged parental rights accruing to Elians' father do not exist as they have been usurped by the Marxist state in violation of Cuba's' legal tradition and western legal thought. It assumes arbitrarily the right to educate, indoctrinate and change the personality. At eleven years of age it imposes a boarding school requirement and separates parents from children. These rights are so basic and are so much of the essence of parental rights that they exist in the codes of all civilized nations. The declaration of human rights simply registers the consensus of humanity's secular understanding of these matters.
Changing the personality is a most severe transgression of the rights of the person but the Cuban law boasts about it in a loud voice.
What is the difference between this and psychological torture? (covered by treaty and US law) What is the difference between this and the Gulag, Pol Pot's reeducation camps or the nazi work camps, where the nazis shamelessly said that work shall make you free?
And to further the argument of usurped parental rights it must be said that nutrition, a basic right and obligation of parents is also usurped by the state which rations and deprives children of milk at age seven. It acts as a parent both "de facto" and "de iure".
Parental rights are defined as the right to act for a minor and the right and obligation to feed, educate and protect children. When these rights are taken away what is left is a reduced parental right which is slighted in such away to render it meaningless. But nonetheless, this appearance is used and abused by the State who shamelessly presents it as an argument to maintain its tyranny.
The fact is: The real parent is the Marxist state. Persecution in Cuba is obvious. The precedent established by Walter Polavchek's case cannot be dismissed. Young people in Cuba are persecuted. Not only physically. Psychological persecution is daily and imposed by law. To oppose it is punishable by a constitutional article. What further proof is needed of Castro's obsession with mind control to give little Elián injunctive relief?
A guardian should be appointed by a family court to argue the child's case. Anything else is a travesty of justice. When justice is disregarded in matters such as these it is not only the child, but humanity that suffers.