CUBAN LAW, INTERNATIONAL LAW AND THE RETURN OF ELIAN TO HIS FATHER

By Alberto Luzárraga


Alberto Luzárraga has a Ph.D. in Civil Law from the University of Villanova in Havana, and an MBA from the University of Miami. He resides in the New York City metropolitan area.

A basic understanding of Cuban law is key to the question of whether Elian Gonzalez should be returned to his father in Cuba. In particular, a look at the 1976 Cuban Constitution as amended August 1, 1992, (http://www2.cuba.cu//gobierno/cuba.htm) and the Code of the Child and Youth, Law No. 16 of June 28, 1978, (http://www.lanuevacuba.com/codigo.htm), helps to shed light on the extent to which the father actually retains parental rights as commonly understood and the kind of future the six year old Elian can expect under current Cuban law. The issue rests on whether Elian's father has real or only illusory parental rights in Castro's Cuba and whether, if even effective rights exist, he has the sole right to speak for the child.

The 1976 Constitution of the Republic of Cuba is resolved to build socialism and, led by the Communist Party, to build a communist society. In Article 6, the Union of Communist Youths is exclusively recognized by the State "to promote the active participation of the juvenile masses in the tasks of the socialist construction" of society. Under Article 38, the parents have the "duty" to "actively contribute to their children's education and the integral formation as useful citizens including preparations for life in socialist society." Article 39 mandates that the State's control of cultural and educational policy be based on "Marxist ideals" and again on the "communist formation" of youth. Article 62 criminalizes resistance or opposition to these edicts stating clearly that "no rights granted by this constitution and the laws can be exercised against the existence of and objectives of the communist state. The infraction of this article is punishable."

Blas Roca, Secretary General of the Communist Party, as President of the National Assembly, oversaw the passage of the Code of the Child and Youth. Law No.16, of June 28 1978 which comprises the body of Cuban law that regulates the lives of children and youth, specifies that personality must change, any influence contrary to communism must be combated, and school admission is predicated on political attitude. More specifically, Title II, Article 3 states, "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." In Article 5, the society and the State watch to "ascertain that all persons who come in contact with the child during his educational process constitute an example for the development of communist personality." In Article 8, the society and the State "work for the efficient protection of youth against all influences contrary to their communist formation." In Article 9, "Educators have a high mission in the development of the communist personality." Title III, Article 23 determines whether a student may attain a higher level of education based on his adherence to communist doctrines and states, "Upon completion of primary schooling, young people may continue their education at pre-university centers, vocational schools, or other specialized schools, on the basis of their academic achievement, political attitude and social conduct." Title IV, Article 68 describes how "Children and young people prepare" for military education and active military service by subscribing to ideological indoctrination referred to as the "principles of proletarian internationalism and combative solidarity."

To insure no deviation from Marxist dictates a "cumulative dossier" is compiled for each student wherein his political attitude is recorded. You merits and demerits are minutely recorded and form the basis for your opportunities to obtain a higher education. This is persecution pure and simple and on a daily basis. Persecution is a recognized basis for asylum.

The position taken by the Clinton administration's Department of Justice as pieced together from their statements and logical legal reasoning is to establish whether Juan Gonzalez is in fact, the father of Elian, and then apply the law of the jurisdiction of which the subjects are nationals, that is Cuba. As in all Marxist regimes contradictory laws reign supreme since there is no judicial review. The Civil Code (different from the Code of the Youth) gives parental rights to both parents and in case of the death of one, to the surviving parent. Presumably in the INS's view this would establish Elian's father's right to speak for him regardless of the fact that the main body of Cuba's law and practice reduces parental rights to mere vestiges. In fact it renders parents nannies for the State. There may also be coercion that precludes Elian's father from speaking freely and revealing his true desires.

One or two interviews in a totalitarian country mean very little. The interviewee has to continue to live there after the interview ends. Further, given the nature of the regime and the fact that Elian's father has another wife and a child from a new marriage, there may be a divergence of interests between the father and child. It is a general principle of family law that when such a divergence may exist a guardian ad litem is appointed to represent the interest of the child.

The Convention on the Rights of the Child signed and ratified by on Cuba 26 Jan 1990 and 21 Aug 1991 each, is also Cuban law. This convention repeatedly mentions the interest of the child as a paramount consideration and states in its article 9.1 that separation may be advisable "when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child".

The Convention against Torture was also signed and ratified by Cuba on Jan. 27, 1986 and May 17, 1995 respectively and by the United States on 18 April 1988 and 21 Oct. 1994. Art 3 states: "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. The treaty defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted". "For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights." The UN has seen fit to establish a special rapporteur for human rights to work on the Cuban issue and continues to condemn Cuba's human rights conduct. The state Department has placed Cuba in its list of terrorist countries.

With this background, if the strictures imposed on parents and children by the Code of the Family and Youth do not qualify as " a gross violation of human rights" then the INS is reading a different declaration of Human Rights from the one I use. Its article 26 states: "Parents have a prior right to choose the kind of education that shall be given to their children."

These are issues that the U.S. Immigration and Naturalization Service, (INS) following their interview with the father, has apparently set aside as they obviously believe that the parent is able to convey to the INS his true intentions and presumably to represent the interest of the child. The INS appears not to take into account matters of Cuban and international law that are notorious. They appear to have entered the field of family, Cuban and international law on such a selective basis that their judgement is subject to question.

No explanation is given as to how the INS forms a judgement of the father's freedom to speak given the fact he has to continue to live under a regime that has spent 41 years in power and is "credited" by the Black Book on Communism with having sent 15,000 people to the firing squad. No explanation is given either as to why the father refused for months to apply for a visa to visit his son.

In any case the alleged parental rights accruing to Elian's father are non-existent as they have been usurped by the State which assumes the right to educate, indoctrinate and to sculpt a child's personality according to the tenets of Marxism. At eleven years of age, the State imposes a boarding school requirement and separates parents from their children.

According to the Cuba Country Report on Human Rights Practices for 1998 (http://www.state.gov/www/global/human_rights/) issued by the State Department, the Cuban government "requires children to work without compensation. All students over age 11 are expected to devote 30 to 45 days of their summer vacation to farm work, laboring up to 8 hours per day. The Ministry of Agriculture uses 'voluntary labor' by student work brigades extensively in the farming sector."

This is the future that awaits Elian if the Clinton administration prevails. The INS determination that Elian should be sent back to Cuba is faulty both in terms of Cuban and International Law including treaties signed and ratified by the United States and does not take into consideration the best interest of the child. Elian richly deserves political asylum. It can and should be granted under the law.


FIN


Alberto Luzárraga
Marzo, 2000

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