Donna-Bader-150x150-125x125 CUBA: One Lawyer’s Perspective

By Donna  Bader

I know what you’re thinking.  Why Cuba?  Well, as I watched news coverage on the “Occupy” movements, it seemed to me that a large segment of our population believes our system is broken.  As attorneys, we can’t ignore the sentiments behind the Occupy movement because some Occupiers have criticized our legal system, which much like our political system, often favors the rich and powerful.

The chasm between the rich and the poor is growing  as our middle class disappears.  Poverty is growing.[i]  When we are pick juries, we understand that most, if not all, jurors are part of the 99%.  Those same jurors may view us, or at least the more successful among us, as being part of the 1%.  Two major complaints by the Occupiers involves the high cost of education, resulting in burdensome student loans, and the lack of available medical care.

In contrast, Cuba offers free medical care and education for its citizens and free education. Cuba’s literacy rate of approximately 96% is to be envied and it leads Latin American in primary education.[ii]

So, what do these countries have in common?

Cuba is one of five countries that still retains a communist ideology (China, North Korea, Laos, and  Vietnam are the other countries).[iii]  The Cuban government has acknowledged its system of Communist rule is not working.  Many Cubans struggle daily to satisfy basic needs, often waiting in long lines or trading on the black market.  They complain of the discrepancy between the poor and the” 1%” of Cubans who enjoy a satisfying lifestyle.  President Raul Castro has implemented “reforms” that mirror the capitalist model practiced by China.   These changes are having an impact on Cuba’s legal system.

One cannot consider Cuba’s legal system apart from its political and social systems.   For instance, Cuba recently agreed to release 2,900 prisoners, many of them political prisoners.  The Cuban government has also expressed a willingness to consider releasing American prisoner Alan Gross, now serving the second year of a 15-year sentence in Cuba, if the United States agrees to release the Cuban Five, who are imprisoned in the United States for espionage and other charges.  Gross was arrested in Cuba for delivering satellite telephones and other communications equipment as part of a U.S. agency effort to aid Jewish and other non-governmental groups in Cuba.[iv]

Even though the United States and Cuba seem to be at opposite ends of the political spectrum, many citizens of both countries share a common point of view that their respective systems are broken, and an equally common hope for greater economic equality.  Let’s consider a few areas:

The sale of real and personal property

After the Revolution in 1959, the concept of private real estate ownership disappeared although Cubans were allowed to hold title to their homes.  Wealthier Cubans fled the country and the State became the owner of this real estate.  For the next 50 years, Cubans were forbidden from buying or selling real property.  Instead, moving up or down was accomplished by swapping real estate (permuta) or passing on to your children.[v]  For instance, if you wished to swap real estate in Havana, you might post your real estate listing at a square in Havana and retain a “broker” – somewhat akin to a casual Remax agent – who would assist you in locating and negotiating a swap.

Imagine, buying and selling real estate for the first time in 50 years!  (Foreign permanent residents may also buy and sell real estate.)   People can now downsize or upsize and put some extra money in their pockets.  It is a major development that will also have a profound impact on the social structure.  Although one may not see homeless people – the government promised everyone a roof – many Cubans live together as extended families in one dwelling.   New families often live with relatives, creating a demand for short-term room rentals or locations outside of their homes for some precious privacy.

The government is also easing restrictions on buying and selling automobiles made after 1959.  Tourists marvel at the amount of classic cars filling the streets.  Many of these cars are used as taxis, providing much needed support.  There are also a lot of classic cars that often break down and belch out exhaust on Havana streets.

I arrived in Cuba less than one month after this new reform, which went into effect in November 2011.   Some Cubans said little has happened in the way of buying and selling, some expressing a distrust  that they would lose their homes.  Many Cubans may be unable to take advantage of these reforms because they lack the financial resources to do so.   The mortgage will be resurrected and attorneys can aid in structuring land sale contracts.  One can see that this new change will allow for an expanded role by attorneys who can facilitate these sales, act as notaries, and prepare the necessary contracts.

Private Practice of Law

In 1956, dictator Fulgencio Batista ordered the University of Havana and its law school),[vi] founded in 1728, shut down because of student protests.  After the Revolution, many attorneys fled Cuba and the importance of the legal profession was substantially diminished.  Castro reopened the University of Havana, where he had earlier obtained his legal degree, although he nationalized education facilities and put an end to student demonstrations and political affiliations.

Before the Revolution, many attorneys were called on to handle disputes involving the U.S. and Cuba, reflecting America’s substantial involvement in Cuba.  Castro believed attorneys would be unnecessary in a socialist world.  Their importance decreased and some areas of law, such as real estate and mortgage law, were almost totally eliminated.  (In fact, no law students  graduated from the University of Havana in 1978 and 1979, and there were no enrollments in 1964-1965).  Attorneys later proved useful in institutionalizing the Revolution and providing counsel to the government as it struggled to find its place in the international economy.

The private practice of law was abolished, although some outspoken critics argue for independence.[vii]   Attorneys are now employees of the State, working in collective groups, known as Bufetes Colectivos.  The Bufetes were first established by the Ministry of Justice and are currently administered by the National Organization of Bufetes Colectivos (ONBC).[viii]  There are now over 2,000 lawyers in approximately 250 bufetes, and they often handle contract work and provide assistance to foreign nationals.  Attorneys may also  voluntarily join the National Union of Cuban Jurists, which comments on proposed legislation, publishes a law review, Revista Cubana de Derecho,  and organizes legal conferences.

After an attorney graduates from law school, usually the University of Havana or one of its outreaches centers, he or she relies on the University or State to find the attorney a job.  If you believe attorneys enjoy a higher standard of living, think again.  A taxi driver, who is able to collect tips, can make more money than an attorney.  Although it is considered a good profession with an income often better than the average, Cuban attorneys do not enjoy the same ability to earn money that exists in the United States.

These new reforms and the explosion of the tourist industry, have changed Cuba’s legal profession.   Attorneys are often involved in making sure contracts satisfy governmental standards.  After all, Cuban attorneys need to be educated in business dealings with foreign investors or that task will fall to the foreign entities’ attorneys. Cuba will need the help of its lawyers to deal with integrating a foreign influence while preserving the Cuban identity.

The legal profession has an important role to play in Cuba’s development.  Just as the persecution of lawyers and judges often marks the tightening grasp of a government, a government cannot be free until its legal representatives are free to independently practice law, select their own clients, and speak out against the government without fear of persecution.

Judiciary

One can only imagine the problems of trying to maintain judicial independence in a Communist state, although the studies suggest that it does exist.  Studies have shown that a large percentage of criminal cases are dismissed or overturned due to lack of evidence.

Judges are elected for unlimited terms and serve until they are no longer capable or they are removed.  Membership in the Cuban Communist Party is not required and a large percentage are not members.  Lay judges, who are elected for terms of five years, serve  along with professional judges.  Judges must met educational and experience requirements, and training is available.

While judges and attorneys are encouraged, and even officially mandated, to exercise their independence, they are still employed by the government and are expected to uphold principles of socialist legality.   The members of the highest judicial body, the People’s Supreme Court, are traditionally selected by Castro.

Marriage

The dominance of the machismo culture also has an effect on the family.  Quite often, the husbands have little participation in housework and child reading.  That may be one reason the divorce rate is so high, averaging around 70%.  This behavior was so pervasive, the government addressed it by amending its Family Code in 1975 to mandate that males should participate in housework and child care.  Good luck!  One wonders how often that law is enforced and exactly how to do it.

While divorces can quickly be accomplished without going to court and possessions are split equally, child custody disputes can end up in litigation.  Even with a high rate of divorce, Cuban couples often show up at the Palacio de los Matrimonios in Havana and can get married in a civil ceremony.  In the past, the State offered  gifts to marrying couples, which could be sold on the black market or could supplement basic needs, so some marriages were entered into partially to receive these gifts.  Marriages with foreigners are also used to obtain exit visas; however, non-Cubans are advised to seek legal advice in order to protect their assets before entering into marriage.

Self-employment and private businesses

The Cuban government laid off over 500,000 employees in early 2011 to help relieve its economic burden.  Castro announced Cuba would lay off approximately 1.3 million government workers, which constitutes 1 in 4 state employees.  In exchange, the government  opened up self-employment to 178 new professions.[ix]   250,000 self-employed (cuentapropista) licenses were added by the end of 2011 to the existing 143,000 licenses.   These business owners would be expected to pay a license fee and high taxes.

Cubans have already become accustomed to taking care of themselves as they are required to use their ingenuity to fill the gap between government subsidies and providing for their basic needs.  Older Cubans, who grew up with the promise that they would be taken care of in their retirement years, now are thrust into a position of taking care of themselves.  This new move coincides with extensive layoffs and is an attempt to deal with widespread unemployment, which is now called “self-employment.”

Tourism is Cuba’s #1 business.  Everyone wants to get into the game of serving the 1.9 million  foreign tourists who visit Cuba annually.  Many of these new businesses serve the tourist trade, including transportation (taxis, etc.) and food services.

Cubans operate in competition with State or foreign hotels by providing rooms in the homes of average Cubans.  These casa particulares provide much needed income to ordinary Cubans, but the owners pay for a license and taxes, which can be quite stiff.  Casa particulares are promoted as a means of connecting to ordinary people and keeping accommodation costs low ($25-50).  There is also a black market in this area as operators attempt to avoid the license and taxes.

Cubans can also open up small restaurants or paladares in their homes, dedicating one room to operating a restaurant.  Don’t expect lobster or beef in those locations as the government forbids such sales as a threat to State-run restaurants.  (Such delicacies are hard to obtain and when they are obtained, they might be labeled under a different name.)  These restaurants have to be licensed and pay high taxes.

The quality of good and service varies.  You may experience exquisite home cooking or you may discover all cooks are not created equal.  These restaurant owners are still dependent on the State for their wholesale food supply, so that the menu may be dictated by the availability of certain foods.  Some operate illegally so a to avoid license fees and taxes, risking fines and arrests.

The government is also seeking to enhance self-employment and production in the agricultural area.  It distributes parcels of idle State land to individuals and cooperatives, who may sell excess produce in farmers’ markets (agropecuarios).  The government has also cut prices for farm tools and supplies while providing help to self-employed farmers.

Tourism

Cuba’s huge debt and budgetary deficits has helped fuel the growth of the tourist industry.  Before the Revolution in 1959, 85% of the holdings in Cuba belonged to the U.S.  Cuba, and Havana in particular, had became a playground for the rich and famous (or infamous).  During Prohibition, affluent U.S. citizens freely visited Cuba, just a short hop of 90 miles from Key West, and drank to their heart’s content.  The American Mafia invested heavily in hotels and gambling.  Gangster Meyer Lansky built the largest luxury hotel in Havana, the Riviera and lavished gifts on Batista, who appointed Lansky as a special advisor on gambling reform.  Needless to say, Lansky suffered huge losses as a result of the Revolution.

The Cuban government now welcomes foreign investment as a means to deal with its budget deficits. Cuba still owes Russia over $20 billion dollars and now faces growing pressure from China, which is pressing the government to enact economic reforms because of its growing debt owed to China.

The government has entered into joint ventures, usually retaining 51% interest and ownership of any real property, to develop more resorts to handle the tourist trade.  (Foreign investors can lease land for up to 99 years, but the government is also expected to ease restrictions on foreigners purchasing homes in Cuba.)  Dozens of projects on the board, the largest being La Altura, which involves British and Spanish investors, who plan to complete a beachfront resort approximately 96 km. west of Havana and it will feature an 18 hole championship golf course, marina, five star hotels, and hundreds of timeshare apartments.  In March 2011, the Professional Golfers’ Association signed an exclusive agreement with Leisure Canada, Inc. to develop world class golf courses in conjunction with a Vancouver-based real estate company.[x]

Critics complain that Communism has created a culture of dependency by its people with little incentive to work hard.  For years after the Revolution, Cuba was dependent on the Soviet Union.  The collapse of the Soviet Union in 1991 marked the beginning of Cuba’s “Special Period” (1991-2005), which imposed major hardships on Cubans.

I observed many older Cubans, who rely on pensions averaging $10 per month, out on the streets begging for money to supplement their basic needs.  Prostitution (jinateras and jinateros) is rampant and quite understandable, given the fact that a prostitute can make much more than a nurse or teacher.  Before the Revolution, many complained about the prostitution and that Cuba had become a playground for the United States.  Now one can see that prostitution only serves a different master.

As more and more tourists come to Cuba, introducing new products to the culture, I imagine it will spark a desire in Cubans for such new products, as well as a growing interest in cell phones, IPods, Kindles, and the Internet.

The U.S. Embargo

The U.S. embargo has also hurt Cuba by restricting a potential major source of tourism from its closest neighbor.  Many Americans can enter Cuba by obtaining general and specific licenses, or by entering through counties such as Canada and Mexico.

Many believe that the U.S. embargo (bloqueo) means that the United States is not involved in Cuba.  Not so.  In fact, the United States is Cuba’s fifth largest trading partner behind China (28%), Canada (27%), Netherlands (11.1%) and Spain (4.7%).[xi]  The Trade Sanctions Reform and Export Enhancement Act authorizes direct commercial food experts on a cash basis.  In 2000, Cuba bought $2.6 billion in U.S. food exports after Congress exempted agricultural products from the embargo.  The U.S. sends Cuba exports, such as corn, wheat, soybeans, powdered milk, pork products, and chickens.

The U.S. is also poised to enter into investments in Cuba once the embargo is lifted.[xii] (It was suggested to me that it already has with its humanitarian aid and other ventures, including partnering with international firms, who then work with Cuba.)  Many are opposed to the embargo.  In fact, there are so many loopholes for visiting Cuba  that it might as well not exist.  Members of the United Nations have voted for years against the embargo, with only U.S. and Israel now supporting it.  In 1998, Pope John Paul II visited Cuba and denounced the embargo.

One gets the sense that everyone – both in Cuba and the United States – is waiting for the Castro brothers (Fidel and Raul) to die before any real change will occur.

Conclusions

One cannot honestly examine Cuba without considering the toll the Revolution and embargo have taken on Cuban families.  Over 1.5 million Cubans live outside the country.  Travel in and out of the country by Cubans is restricted.  Many families are dependent on those outside Cuba to send money and other items.  Many are torn apart by politics.  All can agree these events have had a profound and damaging effect on Cuban families.

Ultimately the people of Cuba will have to decide if the benefits of the Revolution and the economic reforms are enough.  As a City guide explained, “The Cuban people are seeking ways to take back their country and its affairs, while avoiding relying too much on other countries as we have done in the past.  Now Cuba will dominate its own affairs, following a capitalist model of communism.”

In Trinidad, a Canadian tourist asked a Cuban artist, “What do you have to complain about?  You have a beautiful climate, free education and free medical care?”  Maybe that’s true, but is that the price of giving up personal freedoms?  The Cuban, who had trouble buying art supplies and was not able to freely express himself,  simply shook his head and said, “She just doesn’t understand.”

Despite being at opposite ends of the political spectrum, It seems Cubans and Americans want the same things, economic freedom and the freedom of expression.  In that regard, we share a common vision and hope for a more equal and balanced system of government.

http://www.havana-guide.com/doing-business-in-cuba.html

For more photographs and information on Cuba, visit Donna’s gallery at www.PhotosbyDonna.Smugmug.com


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