The reinstatement of Cuba's 1940 Constitution would have the immediate legal consequence of releasing all political prisoners in the country, as explained by Reimel Ariosa, a lawyer with the Gouper team, based in Valencia and the United States, during an interview with CiberCuba.
Ariosa's main argument hinges on the fact that the crimes for which the regime has jailed dissidents, activists, and citizens over the past 67 years simply did not exist in the 1940 Social Defense Code.
"Fundamentally, all political prisoners convicted under the offenses orchestrated by the Communist Party over 67 years in Cuba would be automatically freed, as these crimes were not recognized in the Social Defense Code," the attorney stated.
Significant Disparities in Cuba's Penal System
Ariosa further highlights that the current Cuban penal system is significantly distorted compared to the 1940 framework: "Often, stealing something trivial results in harsher sentences than committing more serious crimes, which in a normal, healthy society would carry heavier penalties, as they did back in 1940."
This disparity would also necessitate a reevaluation of common crime sentences.
Automatic Legal Repercussions
Regarding the process, Ariosa notes that "the criminal aspect would be resolved relatively automatically," yet stresses the need for case-by-case oversight to ensure correct application.
The legal resolution would take effect immediately upon the restoration of the constitutional framework.
Broader Implications Beyond the Penal System
The impact wouldn't be confined to the criminal sphere. Ariosa asserts that "the structuring of businesses, all companies that existed then and were illegally seized by the communists, would be reverted formally and legally, automatically."
It would then be the responsibility of a transitional government to give real substance to this reversal.
Addressing this transitional government, the lawyer issues a critical warning: lacking democratic election, it would not have the mandate to determine fiscal, penal policy, or the everyday functioning of the country.
"The transition is not a democratically elected government, implying it cannot dictate Cuba's fiscal policy, penal policy, or the ordinary functioning of a country. It lacks representative mandate for this," he emphasized.
Their role would be limited to laying the groundwork for the first free elections: "We must clearly understand that their sole responsibilities are to adapt today's dismal Cuban reality to conduct the first [elections]."
Constitutional Debate Intensifies
Ariosa's proposal is part of a heated debate gaining momentum in 2026. On June 1st, historical exile organizations unanimously agreed in Miami to adopt the 1940 Constitution as the legal basis for Cuba's future.
Figures like Armando Valladares argue that this document was never validly repealed and can be immediately applied.
The urgency of this debate is underscored by statistics: according to Prisoners Defenders, Cuba ended May 2026 with 1,281 political prisoners, accumulating a total of 2,076 political detainees since the July 11, 2021 protests.
In 2026, the regime's Presidential Decree 1212 pardoned 2,010 sentenced individuals, but explicitly excluded those convicted of "crimes against authority"—the category used to imprison dissidents—with only two recognized political prisoners on the list.
Understanding the Implications of Restoring the 1940 Constitution in Cuba
What would happen to political prisoners if the 1940 Constitution is reinstated in Cuba?
If the 1940 Constitution were reinstated, it would lead to the automatic release of all political prisoners jailed for crimes not recognized in the 1940 Social Defense Code.
How does the current Cuban penal system differ from the 1940 framework?
The current Cuban penal system is seen as distorted compared to the 1940 framework, often imposing harsher sentences for minor offenses than for more serious crimes.
What role would a transitional government play following the reinstatement of the 1940 Constitution?
A transitional government would not have the mandate to establish fiscal or penal policy, but would be responsible for preparing the country for its first free elections.