The 1940 Cuban Constitution's Article 37 provides a legal framework to outlaw the Communist Party of Cuba without enacting new laws or applying retroactive measures, argues Eduardo Garaicoa, co-founder of the Cuban Constitutionalist Movement (C40), in a conversation with Tania Costa.
Garaicoa elaborates that this article "clearly states that registering or allowing the existence of totalitarian parties or organizations is prohibited," meaning those that threaten popular sovereignty, democracy, or the republican form of government.
The original text of Article 37 proclaims it "unlawful to form or maintain political organizations contrary to the representative democratic regime of the Republic, or that threaten the full sovereignty of the nation."
Garaicoa asserts that the conclusion is straightforward: "Utilizing the 1940 Constitution, the Communist Party can essentially be declared illegal entirely." Furthermore, he noted, it is possible to prosecute individuals responsible for crimes against humanity, denounce the debt incurred by the communists as odious, and demand compensation from foreign companies that have exploited Cuban workers in collaboration with the Castro regime.
Historical Context of Article 37
The argument for declaring the Communist Party illegal is not based on a novel interpretation but rather on a concrete historical precedent. In 1948, during Carlos Prío Socarrás's presidency, the Cuban Congress initiated a legislative project to exclude the Communist Party from political life, relying precisely on Article 37.
The legislative process was prolonged—"it drags on here a bit, gets debated there a bit," Garaicoa recalls—until Fulgencio Batista's 1952 coup completely halted it.
The Revival of Anti-Communist Efforts
Nonetheless, the initiative did not perish. Following the 1954 elections, which Garaicoa describes as "somewhat spurious, Maduro-style," the project gained momentum and culminated in the establishment of the Bureau for the Repression of Communist Activities (BRAC).
This historical journey is, for the C40 co-founder, evidence that the Cuban Republic itself, under the 1940 Constitution, had already embarked on the path to outlaw communism before the dictatorship interrupted it.
Legal Distinctions and Contemporary Debate
The distinction emphasized by Garaicoa is crucial from a legal standpoint: the 1940 Constitution does not ban parties based on ideology but rather on their totalitarian and antidemocratic nature, which—according to him—makes this measure solid and non-arbitrary.
Founded in 2018, the C40 Movement maintains that this Magna Carta was never legally repealed, as the text itself does not allow for repeal, only modification, and thus remains legally valid. In this context, restoring the C40 would not constitute a legal rupture but an act of legality.
In 2026, the debate has intensified, with exiled figures like Armando Valladares and Carlos Saladrigas expressing support and opposition to the restoration of the C40 as the foundation for a potential democratic transition in Cuba.
Garaicoa concludes with a decisive statement: "The Communist Party can only be rejected, along with all its activities and everything they have done and might do in the future, through the 1940 Constitution."
Exploring the Implications of the 1940 Constitution
How does Article 37 of the 1940 Constitution impact the Communist Party?
Article 37 prohibits the formation or existence of parties or organizations that are totalitarian, which could be used to declare the Communist Party illegal under the 1940 Constitution.
What historical events support the argument against the Communist Party?
In 1948, a legislative initiative was launched to exclude the Communist Party from political life, based on Article 37, but was interrupted by Batista's 1952 coup. The effort was later revived in 1954.
Why is the 1940 Constitution still considered valid by some?
The C40 Movement argues that the 1940 Constitution was never legally repealed, only allowing for modifications, thus remaining in effect legally.