Eduardo Garaicoa, co-founder of the Cuban Constitutional Movement (C40), outlined a compelling legal argument in a conversation with Tania Costa, emphasizing the urgent need to reinstate Cuba's 1940 Constitution rather than drafting a new one. Garaicoa asserts that without this step, those accountable for over seventy years of criminal activities cannot be prosecuted.
His argument is rooted in a fundamental principle of criminal law: laws are not retroactive. "If you don't revive the 1940 Constitution and instead create a new one, the laws won't have retroactive power. This means that under the new laws you draft, those you wish to prosecute haven't technically committed any crimes," Garaicoa explained.
Legal Justification for Using the 1940 Constitution
The solution he proposes relies on a precise legal thesis: the 1940 Constitution was never legally repealed but only suspended by force, implying that it technically remains effective. "In this context, the 1940 Constitution is still in force. The only thing required is to bring it back into use," the expert stated.
Garaicoa challenges the common terminology of "reinstating" the constitution. "When we say reinstate, we're misusing the term. What we need to do is start using the constitution, not restore it, which suggests it was repealed, something I believe never happened," he clarified.
Historical Justice Through Existing Legal Framework
Under this framework, all crimes committed since 1959 could be prosecuted using the legal provisions already present in that constitution, including the Social Defense Code, the Criminal Code, and military regulations relevant to those in military positions. "Every crime committed can be judged under the 1940 Constitution. All historical and so-called historical justice issues can be addressed," Garaicoa asserted.
The expert expanded the scope of this historical justice to encompass victims from various eras and regimes. "Children killed by Batista, children killed by the Castros, all those ad hoc executions without even a semblance of legitimate sentences... all of that must be properly addressed," he declared.
Regarding the victims, Garaicoa was firm: "Victims deserve, at the very least, historical recognition and compensation, placing them in the position they rightfully deserve."
Growing Debate Among the Cuban Exile Community
The discussion around the 1940 Constitution has intensified within the Cuban exile community throughout 2026. In June, prominent figures such as Armando Valladares and Julio Shiling publicly supported its restoration as the legal foundation for a democratic transition, while Carlos Saladrigas argued for drafting a new document.
In July, attorney Reimel Ariosa contended that reinstating the C40 would lead to the automatic release of political prisoners, with individual cases reviewed separately.
The C40 Movement, officially established on February 9, 2019, by Widney Lores, Humberto Mondejar, and Garaicoa himself, emerged in direct response to the new Castro constitution approved that same year. Its advocates argue that to nullify the 1940 Constitution, one would have to replicate Batista's actions in 1952—a coup d'état—rendering any subsequent constitution void.
Understanding the Significance of Cuba's 1940 Constitution
Why is the 1940 Constitution considered important for Cuba?
The 1940 Constitution is significant because it provides a legal basis to prosecute those responsible for crimes committed over the past seven decades, as it was never legally repealed, only suspended by force.
What legal principle does Garaicoa use to support his argument?
Garaicoa's argument is based on the non-retroactive nature of laws. Without the 1940 Constitution, new laws wouldn't apply retroactively, preventing prosecution of past crimes.
How does the C40 Movement plan to address historical injustices?
The C40 Movement aims to use the 1940 Constitution to address historical injustices by prosecuting crimes committed since 1959 under existing legal frameworks, ensuring victims receive due recognition and compensation.