Miguel A. Faria Jr., M.D. Tuesday, July 17, 2001.
NewsMax.com
In Part
II of this essay, we discussed the issue of whether the Cuban people would
be better off living in a social(ist) democracy or a constitutional republic
after the fall (death) of Fidel Castro. We discussed that, in its essence, a
democracy reflects the absolute rule of the majority of the people, while a
republic prescribes a government of written laws.
It should also be stated that governance via democracy (i.e., the rule of
the many) or oligarchy (i.e., the rule of the few) reflects the arbitrary,
personal rule of men, whereas a constitutional republic prescribes the
impersonal rule of law, constitutional laws.
Another inherent difference between the two forms of governance is the
concept of rights. In a democracy, a government "of the majority of the
people," the populace, can vote or grant entitlements to themselves or to
politically favored minorities whenever they want. Wealth redistribution
(socialism by any other name) takes place on a whim, and potentially at the
expense of productive minorities that may be weak and vulnerable to expediency
or to the political correctness of the time. In this regard, the Jews,
throughout the ages, have many stories to tell us.
Intrinsic to the republican form of government is the concept of natural
rights. It is this concept of inalienable natural rights, human rights that
cannot be breached even by popular majorities, that is inherent to the Western
concept of constitutional governance within republics, but not necessarily of
democracies. It is this brilliant concept of natural rights that we want to
explore in Parts III and IV of this essay as it might refer to a future
government in Cuba.(1)
In the various discussions about oppression and tyranny, referable to the
totalitarian dictatorship of Fidel Castro, Cuban exiles and even Cuban
dissidents within the island frequently refer to the United Nations Charter as
an exemplar of pronunciamentoes and protector of human rights. It¹s not.
U.N. rights are a deceptive illusion in theory and practice.
The theory of natural rights will be discussed in this article. As for
actual practice, we should say that selective application and enforcement of
human rights by the U.N. perverts whatever benefit Cuban political prisoners
could derive from empty U.N. human rights declarations.
Ask the living martyr Dr. Oscar Elias Biscet, the principled Vladimiro Roca
and José González Bridón, and the courageous Maritza Lugo
Fernández, who despite U.N. human right proclamations are still
incarcerated in Cuban jails for non-violent opposition to the communist regime.
Ask exiled freedom fighters such as Emilio Adolfo Rivero and Luis Zuñiga,
who even though they themselves have reached freedom, continue to fight
indefatigably for our enslaved brethren in Cuba.
What are these natural rights that I refer to? They are God-given or
nature-derived human rights, basic rights that are not government-granted, as in
the case of U.N. rights. Natural rights are intrinsic to our humanity and cannot
be withdrawn by any government.
The U.N., for example, enumerates a myriad of "rights" in its
various charters only to qualify them out of existence in the same document a
few sentences later. Take for instance, the 1966 U.N. International Covenants on
Civil and Political Rights granting the rights to "freedom of thought,
conscience, and religion - subject only to such limitations that are prescribed
by law and are necessary." [Emphasis added.](2)
You see the U.N. is a "democratic," supranational organization,
wherein the institution of government is supreme and paramount over the
individual. So, in U.N. documents, rights are granted but then are subject to
arbitrary cancellation by the state under the auspices of U.N. authority.
Sometimes the cancellation of "rights" occurs in the same paragraph in
which the alleged "rights" are granted or in a separate clause that
immediately follows the granting of the mentioned "right."
The same is true for the 1948 U.N. Universal Declaration of Human Rights,
which, after enumerating a myriad of "rights and freedoms," states: "these
rights and freedoms may in no case be exercised contrary to the purpose and
principles of the UN."(3) In effect, this qualification nullifies the
previous conferred "right" out of existence, at the whim of the
leadership (and majority vote) that happens to preside and vote in the U.N. at
the moment!
U.N. 'Rights' Mean Nothing
There is not one U.N.-granted "right" that is inalienable or
inviolable. Remember: What government grants, it can also take away.
Instead, consider the First Amendment to the U.S. Bill of Rights that
states: "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and
to petition the Government for the redress of grievances."
The Cuban Constitution of 1976 is derived from an old Stalinist Soviet
document (circa 1936) and, like the U.N. Charter of Rights, grants citizens
rights that are illusory and, frankly, not worth the paper they are written on.
In reference to that communist constitution, the legal scholar, Alberto
Luzarraga, writes, "the monstrous shyster Fidel Castro used that
constitution, not to limit his power but to limit liberty."(4)
So like the U.N. Charters, the Cuban Constitution of 1976 states in Article
52(1): "The State recognizes that citizens have the rights of freedom of
speech and of the press, as long as these conform with the ends of the socialist
society." [Emphasis added.]
Furthermore, the individual is subservient to the collectivist state, "the
material conditions for the exercise of those rights extended through the press,
radio, television, movies and other media of mass diffusion are the property of
the State, society and they cannot be subject to private ownership, to assure
their use is exclusive to the interest of the working people and the interest of
society." As if those qualifications were not enough, the second clause of
that article adds: "the law regulates the exercise of those liberties."(5)
Article 54 makes allusions to freedom of association and conscience, but
these activities, including activities of religious institutions, are "subject
to regulation by the laws of the State." Likewise, Article 55 of the Cuban
constitution states that "the home is inviolable"; but then it adds, "except
for cases prescribed by law."(5)
Article 61 states, "None of the liberties recognized by the
constitution to citizens may be exercised against the constitution and the laws
and the existence and the ends of the socialist State or against the decisions
of the Cuban people [democracy] in building socialism or communism. The
infraction of this principle is punishable." I don¹t think an
explanation here is necessary. Again, you get my drift.
The supreme function of government in a republic, according to our Western
concept of constitutional polity, is to guarantee citizens the natural rights of
the individual and, at the same time, to define and limit the power of
government. Natural rights are basic, individual human rights - namely, the
rights to life, liberty, acquisition of property, and the pursuit of happiness,
which are conferred in the United States Declaration of Independence and in the
U.S. Constitution.
These individual rights are derived from the laws of nature and a gift from
nature¹s God, and thus, they cannot be taken away arbitrarily by the state.
That is why the First Amendment to the U.S. Constitution states that "Congress
shall make no law" regarding those natural rights; in contrast to
U.N.-granted "rights" or, more apropos here, to the "rights"
granted by Fidel Castro to Cuban citizens under the communist Cuban Constitution
of 1976.
Incidentally, the deceptive and illusory protection of human rights in the
Cuban Constitution is not unlike the protection afforded today to most citizens
by the vast majority of the constitutions of most nations of the world. The U.S.
and Switzerland are today the most visible, and remaining, exceptions to most of
the other constitutions of the world, either among the many European social
democracies or the "People¹s Republics" of Asia and elsewhere.
The Theory of Natural Rights
and the Concept of the Law
The Western concept of natural rights originated with the Twelve Tablets of
the ancient Roman republic in the 6th century B.C. It was lost through the ages
until it re-emerged powerfully in English history, and in a different form, with
the Petition of Rights and the signing of the Magna Carta by King John in 1215.
Once again, it lay dormant until the advent of the English Civil War during
the 17th century of genius and the subsequent Enlightenment in the 18th century.
It was resurrected by such champions of individual liberty as Sir Edward Coke
(1552-1634), John Locke (1632-1704), and Sir William Blackstone (1723-80).
Locke held that all men were equal and free to pursue "life, health,
liberty and possessions." The government of a state was formed by a
contract engaged with the citizens it lawfully governed and which, necessarily,
had to be guided by justice inherent to natural law. Limited government with the
consent of the governed guaranteed that inalienable natural rights belonged to
all citizens and could not be trampled upon by the monopolistic tendency of
government to usurp power.
The English statesmen also argued that private property rights fell within
the purview of, and were inherent to, political rights. Sir Edward Coke, for
example, wrote that a man's home was his castle that not even the king could
enter without his consent. And John Locke held that: "Every man has a
property in his own person. This nobody has any right to but he himself. The
labor of his body and the work of his hands are properly his."(6)
America¹s greatest statesman and third U.S. president, Thomas Jefferson
(1743-1826), borrowed ideas from, expounded upon, and was indebted to his
British predecessors, particularly John Locke, for his own exposition of the
concept of natural rights, which he used in drafting the political document par
excellence, the U.S. Declaration of Independence, in which Jefferson wrote:
"We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain unalienable Rights,
that among these, are Life, Liberty and the pursuit of Happiness. That, to
secure these rights, Governments are instituted among men, deriving their just
Powers from the consent of the governed.
This is an appropriate ending for Part III of this essay. What better way to
end than with the words of Thomas Jefferson, who wrote the first draft of the
natural rights document par excellence, the Declaration of Independence! In Part
IV of this essay, we will expound on this theme and place the Cuban Constitution
of 1940 in perspective within this context, completing our tetralogy.
References
1. Faria M.A. Jr. The fall of Fidel Castro (Parts I and II
- The Aftermath). LaNuevaCuba.com, March 19 and 28, 2001.
http://www.lanuevacuba.com.
2. United Nations International Covenants on Civil and
Political Rights, Articles 18-22, 1966.
3. United Nations Declaration of Human Rights, Article 29,
Paragraph 3, 1948.
4. Luzarraga A. Enterradores de Leyes Comunistas.
http://www.lanuevacuba.com, April 16, 2001.
5. Cuban constitution of 1976.
http://www.cubapolidata.com/gpc/gpc_constitution_1976.html.
6. Locke J. Two Treatises of Government. 1690.
Miguel A. Faria Jr., M.D., is editor-in-chief of the Medical Sentinel of
the Association of American Physicians and Surgeons (AAPS), author of "Vandals
at the Gates of Medicine" (1995) and "Medical Warrior: Fighting
Corporate Socialized Medicine" (1997), and a contributor to NewsMax.com and
a columnist for LaNuevaCuba.com. He is working on a book about Cuba that will be
released in the fall 2001. Web sites: http://www.haciendapub.com and
http://www.aapsonline.org
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