March 20, 2017 27 readings
Author: Governing Council of the Supreme People's Court of the Republic of Cuba
For Cuban judges, administering justice is a complex, exciting and transcendent task. To the particularly controversial nature of the jurisdictional activity itself, we add, in our case, the responsibility involved in doing so in the context of a society in which citizens know their rights and have a broad sense of right and right, as a direct consequence of the work of the Revolution.
The first paragraph of Article 120 of our Constitution establishes with clear clarity that "the function of imparting justice comes from the people and is exercised in the name of the latter by the People's Supreme Court and the other Courts that the Law establishes," thus defining the character essentially popular that has in our country the jurisdictional function.
For that constitutional postulate to reach full force, it is absolutely necessary that the men and women to whom the honorable mission of administering justice have been entrusted, constantly reflect on what this popular essence of our administration of justice means, as well as on the means and modes to specify it in each and every one of the judicial acts in which we participate, since as we well know the general only manifests itself in and through the particular.
It is necessary to understand that the aforementioned popular character of justice in Cuba cannot be assumed in any way as something abstract whose manifestation is limited only to the generally humble and proletarian origin of those who integrate the Courts, either as professional judges or as lay judges; or to the unquestionably democratic mechanisms by which we are chosen for the performance of these functions. Ultimately, what defines such a condition is the way in which the judicial processes and the decisions adopted in them contain and reflect in itself the focus, perspectives and point of view of the people, which is equivalent to saying that in the judicial action the social interest prevails.
Does the above mean a denial of the rule of law when elucidating judicial conflicts? Could it be said that by attending to the social interest, as a necessary reference in their performance, the judges would be losing the independence that should be inherent to the performance of their functions and that it also constitutes a constitutional imperative? Is the social interest necessarily contrasted with the individual interests to which judicial activity must also offer legal protection?
We will surely agree to answer these questions by stating that far from contradiction between the aforementioned aspects of the judicial task, what is evident is the necessary and close interrelation that must be established between them and the way they complement each other.
It is clear that when a judicial process is aired, the task of the judges is to apply the procedural and substantive norms in force to the particular case and make it free from influences outside their own conscience and the criteria that, personally and according to the Law, have been formed in relation to the matter. But the task of applying the Law to the specific case always goes, inexorably, through a process of interpretation that is characterized by a thorough analysis of the facts that are prosecuted and the elements inherent in the norm that is intended to be adapted, to determine if indeed there is correspondence between each other and, where appropriate, make use of the judicial discretion established in the corresponding regulatory provision.
It is in this process of formation of conviction, analysis, interpretation and decision-making, that Cuban judges must always keep in mind that we do not act in a personal capacity but by the mandate of society, that is, of the people who have given us the task to judge and decide on your behalf; and that mandate will only be fully fulfilled if we act in accordance with the values of the people, their idiosyncrasy, their intelligence, their integrity and their sensitivity.
Following that same reflection, it must be said that when a judge acts superficially, he is not fulfilling the mandate of the people because our people do not act lightly; when a judge acts with lack of sensitivity, when he acts with lack of firmness, when he acts with naivety or when he acts schematically, he is not fulfilling the mandate of the people, because our people neither suffer nor tolerate those inadequacies. How to explain then that sometimes some judges make these mistakes?
Our Judicial System, among other virtues, has the characteristic that the Courts function collectively in all matters and in all instances. That puts us in better conditions so that our actions are always consistent with what society expects of us, since the exchange of criteria and points of view and the adoption of collective and consensual decisions leave less room for error and narrowness in the analysis. Hence, it constitutes an imperative to improve our performance, extract the maximum potential to the collegial analysis of judicial decisions.
Special mention deserves the issue of rationality that we should print the judges to each and every one of our pronouncements. The daily work of the judge is to assess the options that are permanently raised by the matter being examined and select which of them is the most appropriate and correct. These are sometimes simpler and more complex decisions but they will always imply consequences for people directly involved in the matter and for others that are not.
In this constant process of decision-making is where common sense, the power of reasoning, intelligence and sensibility of judges are also permanently tested. That is where we need to be alert to dangers and threats that permanently lurk the intellectual capacity of those who deliver justice. Routine, superficiality, demotivation and undervaluation permanently ambush the good performance of the judicial function and unfortunately, sometimes, lacerate or kill the result of our work.
Each judicial decision of ours must be characterized, in addition to its legal support, its transparency, its level of weighting, its wisdom and for combining as particular as possible the particular interests with the social interests. The right sense of our laws and other legal provisions, in their correct interpretation and application, should not and can never lead us to make absurd, irrational decisions or that injure the general interests of the population. When a decision of this type is taken, it is not due to insufficiency of the Law, but due to insufficiency of the judges.
How can we solve such sacred things as the freedom of the people, the tranquility of the citizens, the heritage, the rights to housing, labor rights, etc., without feeling on our shoulders the weight of the immense responsibility that our decisions about it? What can justify that we do not always mobilize all our ability to reason, common sense and human and political sensitivity in each issue to be resolved or decided on the issues in which we intervene?
Acting in a logical, reasonable and consistent manner in delivering justice in our country is not only a matter of necessity and genuine aspiration, but it is also the only legitimate way to act; taking into account that, in general, our main legal provisions, both in the substantive and procedural order, establish the guidelines for justice to proceed in that way. The validity of principles such as the free appreciation of the evidence, the search for material truth, motivation of the sentences, broad judicial discretion and the adjustment and individualization of the Sanction, among others that inform our legal system, give legal support to the most broad rationality in our administration of justice.
José Martí, with the proverbial capacity he had to penetrate the essence of the phenomena, expressing his appreciation of how the judicial function should function, said: "It is true that judges have a duty to adhere to the Law, but not to subserviently because then they would not be judges but servants. They do not sit in that position to manipulate their intelligence, but to work just, but free. They have a duty to hear the legal precept, but they also have the power to interpret it. "