By Rudo Kemper, CHC Web Communications Technician
Gaceta Oficial announces at 3:00pm on July 8, 1940 that the Constitution was promulgated in Guáimaro. Link to IBISweb record.
Seventy years ago on October 10, 1940, the Cuban government promulgated a new Constitution in Guáimaro, a historic town in the Camagüey province. The Constitution, known later as the 1940 Constitution of Cuba, was the culmination of a six-month debate that took place during the presidency of Federico Laredo Brú. Comprising 286 Articles grouped in 19 Titles, it was drafted with the collaboration of a Constitutional Convention, presided over by Carlos Márquez Sterling and composed of seventy-six delegates from nine political parties. These delegates represented practically all sectors of Cuban political opinion according to the International Commission of Jurists (ICJ) in 1962. The ICJ furthermore describes that the 1940 Constitution was characterized by “the rare balance it established between republican, liberal and democratic postulates on one hand and the demands of social justice and economic advancement on the other.” 
On the same day, Cuba held the first presidential election under the 1940 Constitution, resulting in the election of Fulgencio Batista y Zaldívar over former president Dr. Ramón Grau San Martín. Although Grau, one of the delegates, was instrumental in the passing of the 1940 Constitution, Batista enjoyed strong support from a coalition of political parties, and served out a four year term as the first President of Cuba under the 1940 Constitution. Grau succeeded Batista four years later, but when Batista returned in 1952 under a coup d’état, he suspended parts of the constitution via a Constitutional Act passed on April 2, 1952.
Dr. Carlos Márquez Sterling is presented the golden pen using which he signed the Constitution. From Memorias de un estadísta: frases y escritos en correspondencia. Link to IBISweb record.
The Cuban lawyer Carlos Márquez Sterling, who presided over the 1940 Constitutional Convention, ran for the Cuban presidency in 1958. During the election, which was to be held one year before the Cuban Revolution, Márquez Sterling famously asserted that Castro’s coming to power would be the death knell of democracy in Cuba. In his campaign, he championed the Constitution that he helped usher in 18 years ago, asserting that “ni el gobierno de Batista ni la sangre derramada por los nuevos caudillos perniciosos serán la solución correcta del grave problema cubano, y sólo unas elecciones libres, con todas las garantiás ofrecidas por la Constitución del 40 podrán devolver la paz a Cuba.” (Translation: neither the government of Batista nor the blood shed by the pernicious new caudillos will be the right solution for the momentous Cuban problem; only free elections, with all of the guarantees offered by the 1940 Constitution, can return peace to Cuba.“)  CHC holds the papers of Márquez Sterling, which primarily consist of correspondence from after he went into exile in the United States in 1961. Visit the finding aid of the Carlos Márquez Sterling papers.
As leader of the 26th of July movement during the Cuban Revolution, Fidel Castro claimed (e.g. in his October 1953 “History Will Absolve Me” speech) that one of the Revolution’s main goals was to reinstate the 1940 Constitution. When he came to power following the abdication by Batista and his collaborators, however, Castro proceeded to repeal much of the Constitution by way of various reforms that culminated with it being replaced by the Fundamental Law decreed on February 7, 1959. Although the Fundamental Law repeated many of the articles from the 1940 Constitution word for word, it contained key alterations in the form of “transitional and exceptional” provisions and reforms of the organs of the state. It was eventually replaced in full by the Socialist Constitution of 1976.
A copy of the 1940 Constitution published by Movimiento Patriotico Cubo Libre (Patriotic Movement for a Free Cuba), 1960. Link to IBISweb record.
The 1940 Constitution continued to have a life of its own outside of Cuba, however. The Constitution was often republished by Cuban exile groups and organizations in the United States, who considered this constitution to be the legitimate source of Cuban law, with Castro’s legal reforms and his Socialist Constitution of 1976 being fraudulent. One important reason why the 1940 Constitution is continued to be taken as a legitimate legal document is the fact that the alterations to the Constitution by Castro were not modified through the established legal procedures outlined in Articles 285 and 286.
The continued importance that the 1940 Constitution holds outside of Cuba is evident in the post-1960 work of José Morell Romero. Morell Romero served as a justice of the Cuban Supreme Court during the period of 1950-1960 and as a leader of various exile groups upon arrival in the United States. Morell Romero resigned from the Cuban Supreme Court on November 12, 1960, noting in his letter of resignation that:
I do not share the opinion of the majority of the members of the Court of Constitutional and Social Guarantees and the Government Division, as expressed in their judicial or executive action, concerning the scope of the powers of the de facto Government in respect to what they have been pleased to call its ‘constitutive powers.’ I must repeat that the constitutive power resides in the people alone and must be manifested through a public referendum, as was done in 1940 when the lawful Constitution of the Republic was adopted…the de facto Government is not empowered to take measures of a constitutive nature that conflict with those adopted by the People in lawful organization and constitution and which form the historical basis of the Cuban nation. 
Morell Romero’s service in Cuban exile groups seeking to achieve the liberation of Cuba led to his being sworn in on February 24, 1995 as provisional president of Cuba in exile under the 1940 Constitution, in accordance with provisions established in Article 149 of the Constitution. Article 149 stipulates that, in the case that appropriate presidential substitutes, the conditions for which are stipulated in Title X of the 1940 Constitution, are lacking, “the most senior Magistrate of the Supreme Tribunal shall occupy the Presidency of the Republic in the interim, and shall call national elections within a period of not more than ninety days.” Hence, since Fidel Castro did not meet these conditions, Article 149 was invoked to allow for the oldest Supreme Court judge to be elected provisional president in exile, which was José Morell Romero. He served as provisional president in exile until his death.
In his statement of acceptance of office he invokes Article 149 as justification for his mandate in the absence of the rule of law in Cuba, and writes that “to the greatest extent possible, given its nature and circumstances, the government of Cuba in exile will adhere to the principles established in the Cuban Constitution of 1940.” We reproduce below this letter, as well as several other items including the cover page of the first issue of the Gaceta Oficial of the Cuban Constitutional Government in Transition, published the same year. Further into this issue, Morell Romero asks governments of other states, as well as the Organization of American States, to recognize the Constitutional Government in Transition as the one and only legitimate representative of the Cuban nation.
The José Morell Romero Papers were donated to the Cuban Heritage Collection this year by his daughter, Silvia Morell Alderman. To learn more about this collection, visit the finding aid online.
Acceptance of Office and Statement of Principles to assume the provisional presidency of Cuba in exile, 1995. Link to José Morell Romero finding aid.
The first monthly issue of the Gaceta Oficial of the Cuban Constitutional Government in Transition, written by José Morell Romero in his capacity as President of the Cuban Nation for the democracy transition of Cuba, 1995. Link to José Morell Romero finding aid.
International Commission of Jurists. 1962. Cuba and the Rule of Law.
Geneva: The Commission, 79.
 Márquez Sterling, Carlos. 2005. Memorias de un estadísta: frases y escritos en correspondencia. Miami: Ediciones Universal, 36.
 Cuba and the Rule of Law, 73.