San José, Costa Rica, since 1956

How Many Votes Does CAFTA Need to Pass?

NO official word has been given onhow many votes the Central AmericanFree-Trade Agreement (CAFTA) with theUnited States needs to be approved byCosta Rica’s Legislative Assembly.Some legislators and constitutional lawspecialists say CAFTA requires a simplemajority of 29 of 57 congressional deputies,while others say it needs a two thirdsmajority of 38.The key to deciphering how manyvotes CAFTA must have is Article 121 ofCosta Rica’s Constitution, which grants theassembly power to approve or reject internationaltreaties. Under the article, treatiesthat transfer government powers to supranationalentities for the purpose of achievingcommon regional objectives requireapproval by no less than two-thirds of theLegislative Assembly.A supranational entity is one that iscapable of making decisions contrary tothe will of the States that form part of it.Compliance with the entity’s rulings ismandatory for all parties. An example isthe United Nations Security Council.Experts consulted by The Tico Timesdisagreed about whether CAFTA transferspowers to a supranational organ.A constitutional scholar who has writtenseveral textbooks on Costa Rican constitutionallaw, Rubén Hernández, saidCAFTA does not transfer governmentpowers and should need only a simplemajority to be ratified.“That problem is resolved,” he explained.“It’s very clear, there’s nothingto discuss. Other free-trade agreements,such as those with Mexico and Canada,have been approved by simple majority.”When the assembly studied CostaRica’s free-trade agreement with Canada,the same question was raised. The matterwas taken before the ConstitutionalChamber of the Supreme Court (Sala IV),which ruled that only a simple majoritywas needed, according to Hernández.Marvin Carvajal, a professor of constitutionallaw at the University of CostaRica (UCR), disagrees with this interpretation.Carvajal said CAFTA transfers governmentpowers to a supranational entity;namely CAFTA’s Free-Trade Commission.The commission, which is required to meetat least once a year after CAFTA goes intoeffect, is in charge of reviewing variousaspects of the trade agreement’s implementation,he explained.The commission has the power to makereforms to the treaty – a power, Carvajalsaid, it receives from the executive branchesof the countries involved.“It is valid under the Constitution tocreate organs of this nature, but it requiresa qualified (two-thirds) majority, as nationalpowers are being transferred to communityorgans,” he explained.“In any case, it would be ideal for it torequire 38 votes, because it is a veryimportant treaty – for better or worse – forthe future of the country. The greater theconsensus in regard to the treaty, the morepeaceful and effective its implementationwill be.”The final decision on the number ofvotes CAFTA needs will be made by thepresident of the Legislative Assembly(elected each May 1) when the issue goesto vote.However, Carvajal pointed out, thatdecision can be appealed before the SalaIV.BEFORE it can be voted on, CAFTAmust go through the LegislativeAssembly’s Permanent Commission onForeign Relations, a multiparty nine-membercommission in charge of studying allinternational conventions, treaties and resolutionsfor Costa Rica.The commission has no time limit, andcan study CAFTA and other treaties for aslong as committee members consider itnecessary.The Foreign Trade Ministry(COMEX), whose representatives negotiatedCAFTA, has said it will submit thetrade agreement to the commission as soonas Costa Rica and the other CentralAmerican countries finish negotiating withthe Dominican Republic the terms of theirrelationship under CAFTA (TT, June 18).The Dominican Republic is expected tobecome the seventh country in the agreement.Although last month trade officials saidthey expected to submit CAFTA to the legislativecommission this month, PresidentAbel Pacheco this week dodged the question.He told reporters at his weekly Cabinetmeeting Tuesday that in any case, CAFTA isnot likely to be submitted to the U.S.Congress this year. He also expressed doubtsabout CAFTA’s future in the United States,especially if U.S. President George W. Bushloses the upcoming presidential elections(TT, June 4). His comments drew criticismfrom CAFTA supporters this week.THE legislative commission beganinvestigating CAFTA last year by studyingnews reports and information supplied byCOMEX. Costa Rican legislators were notgiven access to drafts of the CAFTA textsuntil after the country finished negotiatingthe treaty in January (TT, Jan. 30).Despite outcry and claims of lack oftransparency from several groups (TT,Sept. 26, 2003), trade officials kept theCAFTA texts under wraps, saying theyconstituted confidential information. TheSala IV backed them on the issue.Since February, the commission hasbeen studying parts of the drafts of thenegotiating texts, and then began studyingthe final version of the CAFTA texts afterit was signed in May (TT, May 28). Thefinal texts are available online new/fta/Cafta/final.“It’s hard to tell how long it will be studiedby the commission,” said Liliana Salas,a Social Christian Unity Party congresswomanand the commission’s secretary.“Time varies. Some projects have beenthere for years. I don’t expect it will takeless than nine months or a year to discuss.”Once the commission finishes studyingCAFTA, it will issue a report to the rest ofthe assembly with its impressions. If there isdisagreement within the commission, partiescan issue minority reports.“What is important is to begin ademocratic discussion on the treaty assoon as possible in order to debate all theissues in depth,” Salas explained. “Thereneeds to be opportunities for commissionmembers to express their doubts and havethem clarified by government officialsand other experts.”ONCE it leaves the commission,CAFTA will be sent to the floor of theLegislative Assembly.Deputies are not allowed to propose anychanges. However, each of the 57 deputieswill be allowed an hour to refer to the treatybefore the rest of the assembly. Once thedeputies have spoken, CAFTA will be votedon for the first of two times.As with all international agreementsthat the assembly votes on, after the firstvote, CAFTA must be sent to the Sala IVfor a constitutional review that may notexceed one month’s time. However,experts say a month may not be enoughtime to properly look over the 2,400 pagesthat make up CAFTA’s text.“The Sala will have a very intense jobto do,” Carvajal said. “It would be convenientfor the Sala to begin studying itnow.”If the Sala IV justices find that parts ofCAFTA violate the country’s constitution,the text will be sent back the LegislativeAssembly. Legislators can agree on analternate interpretation of the parts in question.However, the governments of bothCosta Rica and the United States mustagree on the interpretation for it to be valid,according to Carvajal.Once the text is reviewed by Sala IV,CAFTAwould be voted on for a second andfinal time. Legislators can either approve orreject it, but by how many votes?Only time will tell.

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