San José, Costa Rica, since 1956

CAFTA Conflicts: ‘Witch Hunt’ or Valid Point?

If a lawmaker’s cousin exports pineapples and could benefit from a free-trade agreement under consideration in the Legislative Assembly, should the politician abstain from voting?

What about if a lawmaker’s spouse’s business could profit?

Questions like these became one of the top unofficial agenda items at the legislature this week, putting two faction heads on the defense and filling the spectator area next to the assembly floor with angry protesters.

Under debate: whether Mayi Antillón of the National Liberation Party (PLN) and Evita Arguedas of the Libertarian Movement should give up their right to vote on legislation that would allegedly benefit their husbands’ businesses. In recent weeks, opponents of the polemic Central American Free-Trade Agreement with the United States (CAFTA) and the telecommunications reforms that would accompany it have argued that because Arguedas is a partner in a telecom law firm, she should step down from a special telecom commission; Antillón’s husband, a lawyer, represents pharmaceutical companies, prompting activists to argue that the Liberation faction head shouldn’t vote on CAFTA because it would benefit her spouse’s clients (TT, Feb. 9, Feb. 16).

The two women are staying put –Antillón dismissed the allegations last week as part of a “witch hunt” designed to discredit pro-CAFTA legislators – but tensions ran high at the assembly this week. During an assembly-wide session Monday afternoon, protesters behind soundproof glass in the spectator area held up signs accusing both legislators of serving their own interests.

Some of the slogans got personal; “Evita, you’re prettier when you shut up,” read one.

The reason for the dispute’s intensity is that where CAFTA is concerned, every vote counts. Confusion remains about whether the pact needs 27 or 38 votes for approval, and Liberation and the other pro-CAFTA parties have just enough for the latter. Should Antillón and Arguedas step aside, their numbers would drop to 36.

The conflict has also raised questions that go beyond any one legislator, or CAFTA itself: Are Costa Rica’s anti-corruption laws too strict, too vague, or not strict enough? How much does a legislator need to benefit from a law before becoming ineligible to vote on it? And in a small country where, at times, everyone seems to be related, and where legislators are invariably well connected, is it reasonable to ask them to step aside whenever any family member could come out ahead?

The Interpretation Game

Legislators on both sides of the argument reacted the same way to Tico Times queries this week: with a shake of the head, expressions of resigned disgust, and assurances that those on the other side are taking matters to ridiculous extremes. For Antillón, Arguedas, and those who defend them, the strictness of anti-CAFTA unions and the opposition Citizen Action Party (PAC) would make it impossible for any legislator to vote on a broad agreement such as CAFTA; for PAC leader Elizabeth Fonseca, that argument is just a pretense for unethical behavior.

These differences stem from attitudes toward the Law Against Illicit Enrichment and Corruption, approved in 2004 just as corruption cases involving two ex-Presidents and a host of other public officials were coming to light. The law gave officials much less breathing room as far as ethics are concerned, setting a limit of ¢160,000 (approximately $307) on gifts they can accept and requiring them to declare all assets, including their clothes and the clothes of all the people who live in their houses.

Those provisions, criticized by some legislators before and after the 2004 as ridiculously strict, got additional attention in 2005 when then-President Abel Pacheco was criticized for accepting free plane tickets amounting to approximately $1,000. He began flying coach, earning him the nickname “Cinderella President” among other Central American heads of state.While some legislators criticized the President, others revived their arguments that the Law Against Corruption would scare qualified candidates away from public office.

The law “is already driving a lot of important people out of banks and out of institutions,”Miguel Angel Rodríguez, one of the two ex-Presidents under investigation for corruption, told The Tico Times that month.

“If I have to count my underwear and the underwear of my mate to be in public office, I am not going to do it” (TT, June 10, 2005).

Now, the accusations against Arguedas and Antillón have brought into the spotlight an aspect of the law that previously received less attention: its assertion that public officials cannot participate in any process that could provide “direct benefits” for them or their family members.

Last week, following a press conference by CAFTA opponents José Merino, a legislator for the Broad Front, and union leader Albino Vargas, at which the two men revealed the client list of Antillón’s husband, Luis Pal, and urged her to abstain from a vote on the trade pact based on the Law Against Corruption,Antillón said their comments represented a silly interpretation of the law.When CAFTA is designed to help the whole country, she said, one can’t expect all legislators who could benefit from the agreement to step aside.

PLN legislator Fernando Sánchez, who is President Oscar Arias’ cousin, Liberation legislator Luis Antonio Barrantes and political analyst Constantino Urcuyo concurred that the conflict has arisen from a bad interpretation of a bad law.

“There’s no legal text that obliges them to step aside – it’s unconstitutional,” Urcuyo, himself a former legislator for the Social Christian Unity Party (PUSC), told The Tico Times. “It’d be like if (a legislator) has a husband who’s a doctor, and (the legislator) has to vote about the CancerHospital.”

“Obviously, we all come from something – all of us, before being legislators, worked at something,” Sánchez said, arguing that Merino’s and Vargas’ logic would prevent most legislators from voting on CAFTA.

Fonseca, however, said the Law Against Corruption leaves little room for interpretation.

“Quite simply, the Illicit Enrichment Law is perfectly clear,” she said. “When there’s a conflict of interests, the legislator is obliged to abstain from a vote… It’s any direct,monetary benefit for the person or his or her family.”

She added that Antillón and Arguedas are “defending the indefensible.”

There’s also the question of whether or not the law goes both ways. For example, PAC legislator and rice producer Nidia González says rice producers will be “harmed” if CAFTA passes.

Under CAFTA, tariffs on rice imports would be eliminated over 20 years and rice wholesalers here would no longer be required to buy up domestic rice before turning to importers to buy the grain, a possibility that worries Costa Rican growers because of the hefty government subsidies U.S. farmers receive (TT, Aug. 25, 2006).

González said she plans to vote against CAFTA, but asked by The Tico Times this week whether she may have a conflict of interest in doing so, she said she would consult with her party leaders about whether she should abstain from a vote.

González came under investigation by her own party in July of last year when she supported a bill to create a fund for rice producers like herself (TT, July 7, 2006). The PAC ethics tribunal investigation is “still under way,” she said this week.

Are Reforms Needed?

Fonseca admits it might be worth the assembly’s while to consider amendments to the law, such as a substitute-legislator system so one lawmaker can step aside without destroying their party’s numbers. Now, the assembly president can substitute a legislator who abstains from a vote in commission for ethical reasons, but no procedure exists for substituting someone who abstains from a vote on the assembly floor.

Urcuyo also proposed this change and said the assembly should modify its bylaws to establish a clear procedure for evaluating whether a legislator faces a conflict of interest.

“They should have…an internal committee that can sanction legislators,” he said.

Most important, for Sánchez, is figuring out what a conflict of interest is in the first place.

“I’d be the first to support reforms (to the law),” he said. “It’d be interesting to better define what ‘conflict of interest’ really means, so it’s not just the interpretation of each person.”

Fonseca cited Sánchez as another example of someone who shouldn’t vote on CAFTA, because he recused himself from a recent commission vote on a sugar law, due to his family’s participation in the sugar industry. If he couldn’t vote then, he shouldn’t vote on CAFTA either, she said. (Sánchez said it’s a “manipulation” to conflate a specific law regulating the sugar industry with a broad agreement such as CAFTA.)

Asked whether it’s true that PAC is compiling information on pro-CAFTA legislators and their families in an attempt to put more votes in question, Fonseca demurred slightly –but said that more revelations may follow.


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