San José, Costa Rica, since 1956

‘Fast Track’ Bogged Down

For the second time in two years, members of the infamously slow Legislative Assembly have learned that trying to speed up a vote on key legislation sometimes takes more time than it’s worth.

Though the Constitutional Chamber of the Supreme Court (Sala IV) ruled last week that the assembly can apply a “fast-track” reform to a controversial trade pact with the United States, the agreement’s most vehement supporters briefly broke ranks this week, with some maintaining the supposedly speedier strategy will actually take longer than the regular route.

Why? The court also ruled that the assembly had violated its own procedures in processing the fast-track reform, which allows legislative leaders to limit discussion on the pact, and must fix the errors before continuing, which could take as much as two months.

Meanwhile, the Central American Free-Trade Agreement with the United States (CAFTA) will remain on the sidelines, and the Executive Branch has changed its target month for the pact’s ratification to August.

That’s the second change in its hoped-for approval date since the administration of President Oscar Arias began in May 2006 – from last December to April, and now four months beyond.

CAFTA stalwart Otto Guevara, a former presidential candidate and head of the Libertarian Movement – whose six legislative votes are key to the approval of both the fast track mechanism and CAFTA itself – said this week that the agreement’s supporters should sidestep the whole controversy and start discussing the trade pact now, the old fashioned way. It could reach a vote in only two months, he said.

However, Rodrigo Arias, President Arias’ brother and spokesman, said the government is sticking with its fast-track approach.

“I understand his attitude. I think it reflects anxiety about the fact that the free trade agreement isn’t proceeding as he wishes,” Arias said at a press conference Wednesday. “We really don’t have differences there.”

He explained that despite this, the President and his National Liberation Party (PLN), whose 25 legislators are the largest assembly faction, are proceeding with the fast track and hope CAFTA will reach a vote within five months. The procedure, a reform to article 41 bis of the assembly’s regulations, would allow legislative leaders to restrict discussion of CAFTA to between 22-28 sessions, meaning three to seven weeks depending on whether four or eight sessions are held per week (TT,March 2).

Political analyst Luis Guillermo Solís said this small Libertarian-Liberation disagreement could mark the beginning of a tricky juggling act for an Executive Branch trying to keep its 38-legislator pro-CAFTA coalition together. (Though it’s still unclear whether CAFTA approval requires a simple majority of 29 votes or a two-thirds majority of 38, Liberation leaders have made 38 votes their goal, to be on the safe side.)

“The Libertarians are already backing out of (the fast-track). They want to place more conditions,” Solís, who left the Liberation Party several years ago and opposes CAFTA, told The Tico Times Tuesday. He added that the Libertarian Movement, the Social Christian Unity Party (PUSC) and one-man faction José Manuel Echandi of the National Union Party (PUN) will pressure the ruling party to support their legislation in exchange for their CAFTA support, since Arias needs every one of their votes to approve the agreement.

“They all have their own agendas. They’re not doing this for the love,” he said, adding that it will be difficult for the Executive Branch to please the free-market Libertarians while simultaneously satisfying the demands of social democrats. “Sometimes I talk about this official (pro-CAFTA) bloc as a counterto-nature alliance.”

However, Guevara assured The Tico Times Wednesday that although he differs with the Arias administration’s strategy, the Libertarian faction will support it.

What Happens Next?

News of the high-court ruling unleashed a torrent of bureaucratic gibberish, leaving those blessed with ignorance of the legislature’s fine-print rules to wonder: what does it all mean? When will CAFTA, which Costa Rica signed in 2004 and has since been ratified and taken effect in all signatory countries except Costa Rica, reach a vote?

According to legislators, the process of correcting the errors noted in the Sala IV ruling – specifically, the justices ruled that leaders erred in dismissing dissenting lawmakers’ motions without hearing them – will take a maximum of one month. First, the assembly’s Constitutional Commission must analyze the justices’ ruling and report back to legislators within 10 days.

The fast-track initiative will then pass to the Regulation Reform Commission so dissenting motions can be heard. (Their premature dismissal is the reason the Sala IV demanded that the assembly send the reform back to commission.)

If the commission approves the reform again, as expected, the initiative returns once more to the assembly floor, where the 19 opponents can each speak for up to 30 minutes against the reform, according to the daily La Nación, which gave a maximum of 28 days for this entire procedure to be completed.

However, legislator José Merino of the Broad Front party told the daily he might file another consultation about the constitutionality of the fast track before the Sala IV, which could take another month to process.

Guevara, of the Libertarian Movement, said another complication could come into play: one of the four justices who supported the reform’s application to CAFTA is a temporary justice, or juez suplente, who will be replaced by a permanent judge in the coming months. That means that a future consultation on the use of the reform could have a different result, he said.

Tangled Branches

The back-and-forth provided yet another example of the close interplay between Congress and the seven Sala IV justices, whose functions include ensuring legislators follow assembly regulations to the letter.

Analyst Solís said the court’s prominence in political issues has drawn criticism in recent years.

“There’s a process in the country that some people call the ‘judicialization of politics,’ which I find very negative, which is turning every political discussion into a judicial discussion,” Solís told The Tico Times – adding, however, that monitoring legislators’ adherence to regulations does fall within the court’s original purpose.

A 2006 attempt by the previous legislature to “fast-track” an important bill – the doomed Permanent Fiscal Reform Package, which would have overhauled the country’s outdated tax system – met its end when the high court ruled that the application of another fast-track procedure called the 208 bis was “irrational, disproportional and in violation of the democratic principle.”

Then, some legislators said the high court was out of touch with legislative reality (TT, March 24, 2006). One group was elated, however: the Libertarian Movement, which had successfully delayed a vote on the tax plan for nearly four years, the entire legislative term, by filing thousands of motions and appeals.

The fast track was designed to prevent the small minority from preventing a vote on the plan, which had majority support.

Asked why he thinks CAFTA, which is opposed by 19 legislators, can reach a vote in just two months when his own party delayed the tax plan for nearly four years, Guevara pointed out that because the terms of the trade pact have already been agreed upon by the signatory countries – the United States, Guatemala, Honduras, El Salvador, Nicaragua, Costa Rica and the Dominican Republic – the assembly can’t alter the trade pact in any way, just approve or reject it. (The only way for legislators to modify the text would be to ratify the pact, and then propose a change that would have to be approved by all member countries.)

Because of that, assembly president Francisco Pacheco may be well within his rights to limit the discussion of motions.

“Any (motions) that try to change the text must be rejected,” Guevara said.

The Tico Times spoke this week with Sala IV president Luis Fernando Solano. Asked to clarify the reasoning behind the Sala IV’s ruling against the use of one fast-track measure for the tax plan in 2006, but support for the use of another for CAFTA this year, Solano’s response was a long, hearty laugh.

Given the complicated and controversial nature of the issues involved, Solano said, he’d need to review the relevant jurisprudence and have it at hand before venturing an answer.


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