The fate of the Central American Free-Trade Agreement with the United States (CAFTA) now depends not only on how people vote in a nationwide referendum Sept. 23, but also on a verdict that’s closer at hand: the decision of high-court judges now evaluating whether the pact violates Costa Rica’s Constitution.
After weeks of speculation about whether the Constitutional Chamber of the Supreme Court (Sala IV) should evaluate CAFTA before a public vote, the chamber’s justices announced May 11 that they’d take on the challenge and present their opinion within a month. Ombudswoman Lisbeth Quesada, who two weeks ago requested that the high court review the trade pact’s possible effects on human rights, succeeded where others who’ve asked for a Sala IV review of the controversial agreement, including the Supreme Elections Tribunal (TSE), have failed.
The high court justices indicated they would have one month to reach a decision as soon as the Ombudsman’s Office, as the institution that requested the evaluation, submitted a copy of the more than 2,000-page agreement to the Sala IV. Ombudsman’s Office spokesman Ahmed Tabash told The Tico Times this took place Wednesday morning, meaning that the chamber will likely release its decision by June 15.
The seven justices’ decision, particularly if they find violations within the agreement, could certainly have drastic consequences, although it’s not yet clear what those consequences might be. Luis Antonio Sobrado, interim president of the Elections Tribunal, told The Tico Times this week that he prefers not to speculate about what will happen after the Sala IV’s decision.
However, he suggested that a ruling against CAFTA could affect whether the referendum proceeds.
“It depends on how the Sala resolves (the consultation),” he said. “For the moment, we’re continuing to organize the referendum.”
When pressed to define whether a public vote could be held despite a negative highcourt ruling, Sobrado said again that he prefers to wait for the decision.
Part of the confusion is that the consultation is just that, and not a binding ruling.
Sala IV opinions on legislation that has not yet reached a vote is binding only if the justices find procedural errors in the way the bill has been handled, not on content.
According to legislator Rafael Madrigal, the country could be heading into murky waters involving a never-before-seen conflict of powers.
“There’s a – well, I’m not sure whether to call it a legal void, but it’s a very new (situation),” he said of the Supreme Court-Elections Tribunal pairing. “If there’s a problem, if the Sala IV says the trade agreement is unconstitutional, I don’t think the TSE can contradict what they say.”
According to Madrigal, the interim faction head of the anti-CAFTA Citizen Action Party (PAC), it may not be clear whether the Tribunal’s three magistrates could move forward with the referendum if the Sala IV rules against CAFTA – but it’s very clear that they shouldn’t.
“It won’t be binding, but if the Sala finds constitutional violations, the logical thing would be for the Executive Branch to move forward to renegotiate,” he said. “It makes no sense to go to a referendum if the Sala tells us it’s unconstitutional.”
Ombudswoman Lisbeth Quesada, who has spoken out against CAFTA in the past and on April 27 requested that the Sala IV review CAFTA, echoed this argument when she presented her request.
“There are 1.5 billion reasons why the Sala IV should admit to and make a pronouncement about the extremes of what is suggested” in the U.S. trade agreement, Quesada said, referring to the estimated ¢1.5 billion (approximately $2.9 million) cost of holding a referendum. She listed workers’ rights, health benefits, intellectual property and the protection of minority groups as areas her office sees as problematic or not included in the trade pact (TT, May 4).
Madrigal, a lawyer, clarified that a “yes” vote on CAFTA in September would not negate or overrule any constitutional problems with the agreement. To change the Constitution, a Constitutional Assembly must be convened, which also requires a nationwide election but is an entirely different process in which voters choose representatives to revise the document.
While no one knows what’s going on behind the Constitutional Chamber’s closed doors, a lively debate about the trade pact’s constitutional contradictions – or lack thereof – has taken place in recent weeks, particularly between a group of legal experts from the University of Costa Rica (UCR), whose board of directors has officially proclaimed their opposition to the agreement, and CAFTA proponents such as the Foreign Trade Ministry (COMEX). UCR’s Special Commission on Constitutional Aspects of CAFTA released a report last month detailing what its members claim are violations of the Constitution.
The 56-page university report details a laundry list of alleged violations, to which COMEX provided a partial rebuttal in the days that followed. The bulk of the debate centers on whether CAFTA would infringe upon Costa Rica’s sovereignty.
One of the primary points of dispute is whether international arbitration and supervisory agencies CAFTA creates would infringe upon constitutional powers of the Costa Rican state. Chapter 10 of the agreement allows investors to take Costa Rica to an international arbitration court to settle differences, which the UCR group says is an unconstitutional transfer of power and discriminates against national investors, who have no such option. The Trade Ministry maintains that this is a common arrangement in free-trade agreements, including five of Costa Rica’s existing FTAs with other countries.
Another conflict: how CAFTA would affect workers’ rights. The UCR report claims that the wording of the agreement’s Chapter 16 includes only specific labor legislation and excludes Costa Rica’s wide range of constitutional social guarantees, leaving workers unprotected. The Trade Ministry response says this is a misinterpretation and that the agreement “does not attempt to substitute national legislation on this topic, so that any right of Costa Rican workers is maintained, as is the possibility of improving those rights.”
The list of disputes of this nature on the Sala IV’s plate may grow. Though Quesada’s request, now under consideration, focuses on human-rights issues, Madrigal said that he and his fellow PAC legislators are still working on a separate request for a Sala IV review of CAFTA, including questions about some of the same issues Quesada and the Ombudsman’s Office included, as well as others.