What has been hailed as the democratic solution to Costa Rica’s most polarizing question may risk becoming a bureaucratic nightmare, or at least a confusing test of the balance of powers.
Recent developments surrounding the upcoming national referendum on the Central American Free-Trade Agreement with the United States (CAFTA) can only be fully understood by a true connoisseur of legislative trámites and regulations. In a nutshell, however, the scenario is this: the country is preparing for its first referendum in modern history, on one of the most controversial issues it’s ever faced, without clear guidelines in potentially crucial areas.
“It could be very nasty, because if the rules are not clear… when push comes to shove, all those elements put together may de-legitimize the whole process,” political analyst Luis Guillermo Solís told The Tico Times of this week’s developments.
The Supreme Elections Tribunal (TSE) this week announced that it is postponing the referendum from Sept. 23 to Oct. 7 as a high court examines whether the assembly violated its procedures in its previous handling of the pact, as well as legislation calling for the public vote.
What does this mean for the referendum – the first in modern Costa Rican history? Depending on the resolution from the Constitutional Chamber of the Supreme Court (Sala IV), could the agreement be discarded altogether? Could the errors be fixed and the referendum continue? Would CAFTA return to discussion in the Legislative Assembly?
It’s not quite clear.
“We’ll have to see exactly what the Sala IV declares,” TSE interim president Luis Antonio Sobrado said Tuesday, explaining that once the court’s decision is known in early July, the Tribunal will officially convene the referendum for three months away as the law dictates, “as long as the chamber doesn’t find procedural flaws.”
“It’s an unexpected circumstance… one that couldn’t have been evaluated in advance,” he added.
The cause of that circumstance: a request for a constitutional consultation filed by a group of legislators from the Citizen Action Party (PAC), which leads the fight against the trade pact, and other factions. The Sala IV announced June 1 that it would accept the legislators’ request, combining it with a previous request for constitutional review of CAFTA from Ombudswoman Lisbeth Quesada.
The court is expected to respond to both consultations by July 5, according to Sala IV spokeswoman Sonia Villegas.
Depending on the seven Sala IV justices’ opinions, three scenarios could result.
If they find no constitutional problems with CAFTA, the referendum and the procedures applied to each, then the October vote can continue as planned.
The other two possibilities are fraught with uncertainty. If justices find procedural errors with CAFTA, the Tribunal would have to call off the referendum, at least temporarily, Sobrado said.
The legislators’ case against the pact, unlike Quesada’s earlier consult, alleges procedural errors by the Legislative Assembly in handling referendum-related legislation – and Sala IV pronouncements on procedure are binding. Depending on the nature of the errors, the pact or referendum legislation could return to the Legislative Assembly for correction.
If, in a final scenario, the justices find constitutional problems with CAFTA’s content – for example, if they rule that it infringes upon Costa Rican sovereignty or human rights outlined in the Constitution – that ruling, by law, would not be binding, and the future would be highly uncertain.
Sobrado has said a referendum could continue despite such a ruling, but CAFTA opponents balk at the idea of a national vote on legislation that’s been deemed unconstitutional.
“If they find errors in the content, we think it shouldn’t go to a referendum,” Rafael Madrigal, interim PAC faction head, told The Tico Times, pointing out that the Legislative Assembly is not authorized to make any changes to the text of the treaty and therefore could not fix any constitutional conflicts. “To fix it, we’d have to begin a new negotiation.”
Alexander Miranda, president of the Association of Political Science and International Relations Professionals, said that such a decision would “have to be a joint decision by the different powers.”
While these complications certainly throw a kink into preparations, they haven’t kept activists from hitting the campaign trail.
On Monday, flanked by students, executives, political leaders and other CAFTA supporters, former Production Minister Alfredo Volio launched the “Alianza Ciudadana Por el Sí” (“Yes on CAFTA Citizens’ Alliance”).
The organization will spearhead campaign efforts in favor of the controversial pact. Volio, who resigned from his Cabinet position in April to head the alliance, said the group represents the broadest coalition in Costa Rican history. (Its equivalent on the anti-CAFTA side: the National Front against CAFTA, headed by Costa Rican Technological Institute rector Eugenio Trejos.)
Former electoral rivals said they’re setting partisan politics aside for the cause. “We’re taking off our Libertarian Movement shirts, and putting on our ‘Yes (to CAFTA)’ shirts,” said former Libertarian presidential candidate Otto Guevara, a member of the Alliance’s National Council. (In addition to the proverbial shirts, many council members also sported the latest must-have CAFTA accessory: white rubber bracelets proclaiming “Yo sí quiero,” or “Yes, I want it.”)
Asked to reveal details on the planned campaign and its financing,Volio was vague, refusing to estimate the cost of the effort.
“The idea is open participation,” he said, mentioning possible debates, home visits and forums on CAFTA. “We’ll have many varied activities.”
The National Council, most of whose members attended the press conference at Pueblo Antiguo in the National Amusement Park, in western San José, comprises many of the usual pro-CAFTA suspects – the heads of business chambers and the legislative leaders from parties favoring the agreement, for example – and also a few unusual faces, such as student leaders from the overwhelmingly anti-CAFTA public universities.
One such leader,University of Costa Rica (UCR) political science major Alfonso Rojas, said that supporting the trade agreement on campus is “a martyrdom.” He’s often the target of anti-CAFTA classmates and professors, has watched fellow students tear down his posters or signs favoring the agreement, and was recently questioned by a campus guard when he tried to pass out pro-CAFTA fliers. (Campus authorities, contacted by the guard at Rojas’ suggestion, quickly asserted the student’s right to distribute materials, he said.)
Last week, a group of UCR students asked the school’s University Council, which has voted to officially oppose CAFTA, to take an impartial stand on the issue, according to the daily La Nación.
The TSE has upheld public employees’ right to campaign as long as no public funds are used, a provision the government has taken full advantage of through presidential and ministerial speeches and a new “Day After CAFTA” campaign by the Economy Ministry spelling out the alleged negative effects on Costa Rica’s farmers should CAFTA be voted down.
On the anti-CAFTA front, organizers announced via e-mail a series of rallies around the country in coming weeks.
For example, in San Juan de Tibás, north of San José, interested citizens are invited to wave banners and distribute fliers each day “during rush hour in the morning and in the afternoon” in the park; and in Sabanilla, northeast of San José, the community’s “Patriotic Committee,” as anti-CAFTA community groups have been dubbed, plans to meet every Wednesday at 7 p.m. at the José Figueres Ferrer School.
