If the sociologist Malcolm Gladwell is correct, everything has a tipping point.
And, after 20 years of relying on the Constitutional Chamber of the Supreme Court (Sala IV) to defend their every constitutional right, Costa Ricans’ opinion of the tribunal has tilted.
A recent CID Gallup poll taken for the business daily, La República, indicates that 68 percent of Ticos believe that limiting the constitutional court’s powers is necessary.
The majority of those consulted think that the court’s seven magistrates have overstepped their boundaries with recent rulings, abusing the authority granted to them by article 10 of the country’s Constitution.
The poll results came three weeks after the Sala IV restricted the National Police from stopping and searching vehicles without probable cause, a ruling that was lambasted by the executive branch and security officials and that received harsh criticism in the media.
The survey also follows an unpopular decision by the court that laid down a 36-month deadline for legislators to reform the Constitution to include an ethics clause for public officials.
In recent months, the high court has ruled against a public referendum for gay civil unions, annulled certain articles of Costa Rica’s pension laws, demanded that builders conduct environmental impact studies and given the Telecommunications Superintendency 90 days to open the nation’s cell phone market to private competitors, among other high profile decisions.
Unstoppable, absolute, and without checks and balances, critics claim.
In response, politicians have rushed to take advantage of the institution’s new downtrodden image.
Two weeks ago, legislators from four of the eight political parties represented in the Legislative Assembly formed a subcommittee to evaluate several proposals that would limit the court’s powers.
The subcommittee includes representatives from the centrist National Liberation and Social Christian Unity Parties, the right-wing Libertarian Movement and the socialist Broad Front Party.
Drafts are in their early stages, but each of the proposals would reform provisions in Costa Rica’s Constitutional Jurisdiction Law, which was passed in 1996. The law itself, however, requires that any changes to the law made by the legislature be approved by the Sala IV.
But has the Sala IV really abused its extensive powers?
Many legal experts defend the court’s recent actions and claim that public dissatisfaction with the high-ranking court is a symptom of a misinformed population and a legislative branch that is playing politics and looking to remove roadblocks to their lawmaking power.
“Some of the recent decisions have received very ample coverage in the media that has highlighted errors of the Sala IV,” said Marvin Carvajal, a professor of constitutional law at the University of Costa Rica. “This coverage has been exaggerated by politicians who benefit from a weak constitutional court, and this has generated a very negative opinion toward the court.”
One of the five pending legislative proposals to limit the power of the court would repeal the Constitutional Jurisdiction Law’s “mandatory consultation” provision, a clause that requires the Legislative Assembly to confer with the Sala IV before passing a law. The article allows the court to decide ahead of time whether a bill complies with the Constitution and with international treaties.
For the Sala IV’s president, Ana Virgina Calzada, eliminating this step could threaten established rights and programs for citizens.
“Eventually, if it occurs to them to remove this obligation, we couldn’t say anything about their bills,” Calzada told The Tico Times. “They could abolish the Social Security System and we couldn’t say anything. They could eliminate the pension system, and we couldn’t say anything. They could get rid of social guarantees that people of this country fought and died for, and we couldn’t say anything.”
The Sala IV was born in 1989 and, with only two exceptions, has received more cases every year when compared to the year prior, growing from 365 cases in 1989 to its record of 18,856 in 2009.
Because filing a complaint or an injunction does not require a lawyer and involves few formal steps, presenting constitutional grievances became popular among citizens.
Supreme Court resolutions carried weight, ordering presidents and ministers to comply with constitutional duties, power that impressed ordinary people.
“It was a new type of justice that people had never had before and it became very attractive,” Carvajal said.
Now, with public opinion suddenly opposing the Sala IV, experts warn that rash decisions based on fleeting public opinion could cause the country to regress more than 20 years. “We have two countries, one before 1989 and another country after 1989, when the Sala IV entered and began to save people’s rights,” Carvajal said. “Reforms to make the court more efficient and quicker are welcome. Reforms to cut their powers are ill-intentioned. What the latter looks to do is return to a very comfortable era that our politicians enjoyed before 1989 when they could do anything without control.”
The new legislative proposals have a long course to run before any changes are made, and any reforms will still be subject to the court’s approval.
Calzada, the Sala IV’s president, told The Tico Times that she respects the legislative process, but said the court will “adjust” any reform to assure that “the Sala IV doesn’t remain silent (in the face of) future reforms that could limit the fundamental rights of the country’s citizens.”
Despite its historic reputation for defending civil liberties, the winds of public opinion have apparently turned on the Sala IV, and politicians have seized the opportunity. But when the winds calm, a few pro-citizen resolutions could easily turn opinion back the other way.
For Carvajal, the high road is always best for the high court.
“It is better to look for a more reasonable, less radical solution than one made in the heat of the moment,” Carvajal said. “For all the ways you can criticize the Sala IV, it is a necessary institution and a fundamental way for citizens to defend their rights. A strong constitutional court is indispensable for this country.”