Judge scandal tests Tico democracy

Outside of legal circles, the name Fernando Cruz likely didn’t ring a bell to most Costa Ricans until late last week. But the 63-year-old Supreme Court justice has found himself at the center of one of Costa Rica’s biggest political crises in recent memory.

On Nov. 15, 38 lawmakers from various political parties voted to deny Cruz’s re-election to the Constitutional Chamber of the Supreme Court, or Sala IV, where he had served independently since 2004. According to the Costa Rican Constitution, Sala IV justices are elected to eight-year terms, and then automatically re-elected unless lawmakers vote by a two-thirds majority to remove them when their terms expire.

This is what happened to Cruz, who became the first Sala IV justice to be blocked from serving a second term. The political backlash that resulted is showing serious cracks in the country’s democratic system, with members of the judicial branch rallying to defend Cruz and accusing members of the legislative and executive branches of upsetting the country’s democratic balance of power.

“The Legislative Assembly has taken a swipe at the Supreme Court,” said former Costa Rican President Luis Alberto Monge, who was outraged at the lawmakers’ vote. Monge, who served from 1982-1986, is one of Costa Rica’s heaviest political hitters, helping found the ruling National Liberation Party (PLN), which unanimously voted against Cruz. Monge also is the only living signatory of Costa Rica’s Constitution of 1949. 

Supreme Court President Luis Paulino Mora on Monday delivered an impassioned speech in defense of Cruz to a room filled with judges, prosecutors, lawyers and other employees of the judicial branch, all dressed in funeral black. Mora called Cruz “an independent, honest and respected judge recognized as one of the best jurists in the country.”

“This is a clear threat to the independence of the judicial branch and against democracy itself,” Mora said. “It’s an excuse to find complacency in thought and action, in which the majority can do anything, especially to silence dissidence; in other words, to silence rich democratic diversity in the name of a badly understood or manipulated governance.” 

So why was Cruz removed? Lawmakers who voted in favor of blocking the justice’s re-election belong to several political parties, including Liberation, the Social Christian Unity Party (PUSC), the Libertarian Movement Party and Costa Rica’s two evangelical political parties. They deny a political conspiracy to remove the justice – which some supporters of Cruz allege was organized by President Laura Chinchilla’s administration, a charge the administration denies – each offering their own reasons for the vote, and some of them citing the public will for change at the Sala IV, which wields enormous judicial power over the country’s laws. 

 PLN lawmaker Siany Villalobos, who voted to block Cruz’s re-election, said she hoped to improve the Sala IV. She cited a recent poll concluding that seven of 10 Costa Ricans are unsatisfied with the court’s performance. According to Villalobos, the decision to “send a message” to the Sala IV coincided with the end of Cruz’s eight-year term.

Libertarian Movement lawmaker Danilo Cubero said his vote against Cruz was not based on personal criteria, nor was it a plot, but rather, “our party simply did not support his re-election. We thought that eight years was enough.”

PUSC lawmaker Walter Céspedes said, “I didn’t vote against a specific person; I voted to give a slap on the wrist to the judicial system, as a protest against the system.” 

Left-Leaning, independent jurist

On the other side of the issue, Cruz’s supporters say lawmakers had plenty to gain from removing a thorn in their side. 

Cruz received a law degree from the University of Costa Rica, and a doctorate in law from the Universidad Complutense in Madrid, Spain. He began his extensive judicial career in 1972 as a minor crimes investigator, working his way up the ladder to chief public prosecutor, and ultimately, Sala IV justice, in 2004. 

According to José Manuel Arroyo, president of the Penal Branch of the Supreme Court, Cruz could rule on politically sensitive cases such as one involving a mining concession granted to Industrias Infinitos to develop the Crucitas gold mine in Cutris de San Carlos, in northern Costa Rica.

“We [Sala IV justices] have been trying for a year to rule on the constitutionality issue involving the Crucitas case, and it strikes me that we haven’t been able to do that,” Cruz told the daily La Nación. “In the middle of this is my re-election and I can’t render my decision on the issue. That stands out to me; this has been going on for a year and now I won’t be able to rule.”

Another case involves PLN presidential candidate Rodrigo Arias – brother of former two-term President Oscar Arias – and the management of funds from the Central American Bank of Economic Integration. Rodrigo Arias was cleared of any criminal wrongdoing in the case, but the Sala IV likely will rule on appeals in the case.

Then there’s Cruz’s past record. According to the daily La Nación, the justice held a dissenting position in the highly divisive case of the U.S.-Central America Free Trade Agreement, which narrowly passed a public referendum in 2007.

Cruz also ruled against the constitutionality of a fiscal reform plan, the failed centerpiece of the Chinchilla administration. He ruled against a lawsuit requesting an injunction by ex-President Rafael Ángel Calderón Fournier (1990-1994), who sought to be conditionally released from jail during a corruption trial.

Cruz, said Arroyo, “is a person with a very big social conscience, and he has ruled on a number of issues that libertarians don’t agree with.” 

“If what [lawmakers] want to do is fix what is wrong with the Sala IV, the democratic method for those who have the power to do so is to reform the constitution or the law that governs [the Sala IV], not make a  scapegoat out of someone who has angered political sectors with his decisions,” Arroyo said.

Said Juan Carlos Mendoza, legislative leader of the Citizen Action Party: “What the PLN and its allies have done is deepen the [country’s] institutional crisis, and above all, continue discrediting the Legislative Assembly.” 

Hitting a snag

The political row over justice Cruz was so significant that Luis Fishman, who until this week served as legislative head of PUSC, quit his party in the Legislative Assembly (although he remains a member of the party outside the assembly). Fishman battled with fellow PUSC lawmakers who voted to prevent Cruz’s re-election. 

Not only did Fishman renounce his party in the assembly, he also fought to reinstate Cruz to a second term, filing a constitutional challenge to the same court where Cruz had been removed. Fishman’s Sala IV challenge – along with 10 other appeals – noted that lawmakers’ vote last week was unconstitutional, as the term to remove Cruz had expired in October. 

Article 158 of Costa Rica’s Constitution states that “Supreme Court judges shall be elected for eight years and will be considered re-elected for an equal term unless a vote of no less than two-thirds of the total members of the Legislative Assembly [38] agree otherwise.” 

Cruz’s eight-year term expired on Oct. 18, and the vote took place on Nov. 15. According to Fishman, Cruz should have been automatically re-elected in October. On Tuesday, assembly President Víctor Emilio Granados, of the Access Without Exclusion Party, agreed with Fishman’s analysis, annulling last week’s vote and ordering Cruz to be sworn in on Thursday.

That never happened, as lawmakers fought back with an immediate 26-19 vote to override Granados’ annulment and ratify the Nov. 15 vote. The matter now goes to the same court whose members back Cruz – the Sala IV. A final ruling could take as long as 14 months, Cruz told Channel 7’s Telenoticias. Meanwhile, the court has ordered the legislative vote from last week to be suspended, pending a ruling.

“Whatever the Sala IV’s ruling, … lawmakers and the country will have to accept it,” said lawmaker Fabio Molina, head of the PLN’s legislative bloc. 

Meanwhile, Chinchilla, who returned on Tuesday from an official visit to Spain and is already facing the lowest voter approval rating in the Americas, promised to meet with the presidents of the assembly and the Supreme Court in an attempt to ease the crisis.

On Wednesday night, members of the judicial branch organized a candlelight vigil in the Plaza de la Justicia outside the court complex in downtown San José. Several prominent Costa Rican musicians performed in support of “Costa Rica’s tradition of democracy” and a separation of powers.

Cruz, stoic, calm and unassuming throughout the week, maintained his faith in the judicial process and in the country’s democratic institutions, telling La Nación, “I’m taking all this with a sense of objectivity and serenity. These are the rules of the game, although, of course as always, politics go beyond the rules of the judicial game, and political acts require legitimacy. But the final word on that legitimacy is up to the press and public opinion.”

Tico Times online editor L. Arias contributed to this story.