by Lucía Astorga

The decision on the referendum could be reversed, President Rodrigo Chaves stated in his annual speech.

The President of the Republic, Rodrigo Chaves Robles, warned on Thursday about the possibility of promoting a referendum on various bills, including the sale of the Banco de Costa Rica (BCR) and the 4-3 work schedule plan (four days of 12-hour work, three days off). However, he said that the decision could be reversed if the deputies commit to his agenda.

He stated this during his second annual report before the Legislative Assembly. Initially, he affirmed that the decision to promote the popular vote was made. Later, he indicated that “only rivers and fools do not turn back” and that the process could be reversed “if you (deputies) are willing to commit, in a credible manner, to a national legislative agenda and no more partisan.”

According to the president, in the coming “days or weeks,” he would present the exact route of the referendum, in case the discussions with the new Legislative Directorate do not progress as he hopes.
Chaves was not precise regarding the initiatives that would be subject to the citizens’ consultation. While he mentioned a total of nine, already presented in the Legislative Assembly, he left open the possibility that these may not be included or that others may be added.

The projects he cited are as follows:

The sale of the Banco de Costa Rica.

Flexibility of work schedules, also known as the 4/3 work schedules. This consists of employees working four days a week and having three days off if their schedule is diurnal. Meanwhile, they work three days and have four days off if they have a nocturnal schedule, according to the bill.
Harmonization of the electricity market.
Elimination of decentralized bodies of the Ministry of Public Works and Transportation (Mopt), as well as the reform of the decentralized bodies of the Ministry of Environment and Energy (Minae) and the Ministry of Agriculture and Livestock (MAG).
Amendment to the Public Procurement Law so that the government can contract with the Central American Bank for Economic Integration (BCIE) for the development of Ciudad Gobierno, a $450 million plan, without the need for a public tender.
An “interpretation” for the Atlantic Slope Port Administration and Economic Development Board (Japdeva) to proceed with the public-private partnership to build a cruise terminal and marina in Limón. The Comptroller General of the Republic clarified that it has never prevented this plan, it only issued a “reminder” to comply with the law.
Elimination of minimum fees from professional associations.
Referendum must go through filters

While Chaves said he would use the popular vote to accelerate his project agenda, the Referendum Regulation Law establishes filters and deadlines that must be met beforehand.

First, it must be determined that the proposed issues do not fall into any of the subjects that cannot be subjected to a referendum: budgetary, tax, fiscal, monetary, credit, pension, security, loan approval, and contractual matters, nor acts of an administrative nature.

Likewise, the Supreme Electoral Tribunal (TSE) has the authority to consult on the constitutionality of the texts to the Constitutional Chamber, prior to the referendum call.

In the case of the amendment to the Public Procurement Law that Chaves is promoting to assign Ciudad Gobierno to BCIE without a tender, the Comptroller General of the Republic (CGR) has warned that the text could be unconstitutional because it would allow for awarding public works contracts without adhering to the existing legal and constitutional controls.

The CGR also warned that the project would open the door to granting third parties the right to use public assets without a time limit, violating principles of proportionality and reasonableness.

Regarding the marina and cruise terminal of Japdeva, what the Comptroller has said is that if the project is to be developed through a public-private partnership, the provisions of the law must be followed.

This implies respecting the principles of public tender, without falling into irregular contractor selection.

Sale of BCR would require a higher percentage

The binding nature of the referendum depends on the percentage of participation achieved in the consultation.

For those issues considered as ordinary legislation, which in Congress are approved with only 29 out of 57 votes, a 30% turnout of the electoral roll will be required.

But if it concerns matters that require a qualified majority of deputies, 38 out of 57 votes, a 40% turnout will be required. In the case of the sale of BCR, the Technical Services Department of Congress indicated, with respect to the previous text, that a qualified majority would be necessary to approve the bill.

The regulations also establish that only one referendum can be held per year; however, the TSE is authorized to combine different consultations in a single electoral act.

Regarding the limits for holding the referendum, the law establishes that consultations cannot be conducted six months before or after the presidential election. In resolution 3006-E9-2013, dated June 25, 2023, the TSE clarified that this provision includes that a referendum cannot be held within six months prior to presidential elections.

The call would have to be made before May 2025, to avoid clashing with the February 2026 elections. The prohibition of six months must be added to another three months, which is the period given to hold the vote once the call is official.

The opinion of the judges was issued in relation to a referendum proposal promoted by former deputy Walter Muñoz, to amend the Constitutive Law of the Costa Rican Social Security Fund (CCSS).

In that regard, the electoral judges pointed out that considering the six-month limit and that the country would hold elections on February 2, 2014, the last day to hold the referendum on the bill was August 1, 2013.

Status of some initiatives

In the case of the sale of BCR and the 4/3 work schedules, the texts currently under discussion were presented recently, after previous versions did not prosper.

In the plenary of Congress, the proposal for harmonization of the electricity market is already pending, which aims to open up this activity in the country, currently managed by the Costa Rican Electricity Institute (ICE).

Likewise, the reforms of Mopt, Minae, and MAG are waiting in line in the plenary.

Chaves argued that deputies have obstructed the Executive’s proposals immensely. He cited the Minae project as an example.

The government argues that the plan would improve Minae’s governance by granting more powers to the minister, but the National Liberation Party (PLN) and the Broad Front (FA), as well as environmental groups, consider that it would instead trigger a setback in environmental matters. Therefore, deputies from these parties decided to block the initiative with more than 400 motions.

The plan would eliminate the legal figure of maximum decentralization currently held by the National Technical Secretariat for the Environment (Setena), the National System of Conservation Areas (Sinac), and the National Commission for Biodiversity Management (Conagebio).

With this change, for example, Setena would retain the authority to issue and revoke resolutions, but developers of construction projects will be able to appeal to the minister, who will exhaust the administrative route.

Uncertain path ahead

Chaves said that out of the three alternatives to initiate a popular consultation, he could use two. He indicated that he could promote the process through citizen initiative, for which the signatures of 5% of the total electoral roll are required: around 178,540 people.

The other option he mentioned is the one that allows the Executive Branch to convene the referendum, but with the support of an absolute majority of all members of the Legislative Assembly. This means that it requires the affirmative vote of 29 legislators.

He ruled out the possibility of the call being made by the deputies, for which the approval of two-thirds of Congress is required, which is equal to 38 votes.

The collection of citizen signatures must be carried out rigorously. For example, the TSE must designate the places where the signatures should be collected and must accredit the persons responsible for safeguarding the forms.

Likewise, the signatures are subsequently subjected to scrutiny, for which the TSE has up to 30 business days to carry out the process. If some signatures are not verifiable, the electoral body will grant a period of 15 business days to provide them again or replace them.

If after this stage it is determined that it is not possible to verify the authenticity of 15% of the total necessary signatures, the initiative is declared invalid.

Costa Rica held its first referendum on October 7, 2007, when the government of Óscar Arias submitted to popular vote whether to accept or reject the Free Trade Agreement (FTA) with the United States. It was approved with 51.6% of the votes. The current legislative president, Rodrigo Arias, was then serving as Minister of the Presidency.

Executive prohibited from financing campaigns

If Chaves’ proposal to convene a referendum succeeds, the Executive Branch is legally prohibited from financing campaigns in favor of or against the projects submitted to consultation. This limitation covers autonomous entities, semi-autonomous entities, state-owned companies, and other public bodies.

It is also not possible to use money from abroad donated by private or public entities.

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