Constitutional court seems to stray into legislating in key opinions

Some expats are surprised that the constitutional court could find the corporate tax law unconstitutional yet still encourage collection through the end of this year.

This is just another example of the magistrates in the Corte Suprema de Justicia legislating. The court also found that a constitutional prohibition against appointing clergy as government ministers does not include individuals who are not Catholic.

Expats need to remember that magistrates are political appointees. When the court was deciding the fate of Melvin Jiménez, the minister of the Presidencia, the central government was considering the national budget, which includes money for the judiciary.

Judicial activism goes back much further than that. Óscar Arias Sánchez received the right for a second term, thanks to a favorable judicial opinion. The 2003 ruling by the Sala IV was the second attempt to overturn the 1969 constitutional prohibition. Basically the court found the constitution to be unconstitutional in much the same way it did to allow Jiménez, a Lutheran bishop, to keep his government job.

But the court went further in the Arias case. Out of thin air it ruled that presidents must wait four years before seeking re-election.

The activism continues with the decision that the annual tax on mercantile companies is not constitutional. The legislature, the court found, failed to publish significant changes to the measure before it was passed.

That is an allegation that can be checked easily, a slam-dunk in other words. There was no reason for the Sala IV magistrates to wait nearly a year before announcing the decision. Suspicious minds might think that the magistrates did so in order to give the government a slug of money even if the law was unconstitutional.

The decision said operators of corporations must pay the tax, nearly $400 for active corporations, for 2015. And there was no suggestion that the government should give back the money collected with an unconstitutional tax.

Some lawyers were quick to challenge that position in another appeal.

The finance ministry noted that 95 percent of the money collected from the tax goes to the security ministry to improve law enforcement, as if that justified an unconstitutional tax.

Expats might find refreshing a constitutional court that decides legal issues based on jurisprudence instead of the political winds.

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