the referred plebiscite encompassed expansion or not." (folio 1)?.
2.—In the procedure, the prescriptions of law have been observed and no defects capable of invalidating the proceedings are noted.
Drafted by Judge Sobrado González; and,
I.Regarding the legitimacy of the consulting party: Regarding the legitimacy to raise consultations, what was stated in Decision Nº 1197-E-2002 of 11:30 hours on July 5, 2002, is reiterated:
"The Tribunal Supremo de Elecciones is the jurisdictional body constitutionally entrusted with the "exclusive and obligatory" interpretation of the provisions governing electoral matters. Precisely, in application of Article 102 of the Constitución Política de la República, it is recognized in numeral 19, subsection c), of the Código Electoral, that this Tribunal has the function of interpreting, in the manner prescribed by the constituent, the current regulations related to the electoral question. The cited legal provision reads in the following terms: 'Such interpretations may be given of its own motion or at the request of the members of the Comité Ejecutivo Superior of the registered political parties' (the highlighting is not from the original).
This Tribunal has also repeatedly ruled on this particular matter (see: Decision Nº 1748 of 15:30 hours on August 31, 1999 and Nº 1863 of 9:40 hours on September 23, 1999) that:
'It follows from the previous provisions that, in our legislation, only political parties, through their Comité Ejecutivo Superior, are legitimated to provoke an interpretive declaration.
However, the Tribunal Supremo de Elecciones may perceive the requirement to interpret or integrate the electoral legal framework when its provisions are not clear or sufficient, when its literal understanding leads to the misapplication or distortion of its guiding principles or to a contradiction with constitutional mandates, or when the provisions require subsequent practical complementation to take effect. In cases such as these, the Tribunal Supremo de Elecciones may resort to its power of interpretation of its own motion, contemplated in the article of the Código Electoral transcribed above, when the need for greater concretization of the normative meaning of the provisions favors the effective and efficient organization, direction, and oversight of acts relating to the suffrage, which is the function that constitutionally defines this Tribunal (Art. 99 of the Carta Política).'.
In light of the foregoing, the consulting Council does not hold legitimacy to request interpretations from the Tribunal Supremo de Elecciones. However, the following pronouncement of its own motion is given, with the purpose of clarifying the matter relating to the competence of this Tribunal in relation to local consultations.
II.Regarding the constitutional competence of this Tribunal in relation to popular consultations at the local level and the doubt raised: This Tribunal, in Decision Nº 3528-E8-2008 of 13:50 hours on October 8, 2008, ruled on its competence in relation to popular consultations at the local level in the following terms:
". this Electoral Authority does not constitute a second instance or venue for appeal in consultative electoral processes at the local level. Its work, as established by the legislation (Article 13, subsection j of the Código Municipal and the Manual for the Realización de Consultas Populares at the Cantonal and District Level Nº 03-98), is confined to advising on the holding of the electoral event. Thus, it is not its responsibility to define what was decided in the plebiscite held .".
Regarding the interpretive competence of this Electoral Authority, in relation to that class of consultations, the cited decision continued:
"Regarding the interpretive function of this Tribunal, within the general framework of its constitutional competencies, recent Decision Nº 2841-E6-2008 of 11:05 hours on August 25, 2008, specified:
'. this Tribunal, in recent years, has sustained a progressive process of recognizing the competencies attributed to it by the original constituent in 1949 and, in the case of Articles 9 (rank and independence of the State powers) and 102 subsection 9 (competence to organize, direct, and oversee referendum processes), by the Reform Power of the Constitution.
Articles 9 and 99 of the Constitución Política assign to this Tribunal the exclusive and independent competence to organize, direct, and oversee "acts relating to suffrage". It was in Decision nº 004 of January 3, 1996, that this collegiate body constructed, from this constitutional competence, the concept of "electoral matter", as a category that designates the scope of its generic competence, as well as that of its exclusive and obligatory power, to interpret the Constitution and the law (102 subsection 3). The demarcation of that competence is the purview of this Tribunal since the correct understanding of the category "electoral matter" is, by constitutional definition, its exclusive resort.
Within that framework, an important development in case law doctrine has been verified, tending towards a broader understanding of the electoral (the case law evolution has progressed from Decision nº 907 of August 18, 1997, which included the internal conflicts of political parties in the area denominated "electoral matter", up to Decision nº 3384-E-2006 of October 24, 2006, which declared the electoral nature of the mechanisms of direct democracy). As can be seen, despite the progressive imprint that marks the understanding of its functions, this Tribunal has been consistent in maintaining them, especially regarding its interpretive faculty, within the margins of the fundamental rights of a political nature that derive from the Constitution and the various international treaties in force in the country.".
Insofar as Article 2 of the Ley General de Concejos Municipales de Distrito, in its second paragraph, includes the holding of a popular consultation for the purpose of approving or disapproving the creation of one of these political-representative bodies in a determined district of the country, the necessary interpretation of that provision falls to this Tribunal.
According to the theory of the normative system, it is composed of normative bodies and juridical norms. These, in turn, contain provisions. In light of this, it is possible, as occurs in this case, that a normative body and even a juridical norm, whose nature is not electoral, contains electoral provisions that, as already stated, must be interpreted by this Electoral Authority.
In effect, neither the Ley General de Concejos Municipales de Distrito nor the entirety of Article 2 thereof are of an electoral nature. However, its second paragraph provides for the holding of a popular consultation in which, in the exercise of fundamental political rights, the citizens of the respective canton may vote for or against the creation of a distrito municipal council (concejo municipal de distrito). This is the reason why it is the exclusive and obligatory duty of this Tribunal to clarify the obscurity of the norm on that specific point, as is in effect done in the following considering.
.
This mechanism qualifies, evidently, as a consultative electoral procedure at the local level. The same logic according to which elective electoral processes at the cantonal level have been considered, in analogy with national ones, electoral matter, requires that, in this case (following the jurisprudential understanding of national consultative processes as electoral matter), this institute of direct democracy at the local level be classified as electoral matter.
The foregoing does not imply, as already noted, that this Tribunal will assume direction or decisional power over the results of this type of processes. The principle of legality —inherent to any Rule of Law— which prevents it from exercising public powers not assigned to it and which, in any case, are alien to it, prevents it. The electoral nature indicated therefore permits, only, the interpretive exercise (ejercicio hermenéutico) that, regarding this matter, the constituent entrusted to this Tribunal.
.
It is fitting to record that, without prejudice to the fact that the Tribunal lacks administrative powers regarding those consultative votes, it could intervene in its capacity as electoral judge and in the protection of the political rights of citizens by way of the recurso de amparo electoral, when the violation or threat thereof is alleged.".
In accordance with the cited precedent, it does not fall to this Tribunal to interpret the specific legal scopes of the decision adopted in the popular consultation in question, which is why it refrains from ruling on this matter.
While it is true, in the recent Decision nº 3897-E8-2008 of 13:50 hours on November 5, 2008, this Tribunal clarified aspects relating to the binding nature of the result of a cantonal plebiscite, it did so in general terms, that is, regarding the obligatory nature and resistance of what was agreed through these instruments and not regarding the concrete interpretation of what was decided at the ballots, as occurs in the present case. Therefore:
The determination of the scopes of what was approved in the plebiscite of February 16, 2003, in the Piedades Sur District, San Ramón Canton, is outside the competence that this Tribunal holds in relation to local consultations, which is why it refrains from ruling on this matter. Notify. Communicate in the terms indicated in Article 19 of the Código Electoral.