“As already resolved by the Chamber in vote 536-91 of the 16:00 hrs of today, referring to the scope of article 81 of the Law of the Constitutional Jurisdiction, .”.. the publication that said article orders regarding the filing of the action of unconstitutionality (acción de inconstitucionalidad), suspends only the acts of application of the challenged rule by the judicial authorities in the processes, or by the administrative authorities in the proceedings aimed at exhausting the administrative channel, but not its validity and application in general, whether to the benefit or prejudice of the individual as proceeds .” As a consequence of the foregoing, persons who, invoking article 75, second paragraph of that Law, come to file the action of unconstitutionality directly, by definition lack a judicial process or administrative procedure in which the application of the rule can be suspended.
\n\nIn accordance with this precedent, in the *sub iudice*, the plaintiffs lack prior processes or proceedings on the basis of which it would be appropriate to suspend the application of the challenged norms.\n\n**V.- Purpose of the action.** The plaintiffs allege unconstitutionality by omission with respect to Article 85 of the Political Constitution and because the FEES was not exempted from the application of Articles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. 9635 of December 3, 2018, called ‘Ley de Fortalecimiento de las Finanzas Públicas’, insofar as it has a constitutional origin and is subject to a determination regime in the Constitution itself, which ordinary law can neither abolish nor repeal. They also claim unconstitutionality by omission with reference to Articles 84 and 85 of our Magna Carta, because the state universities were not excluded from compliance with Articles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. 9635, despite the fact that they enjoy full legal capacity to acquire rights and contract obligations, as well as to establish their own organization and government, which empowers them to do the following: 1) definition and approval of the Plan Nacional de Desarrollo para la Educación Superior Universitaria Estatal with a five-year term; 2) formulation and approval of their institutional budgets to implement that plan without intervention from the Executive Branch or its government offices. In addition to the foregoing, they request: “*To dimension the effects of the judgment that upholds this action, warning the Executive Branch, through the Ministerio de Hacienda, the Autoridad Presupuestaria, and the Contraloría General de la República, to consider the FEES and the state universities as exempted from compliance with the*\n\n...the fiscal rule (regla fiscal) provided in Title IV of Law No. 9635 to the formulation, approval, liquidation, evaluation, and monitoring of university budgets. (...) To order both the Ministry of Finance, the Budgetary Authority, and the Comptroller General of the Republic to refrain from actions or omissions that directly or indirectly apply the fiscal rule to the university budgets and treasury, nor to the constitutionally corresponding annual amount of the FEES.\"\n\n**VI.- Regarding the challenged regulations.** The unconstitutionalities by omission are stated in relation to ordinals 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. 9635 of December 3, 2018, called 'Law for the Strengthening of Public Finances'.\n\nThese were in force at the time the action was filed (interposición de la acción); they are transcribed below:\n\n“ARTICLE 5- Scope of application. The fiscal rule (regla fiscal) shall be applicable to the budgets of the entities (entes) and bodies (órganos) of the Non-Financial Public Sector (Sector Público no Financiero).\n\nARTICLE 6- Exceptions. The following institutions are exempt from the coverage scope of this title:\n\na) The Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) (CCSS), solely with regard to the resources of the disability, old age, and death (invalidez, vejez y muerte) regime (IVM) and the non-contributory regime (régimen no contributivo) administered by that institution.\n\nb) Any public enterprise (empresa pública) that participates directly in any activity open to the competition regime (régimen de competencia), but only in relation to that activity. This rule shall cease to apply when the enterprise requests a financial bailout (rescate financiero) from the Executive Branch (Poder Ejecutivo) or when its debt-to-assets coefficient exceeds fifty percent (50%).\n\nc) The Costa Rican Petroleum Refinery (Refinadora Costarricense de Petróleo) (Recope), solely with regard to the petroleum invoice (factura petrolera).\n\n(…)\n\nARTICLE 11- Debt ranges that must be considered to determine the growth of current expenditure (gasto corriente).\n\nThe current expenditure (gasto corriente) of the budgets of the entities (entes) and bodies (órganos) of the Public Sector (Sector Públic\n\nThe Non-Financial Public Sector will grow according to the following parameters of Central Government debt:\n\na) When the debt at the close of the budget year prior to the year of application of the fiscal rule does not exceed thirty percent (30%) of GDP, or the current expenditure-to-GDP ratio of the Central Government is seventeen percent (17%), the year-over-year growth of current expenditure shall not exceed the average nominal GDP growth.\n\nb) When the debt at the close of the budget year prior to the year of application of the fiscal rule is equal to or greater than thirty percent (30%) of GDP, but less than forty-five percent (45%) of GDP, the year-over-year growth of current expenditure shall not exceed eighty-five percent (85%) of the average nominal GDP growth.\n\nc) When the debt at the close of the budget year prior to the year of application of the fiscal rule is equal to or greater than forty-five percent (45%) of GDP, but less than sixty percent (60%) of GDP, the year-over-year growth of current expenditure shall not exceed seventy-five percent (75%)\n\nnominal.\n\nd) When the debt at the close of the budget year prior to the year of application of the fiscal rule is equal to or greater than sixty percent (60%) of GDP, the year-over-year growth of total expenditure shall not exceed sixty-five percent (65%) of the average growth of nominal GDP.\n\n(…)\n\nARTICLE 14. Publication of the fiscal rule scenario. The Ministerio de Hacienda shall communicate the growth rate of current expenditure resulting from the calculation of the fiscal rule, using official debt and average GDP figures. This rate shall be communicated jointly with the budget directives and shall be applied in the formulation of the budget for the following year. In the event that the Ministerio de Hacienda does not communicate the growth rate of current expenditure, it shall be assumed that the applicable rate for the budget year shall be the rule of the current scenario.\n\n(…)\n\nARTICLE 17- Destination of free surpluses generated by the application of the rule. In the event that public entities with liabilities generate a free surplus at the end of the budget year, this shall be allocated to amortizing their own debt. In the case of the surplus\n\nfree surplus (superávit libre) generated by entities that receive transfers from the national budget as a consequence of the application of the fiscal rule, such surplus (superávit) must be returned to the national budget in the year following that in which said surplus (superávit) was generated, to be used for debt amortization or public investment.\n\n(…)\n\nARTICLE 19- Compliance with the fiscal rule during the formulation and budgeting stages.\n\nThe Ministerio de Hacienda shall make the budgetary allocation of the budgetary titles that make up the central Administration in full adherence to the provisions of this law and of Ley N.º 8131, Administración Financiera de la República y Presupuestos Públicos, of 18 September 2001.\n\nThe Dirección General de Presupuesto Nacional shall verify that budgetary modifications and extraordinary budgets comply with the provisions of article 11 of this law and of Ley N.º 8131. In the event that such modifications imply non-compliance with the rule established herein, this Dirección must apply the provisions of article 177 of the Constitución Política, and shall inform the minister of Hacienda and the president of the República.\n\nIn the case of resources for deconcentrated bodies, the Minister of Finance (ministro de Hacienda) shall decide, based on criteria of fiscal sufficiency (suficiencia fiscal), respect for fundamental rights, and following the priorities of the National Development Plan (Plan Nacional de Desarrollo), the amount to be budgeted to these bodies and its growth.\n\nThe rest of the Non-Financial Public Sector (Sector Público no Financiero) entities must prepare their ordinary budget, extraordinary budget, and budget modifications (modificaciones presupuestarias) in full compliance with the provisions of Article 11 of this law. The verification of compliance with this rule shall be the responsibility of the Office of the Comptroller General of the Republic (Contraloría General de la República), which shall consider, for purposes of the legality review (bloque de legalidad) it performs, the certification that the Technical Secretariat of the Budgetary Authority (Secretaria Técnica de la Autoridad Presupuestaria) shall issue on compliance with the fiscal rule (regla fiscal). In the event that the Technical Secretariat of the Budgetary Authority certifies a breach of the fiscal rule by entities of the Non-Financial Public Sector, the Office of the Comptroller General of the Republic shall assess that certification and shall resolve as appropriate.\n\nTo address the provisions of this rule, the entities of Article 5 of this law, whose budget is subject to approval\n\nby the Comptroller General of the Republic (Contraloría General de la República), must submit copies of their ordinary and extraordinary budgets, and budget modifications, to the Technical Secretariat of the Budgetary Authority (Secretaria Técnica de la Autoridad Presupuestaria).\n\nThe Technical Secretariat of the Budgetary Authority will verify that the budget modifications and extraordinary budgets of the entities of the rest of the Non-Financial Public Sector (Sector Público no Financiero) comply with the provisions of article 11 of this law. Should situations arise that could lead to non-compliance with the rule, the Technical Secretariat of the Budgetary Authority must inform the Comptroller General of the Republic accordingly. Likewise, the entities of the Non-Financial Public Sector will remit copies of their quarterly executions and their budget liquidation to the Technical Secretariat of the Budgetary Authority.\n\nThe Technical Secretariat of the Budgetary Authority must communicate the results of the verifications mandated by this regulation, in accordance with the following deadlines, no later than the last business day of October of each year for the review of initial budgets, and within a period of ten business days, counted from receipt of the\n\n(...)\n\n*ARTICLE 26- Sanctions.* The unjustified breach of the fiscal rule and the control thereof constitutes a serious offense against the Public Treasury, and shall be sanctioned as indicated in article 68 of Law No. 7428, Organic Law of the Office of the Comptroller General of the Republic, of 7 September 1994. The foregoing is without prejudice to the provisions of article 339 of Law No. 4573, Penal Code, of 4 May 1970.\n\nIt is incumbent upon the Legislative Assembly to proceed against the comptroller and the sub-comptroller general of the Republic who fail in their duty to duly control compliance with the fiscal rule, under the terms established by article 43 of Law No. 7428, and considering the provisions of Law No. 8292, General Law of Internal Control, of 31 July 2002.”\n\nRegarding this regulation, the plaintiff parties accuse unconstitutionality by omission (inconstitucionalidad por omisión) on the basis of numbers 84 and 85 of the Political Constitution:\n\n“ARTICLE 84.- The University of Costa Rica is an institution of higher culture that enjoys independence for the performance of its functions and full legal capacity to acquire rights and contract obligations, as well as to establish its own organization and governance.\n\nThe other state institutions of university-level higher education shall have the same functional independence and equal legal capacity as the University of Costa Rica.\n\n*The State shall provide them with their own patrimony and shall collaborate in their financing.*\n\n*(Thus amended by the sole article of Law N° 5697 of June 9, 1975)*\n\n*ARTICLE 85.- The State shall provide the University of Costa Rica, the Technological Institute of Costa Rica, the National University, and the State Distance University with their own patrimony and shall create for them their own revenues, independently of those generated within these institutions.*\n\n*In addition, it shall maintain—with current revenues and with others that may be necessary—a special fund for the financing of State Higher Education. The Central Bank of Costa Rica shall administer that fund and, each month, shall place it in twelfths, to the order of the aforementioned institutions, according to the distribution determined by the body in charge of the coordination of state university higher education. The revenues of that special fund may not be abolished or diminished, unless other, better ones that substitute them are simultaneously created.*\n\n*The body in charge of the coordination of State University Higher Education shall prepare a national plan for this education, taking into account the guidelines established by the current National Development Plan.*\n\n*That plan must be completed, at the latest, by June 30 of years divisible by five and shall cover the following five-year period.*\n\nIt will include both the operating expenses and the investment expenses deemed necessary for the proper performance of the institutions mentioned in this article.\n\nThe Executive Branch shall include, in the ordinary expenditure budget of the Republic, the corresponding allocation, as set forth in the plan, adjusted according to the variation in the purchasing power of the currency.\n\nAny dispute that arises regarding the approval of the budgetary amount for the State Higher Education national plan shall be resolved by the Legislative Assembly.\n\nTransitory.- During the five-year period of 1981-1985, the distribution of the special fund referred to in this article shall be made as follows: 59% for the Universidad de Costa Rica; 11.5% for the Instituto Tecnológico de Costa Rica; 23.5% for the Universidad Nacional; and 6% for the Universidad Estatal a Distancia.\n\n(Thus amended by Article 1 of Law No. 6580 of May 18, 1981).”\n\n**VIII.- On the autonomy of state universities.** Regarding this aspect, the Chamber ruled in judgment No. 2019006935 of 11:40 a.m. on April 24, 2019:\n\n**“V.- On university autonomy.** From its inception, the Chamber addressed the scope of university autonomy established in Article 84 of the Political Constitution, in the following sense:\n\n“VI.- MEANING OF THE CONCEPT OF AUTONOMY.- (...) As provided in Article 84 of the Political Constitution, the Universities of the State are endowed with independence for the performance of their functions and with full legal capacity to acquire rights and contract obligations, as well as to establish their own organization and government. That autonomy, which has been classified as special, is complete and, therefore, different from that of the rest of the decentralized entities (decentralized entities) in our legal system (primarily regulated elsewhere in the Political Charter: Articles 188 and 190), and means, to begin with,\n\npart of its most important aspects, that those (sic) are outside the direction of the Executive Branch and its hierarchy, that they possess all the administrative faculties and powers necessary to carry forward the special purpose legitimately entrusted to them; that they can self-determine, in the sense that they are enabled to establish their plans, programs, budgets, internal organization and structure their own governance. They have regulatory power (autonomous and of execution); they can self-structure, distribute their competencies within the internal sphere of the entity, deconcentrate in what is legally possible and licit, regulate the service they provide, and decide freely on their personnel (as this Chamber already established in Resolution No. 495-92). These are the administrative, political, organizational, and financial modalities of autonomy that correspond to public universities. University autonomy has as its principal purpose, to procure for the entity all the necessary legal conditions so that it carries out with independence its mission of higher culture and education. (...) the university, as a center of thought\n\n\">free, it must and has to be free from pressures or measures of any nature that tend to prevent it from fulfilling, or that threaten, that, its great purpose.-\n\nVII.- THE LIMITS (sic) OF LEGISLATIVE POWER IN RELATION TO UNIVERSITY AUTONOMY.- (...) Although it is true—as has already been demonstrated—that the Legislative Assembly can regulate matters concerning universities, it is forbidden from preventing, subtracting or diminishing from those institutions those powers that are necessary for them to fulfill their corresponding purpose and that form (sic) their own Autonomy. That is to say, to express it in the terms of certain relevant doctrine, those entities have the initial, independent and unrestricted ownership and exercise of all administrative and teaching powers for the fulfillment of their material specialization, without this (sic) being able to be undermined by the Law. (...)\" (The highlighting is from the original). (Judgment number 1993-1313, of 13:54 hours on March 26, 1993. In a similar vein, see judgments number 1997-04570, of 12:51\n\nof the 14:49 hours of August 1, 1997, and 2004-10049 of the 14:49 hours of September 13, 2004)\n\nIn summary of the foregoing, the public universities of our country enjoy a privileged autonomous status within the decentralized public sector, since this independence encompasses all areas (administrative, political, financial, and organizational). In the exercise of said autonomy, according to the cited precedent, they may self-structure, distribute their competencies within the internal sphere of the entity, decentralize (desconcentrarse) to the extent legally possible and lawful, regulate the service they provide, and freely decide on their personnel, among other things. To this end, they may issue the regulations required for their organization:\n\n\"In reality, Article 84 of the Constitution establishes a regulatory reserve in favor of the universities, in the sense that their regulatory power (poder reglamentario) is the only one competent to regulate the organization of the university service; provisions that thus integrate a particular legal subsystem. The foregoing, however, should not be interpreted to mean\n\n...detached from state regulations. As has been rightly affirmed, the university institution is one more institution within the State and must operate within the framework of the general legal system.” (judgment No. 2002-8867 of 14:45 hours of September 11, 2002, reiterated in No. 2015-16454 of 9:05 hours of October 23, 2015).\n\nUnder that scheme, the University Council (Consejo Universitario) approved in session No. 3784-01 of June 26, 1991, the “Regulations of the Academic Salary System (Régimen Salarial Académico) of the University of Costa Rica,” published in Supplement (Alcance) to the University Gazette (Gaceta Universitaria) No. 5-91 of August 19, 1991, which are being challenged here. Now, even though this regulation was issued by the University Council in the exercise of that autonomy, the truth is that its articles would not be exempt from complying with the parameters of constitutionality, to which every legal system must be subject, and under that specification the allegations raised by the plaintiffs are hereby reviewed.”\n\n**VIII.- Regarding the Special Fund for Higher Education (FEES).**\n\nRegarding the scope of the FEES, this Court ruled in resolution no. 2018019511 of 11:45 p.m. on November 23, 2018, as follows:\n\n\"(…) it is pertinent to clarify the scope of the Fondo Especial para la Educación Superior, as regulated in the constitutional articles related to the financing of public universities and in other laws, with respect to what is proposed in the legislative bill 'Strengthening of Public Finances.'\"\n\nLaw No. 5909 of June 10, 1976, \"Tax Reform Law,\" in article 7, states:\n\n\"ARTICLE 7.- Special fund for the financing of Higher Education.-\nFor the purposes of the provisions of articles 84 and 85 of the Political Constitution, a special fund is created for the financing of Higher Education, which shall be composed of the following resources:\na) The proceeds from the Tax on Transfers of Real Property, created by article 3 of this law;\nb) Twenty-five percent (25%) of the income tax revenues, which sum may reach up to thirty percent (30%) of such revenues; and\nc) The proceeds from the tax on bearer-share corporations, created by article 2 of this law.\nThe Banco Central de Costa Rica shall make the corresponding allocations for the formation of the fund, which shall be distributed in accordance with the rules and principles established in the Convenio de Cooperación de la Educación Superior en Costa Rica.\"\n\nSubsequently, through Law No. 6450, \"Reform of the Fiscal Code, Income Tax Law, Law Creating the Ministry of Public Works and Transport,\" of July 15, 1980, it was provided:\n\n\"Article 3.- From the resources originating from the increased revenues achieved with the reforms introduced by this law, the sums of thirty million colones (¢ 30,000,000.00) and fifteen million colones (¢ 15,000,000.00) shall be allocated as own and independent revenues of the Universidad Nacional and the Instituto Tecnológico de Costa Rica, respectively.\nFrom the resources originating due to the reforms to the Income Tax Law, the sum of one hundred sixty-two million, eight hundred thousand colones (¢ 162,800,000.00) shall become part of the Fondo Especial de Educación Superior, and, additionally, on a one-time basis in this year of 1980, the sum of sixteen million, five hundred thousand colones (¢16,500,000.00) for the Universidad Estatal a Distancia and two million colones (¢ 2,000,000.00) for the Consejo Nacional de Investigaciones Científicas y Tecnológicas.\nAny surplus produced by the revenues created by this law shall augment the funds of the Caja Única del Estado.\nFor 1981 onwards, the Fondo Especial de la Educación Superior shall be increased by sixteen million, five hundred thousand colones (¢ 16,500,000.00) over the one hundred sixty-two million, eight hundred thousand colones (¢162,800,000.00) with which the Fund is augmented as provided in the second paragraph of this article, consequently increasing to the amount of one hundred seventy-nine million, three hundred thousand colones (¢179,300,000.00). On the understanding that starting in 1981, the Universidad Estatal a Distancia is integrated into this Fund.\"\n\nNow, at the dates of the aforementioned laws, articles 84 and 85 of the Political Constitution stipulated:\n\n\"Article 84.--The Universidad de Costa Rica is an institution of higher culture that enjoys independence in the performance of its functions, and full legal capacity to acquire rights and contract obligations, as well as to establish its own organization and government.\nArticle 85.--The State shall endow the Universidad de Costa Rica with its own assets; it shall create the necessary revenues for it and shall contribute to its maintenance with a sum not less than that representing ten percent of the annual budget of expenses of the Ministry in charge of public education, an amount that shall be disbursed in monthly installments. (*).\"\n\nIt was not until the constitutional reform introduced through Law No. 6580 of May 18, 1981, that the special fund for the financing of higher education was incorporated into our Magna Carta:\n\n\"Article 85.- The State shall endow the Universidad de Costa Rica, the Instituto Tecnológico de Costa Rica, the Universidad Nacional, and the Universidad Estatal a Distancia with their own assets and shall create their own revenues for them, independently of those originating in these institutions.\nFurthermore, it shall maintain—with the current revenues and with others that may be necessary—a special fund for the financing of State Higher Education. The Banco Central de Costa Rica shall administer this fund and, each month, shall place it in twelfths, at the disposal of the aforementioned institutions, according to the distribution determined by the body in charge of the coordination of state university higher education. The revenues of this special fund cannot be abolished or diminished, unless other improved substitutes are simultaneously created.\nThe body in charge of the coordination of State University Higher Education shall prepare a national plan for this education, taking into account the guidelines established by the current Plan Nacional de Desarrollo.\nThis plan must be completed, no later than June 30 of years divisible by five and shall cover the immediately following five-year period. It shall include both the operating expenditures and the investment expenditures deemed necessary for the proper performance of the institutions mentioned in this article.\nThe Executive Branch shall include, in the ordinary budget of expenses of the Republic, the corresponding line item, indicated in the plan, adjusted according to the variation in the purchasing power of the currency.\nAny dispute arising regarding the approval of the budget amount of the national plan for State Higher Education shall be resolved by the Asamblea Legislativa.\"\n\nTransitory.- During the five-year period of 1981-1985, the distribution of the special fund, referred to in this article, shall be made as follows: 59% for the Universidad de Costa Rica; 11.5% for the Instituto Tecnológico de Costa Rica, 23.5% for the Universidad Nacional and 6% for the Universidad Estatal a Distancia.\"\n\nSubsequently, Law No. 7386 of March 18, 1994, reformed the first paragraph of article 3 of Law No. 6450, \"Reform of the Fiscal Code, Income Tax Law, Law Creating the Ministry of Public Works and Transport,\" of July 15, 1980:\n\n\"Article 3.- From the revenues achieved with the income tax, Income Tax Law, No. 7092 of April 21, 1988, the following sums shall be allocated for 1993: one hundred thirty million colones (¢130,000,000), for the Instituto Tecnológico de Costa Rica; two hundred sixty million colones (¢260,000,000), for the Universidad de Costa Rica, which shall be distributed as follows: seventy-five million colones (¢75,000,000), for the Sede de Paraíso de Cartago and the remaining one hundred eighty-five million colones (¢185,000,000), for development programs; two hundred sixty million colones (¢260,000,000), for the Universidad Nacional, which shall be distributed as follows: two hundred million colones (¢200,000,000), for the Sede Central, thirty million colones (¢30,000,000), for the Sede Regional Brunca and thirty million colones (¢30,000,000), for the Sede Regional Chorotega. These amounts shall constitute own and independent revenues of each Institution starting from the fiscal period of 1994 and, thereafter, shall be updated annually according to the inflation index, using a procedure similar to that used in the requalification of the Fondo para la Educación Superior.\"\n\nAdditionally, through Law No. 7676 of July 23, 1997, which reformed article 78 of the Political Constitution, higher education was incorporated within the category of public spending allocated to state education:\n\n\"ARTICLE 78.- Preschool education and general basic education are mandatory. These and diversified education in the public system are free and funded by the Nation.\nIn state education, including higher education, public spending shall not be less than six percent (6%) annually of the gross domestic product, in accordance with the law, without prejudice to the provisions of articles 84 and 85 of this Constitution.\nThe State shall facilitate the continuation of higher studies for those who lack pecuniary resources. The awarding of scholarships and aid shall be the responsibility of the Ministry of the sector, through the body determined by law.\n \nTransitory (article 78).- Until the law referred to in the second paragraph of article 78 of the Constitution is enacted, the gross domestic product shall be determined according to the procedure established by the Executive Branch by decree.\"\n\nLikewise, Law No. 8457 of October 4, 2005 (called \"Reform of the Fiscal Code, Income Tax Law, Law Creating the Ministry of Public Works and Transport\"), added article 3 bis to Law No. 6450 of July 15, 1980:\n\n\"Article 3 bis.- From the revenues achieved with the income tax, according to the Income Tax Law, No. 7092, of April 21, 1988, and its reforms, for 2006, the same sum budgeted by concept of the application of the previous article for the Universidad de Costa Rica and the Universidad Nacional shall be allocated in favor of the Universidad Estatal a Distancia: Said amount shall constitute own and independent revenue of the Institution, starting from the fiscal period of 2007; furthermore, thereafter, it shall be updated annually, according to the inflation index, using a procedure similar to that used in the requalification of the Fondo para la Educación Superior.\"\n\nFurthermore, through Law No. 8954 of June 9, 2011, article 78 of the Political Constitution was reformed to increase the percentage of public spending on state education from 6% to 8% of the gross domestic product.\n\nSubsequently, through Law No. 9131 of April 8, 2013 (called \"Reform of Law No. 6450 'Reform of the Fiscal Code, Income, Higher Education Fund, Bearer Shares'\"), the following was added to the end of the first paragraph of article 3 of Law No. 6450 of July 15, 1980:\n\n\"The amount disbursed to the Instituto Tecnológico de Costa Rica shall be the same as that for the Universidad de Costa Rica and the Universidad Nacional, and shall be used for the establishment and development of the university campuses in the province of Limón and in the Peninsula de Osa zone; likewise, for other projects of the Institute.\"\n\nNow, in the sub lite case, articles 3 and 3 bis of Law No. 6450, which are sought to be repealed, regulate different situations.\n\nFirst, article 3 establishes:\n\n1. Own and independent revenues for the public universities.\n a. First, own revenues are set for the Universidad de Costa Rica (¢260,000,000), the Universidad Nacional (¢260,000,000), and the Instituto Tecnológico de Costa Rica (¢130,000,000), as well as a method of updating similar to that used in the requalification of the Fondo para la Educación Superior.\n b. Additionally, on a one-time basis in 1980, the sum of ¢16,500,000 was granted to the Universidad Estatal a Distancia and the sum of ¢2,000,000 to the Consejo Nacional de Investigaciones Científicas y Tecnológicas.\n2. Resources of the Fondo Especial de Educación Superior specifically:\n a. First, an initial amount of ¢162,800,000 is determined.\n b. From 1981 onwards, the fund is increased by ¢16,500,000 over the ¢162,800,000 with which the Fund is augmented, as provided in the second paragraph of this article. Thus, this amount rises to ¢179,300,000, on the understanding that the Universidad Estatal a Distancia is integrated into that Fund starting in 1981.\n\nLikewise, article 3 bis provides:\n\n1. Own and independent revenues for the Universidad Estatal a Distancia and its method of updating, according to the inflation index, using a procedure similar to that used in the requalification of the Fondo para la Educación Superior. This university is entitled to the same sum budgeted, by concept of the application of article 3, for the Universidad de Costa Rica and the Universidad Nacional.\n\nRelevantly, it should be highlighted that, although article 78 of the Political Constitution recognizes that higher education is included within the 8% annually of the gross domestic product of public spending directed to state education, it is no less true that such provision indicates that this was stipulated \"without prejudice to the provisions of articles 84 and 85 of this Constitution.\"\n\nArticle 84 of our Magna Carta establishes that the Universidad de Costa Rica is an institution of higher culture that enjoys independence in the performance of its functions and full legal capacity to acquire rights and contract obligations, as well as to establish its own organization and government (the same functional independence and equal legal capacity recognized for the other university higher education institutions); furthermore, that the State shall endow them with their own assets and shall collaborate in their financing.\n\nFor its part, constitutional article 85 provides:\n\n\"The State shall endow the Universidad de Costa Rica, the Instituto Tecnológico de Costa Rica, the Universidad Nacional, and the Universidad Estatal a Distancia with their own assets, and shall create their own revenues for them, independently of those originating in these institutions.\nFurthermore, it shall maintain—with the current revenues and with others that may be necessary—a special fund for the financing of State Higher Education. The Banco Central de Costa Rica shall administer this fund and, each month, shall place it in twelfths, at the disposal of the aforementioned institutions, according to the distribution determined by the body in charge of the coordination of state university higher education. The revenues of this special fund cannot be abolished or diminished, unless other improved substitutes are simultaneously created.\nThe body in charge of the coordination of State University Higher Education shall prepare a national plan for this education, taking into account the guidelines established by the current Plan Nacional de Desarrollo.\nThis plan must be completed, no later than June 30 of years divisible by five and shall cover the immediately following five-year period.\n\nIt shall include both operating expenditures and investment expenditures deemed necessary for the proper performance of the institutions mentioned in this article.\n\nThe Executive Branch shall include, in the ordinary expenditure budget of the Republic, the corresponding item, indicated in the plan, adjusted in accordance with the variation in the purchasing power of the currency.\n\nAny dispute that arises regarding the approval of the budgetary amount of the national plan for State Higher Education shall be resolved by the Legislative Assembly.\n\n*Transitory Provision.—* During the five-year period 1981-1985, the distribution of the special fund referred to in this article shall be made as follows: 59% for the University of Costa Rica; 11.5% for the Technological Institute of Costa Rica, 23.5% for the National University, and 6% for the State Distance University.\n(Thus amended by Article 1 of Law No. 6580 of May 18, 1981).\" (The highlighting does not appear in the original).\n\nIt is observed, then, that the aforementioned provision certainly states that the revenues may not be abolished or diminished unless other improved substitutes are simultaneously created; however, the foregoing is directed solely at the revenues that make up the Special Fund for the Financing of State Higher Education, and not at those other revenues that belong to the state universities (\"independently of those originating in these institutions,\" as constitutional Article 85 reads). Likewise, the mandate that this fund be maintained with the current revenues and others that are necessary is explained because, before the special fund was included constitutionally, it had already been established by law, assigning the respective resources to it.\n\nPrecisely, Law No. 6450, both in the version prior to the amendment of constitutional Article 85 and in the version subsequent to it, always provided for a differentiated treatment between the universities' own and independent revenues and the resources of the Special Fund for Higher Education. Furthermore, in the modifications that said law underwent (subsequent to the cited constitutional amendment), it was stipulated that the procedure for updating their own revenues was assimilated to that used in the reclassification of the Fund for Higher Education, which confirms that these are two distinct matters.\n\nBy virtue of the foregoing, since the revenues contemplated in the first paragraph of Article 3 and Article 3 bis of Law No. 6450 belong to the universities and are independent of those originating in them, such sums are not covered by the constitutional guarantees of the FEES (impossibility of abolishing or diminishing revenues without creating others to replace them). Likewise, as for the remaining paragraphs of the aforementioned Article 3, while they refer to resources assigned to the FEES, it is no less true that they contain nominal amounts in favor of the universities; therefore, Article 24 of Title IV, \"Fiscal Responsibility of the Republic,\" of the bill under consultation, respects the content of Article 85 of the Political Constitution. That norm establishes:\n\n\"ARTICLE 24- Budgetary Allocation\n\nThe National Budget Directorate shall carry out the budgetary allocation of the transfers using the criteria of the previous article. Said allocation may not be less than the current budget at the time this law is approved.\"\n\nIn this regard, this article guarantees that the items repealed from the FEES may not be reduced relative to the current budget at the time the law is approved.\n\nHowever, the legislator in the bill under consultation also extended the application of the aforementioned norm to the repealed own revenues; therefore, no decrease in income is observed that would nullify the constitutional purposes of the universities or that would mean the State is not guaranteeing their revenues and their own heritage.\n\nRegarding the projections made by the consulting party, through which they seek to exemplify a decrease in the nominal amount guaranteed by Article 24 of the bill, such doubts refer to future and uncertain situations that cannot be evaluated in the abstract by this Chamber. Even if such a scenario were to arise, it would not necessarily entail an automatic violation of the Constitution's Law, since it would be necessary to analyze the particularities of the specific historical moment, as well as the potential content and respective application of the normative provisions in force at that juncture.\n\nThe consulting parties also allege a violation of the principles of progressivity and non-regressivity related to the fundamental right to education.\n\nOn this point, Article 2.1 of the International Covenant on Economic, Social and Cultural Rights establishes:\n\n\"Article 2\n\n1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures\" (The highlighting does not appear in the original).\n\nLikewise, Article 1 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, \"Protocol of San Salvador,\" provides:\n\n\"Article 1\n\nObligation to Adopt Measures\n\nThe States Parties to this Additional Protocol to the American Convention on Human Rights undertake to adopt the necessary measures, both domestically and through international cooperation, especially economic and technical, to the maximum of their available resources and taking into account their degree of development, for the purpose of achieving progressively, and in accordance with their domestic legislation, the full realization of the rights recognized in this Protocol.\" (The highlighting does not appear in the original).\n\nThus, first, it is observed that when applying a conventionality review in matters of entitlements, a relevant aspect to consider is the financial sustainability and availability of the State's economic resources, even according to its level of development, which depends on the economic context at a given historical moment and on the technical basis available to justify some type of measure, in a way that always seeks the greatest possible realization of such rights, according to what the economic circumstances permit. Precisely, this progressive achievement of which the norms speak undoubtedly constitutes an objective to be reached, but subject to an inexcusable condition: that there actually are resources.\n\nSecond, the principles of progressivity and non-regressivity do not imply a right to the immutability of the legal system. By way of example, in matters of environmental human rights, this Chamber has stated:\n\n\"From the principle of progressivity of human rights and the principle of non-retroactivity of norms to the detriment of acquired rights and consolidated legal situations, embodied in Article 34 of the Magna Carta, the principle of non-regressivity or irreversibility of the achieved benefits or protection is derived. The principle stands as a substantive guarantee of rights, in this case, of the right to a healthy and ecologically balanced environment, by virtue of which the State is obliged not to adopt measures, policies, nor approve legal norms that worsen, without reasonable and proportionate justification, the status of the rights achieved until then. This principle does not imply absolute irreversibility, since all States experience national situations, of an economic, political, social nature, or due to natural causes, that negatively impact the achievements attained until then and force a downward reassessment of the new level of protection (…) Consequently, in application of these two principles, the Constitutional Chamber has established that it is constitutionally valid to expand the physical extension of protected areas by executive decree (principle of progressivity); however, the reduction can only be carried out by law and after conducting a technical study adjusted to the principles of reasonableness and proportionality, to the requirements of ecological balance and a healthy environment, and to the general welfare of the population, which serves to justify the measure.\" (Judgment No. 2012-013367 of 11:33 a.m. on September 21, 2012, highlighting does not appear in the original; in the same vein, see Judgments No. 2017-005994 of 11:00 a.m. on April 26, 2017, and 2014-012887 of 2:30 p.m. on August 8, 2014).\n\nThe foregoing applies not only to environmental human rights but to all in general, as a matter of principle. Neither the right of progressivity nor the right of non-regressivity oppose the mutability inherent to law (permanent and inevitable modification), since no right is immutable or eternal, as this would signify the petrification of the legal system and would cause the Law to cease being a dynamic means for resolving society's problems, which perpetually vary over time. What the mentioned principles do demand is that the general trend should always and preferably aspire to increase the coverage of human rights, and likewise of entitlements, in the interest of the Social State of Law; however, such a goal is not unrelated to the socio-economic context of a specific historical juncture nor to the obligation to carry out an exercise of balancing and optimizing the various constitutional principles, rights, and values at play (for example, between the principle of the Social State of Law and that of Budgetary Balance), so that, in the context of a particularly serious financial unsustainability of the State, duly accredited from a technical point of view, measures can be taken to alleviate the situation, provided that these are adopted while safeguarding the fundamental rights enshrined in the Political Constitution and the instruments of international human rights law ratified by Costa Rica, as well as the essential qualities of the country's political regime (in a democratic, free, independent, multi-ethnic, and pluricultural republic, whose Government is popular, representative, participatory, alternative, and responsible), which implies that the remedies in question cannot empty any constitutional right of its content, a situation that, in this specific case and at this time, is not observed to occur with the challenged regulation.\"\n\n**IX.- Regarding the Alleged Unconstitutionalities.** The plaintiff parties accuse unconstitutionality by omission in relation to Article 85 of the Political Constitution. They argue that the FEES was not exempted from the application of Articles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No.\n\n9635, despite the fact that its origin and fixing regime are of a constitutional nature, meaning that ordinary law cannot come to restrict it. They allege an unconstitutionality by omission with respect to articles 84 and 85 of the Magna Carta, since the state universities were not relieved of complying with Articles 5, 6, 11, 14, 17, 19 and 26 of Title IV of Law No. 9635, even though they enjoy full legal capacity to acquire rights and contract obligations, as well as to establish their own organization and government, which empowers them for the following: 1) definition and approval of the National Development Plan for State University Higher Education with five-year validity (Plan Nacional de Desarrollo de la Educación Superior Universitaria Estatal, PLANES); 2) formulation and approval of their institutional budgets to comply with that plan without the intervention of the Executive Branch or its government bodies. They state that, by virtue of such independence, they possess the power to formulate and approve the National Development Plan for the purposes of university education, in which task they annually formulate and approve their institutional budgets. They argue that, through the annual allocation of funds with specific constitutional destination for the FEES, the State provides budgetary content to the state universities so that they may carry out their purposes and tasks, as well as their annual operational plans, in accordance with the current PLANES and their powers of governmental independence, including university planning, organization, and administration. They consider that the annual execution of the PLANES and the annual disbursement of the FEES were subjected to conditions not authorized by article 85 of the Political Constitution. They reproach that the state universities were made subject, in matters of political independence, administration, and government, to the directives and orders of the Executive Branch, both through the Ministry of Finance and the Budgetary Authority, which transgresses the power of self-determination of the state universities to establish\n\nplans, programs, and budgets, an integral part of university autonomy. They argue that state universities are outside the scope of the Budgetary Authority (Autoridad Presupuestaria). They add: *\"as recognition of their constitutional independence in matters of policy, administration, and governance, as expressly provided by article 1°, subsection d) of the Financial Administration and Public Budgets Law (Ley de Administración Financiera de la República y Presupuestos Públicos), N°8131 of September 18, 2001, published in the official gazette La Gaceta number 198 of October 16, 2001. \"ARTICLE 1.- Scope of application This Law regulates the economic-financial regime of the organs and entities that administer or are custodians of public funds. It shall be applicable to: (...) d. The state universities, the municipalities, and the Caja Costarricense de Seguro Social, solely with respect to compliance with the principles established in title II of this Law, regarding responsibilities and to provide the information required by the Ministry of Finance for its studies. In all other respects, they are excepted from the scopes and the application of this Law.\"* They argue that the regime of constitutional independence conferred on the UCR is special and differs from that established for the other autonomous institutions by the Political Constitution (Constitución Política). They refer to the fact that in the minutes of the Constituent Assembly it was clarified that the regime of the institutions\n\n...autonomous institutions did not apply to the UCR: “Messrs. TREJOS and ESQUIVEL amended their motion in the following terms: ‘Appoint the directors of the autonomous institutions, in accordance with the law.’” The preceding wording was also objected to by several Representatives. Mr. ORTIZ asked if all directors of the autonomous institutions are going to be appointed by the Executive. If this is so, what will the situation of the University of Costa Rica be? Or will the Executive appoint only the directors whom the law empowers it to? Mr. FACIO clarified that, within the general structure of the 1949 Project, the University of Costa Rica is considered not as an autonomous institution but as an independent institution of higher culture. If that definition is maintained, there will not be the problem that Mr. Gonzalo Ortiz has raised.”\n\nThey add that the regime of autonomous institutions, regulated in Articles 188 and following of the Fundamental Law, considered their independence in matters of government, for which reason they could not be subjected to the centralized planning of the State through the National Development Plan; however, after the constitutional reform of provision 188 (introduced by Law No. 4123 of May 31, 1968), the autonomous institutions became subject to the law\n\nin matters of governance, differentiating and distancing itself from the independence regime in force for university governance. They explain that the reform to ordinal 84 of the Political Constitution (effected by law no.\n\nof the state university higher education institutions’ the same attributes of functional independence and full legal capacity, inherent to their university autonomy, with full independence in matters of governance, which includes planning, administration, and organization. They mention that the regime of independence enjoyed by the state higher education university institutions encompasses the administrative, political, organizational, and inherent modalities of university autonomy, which has been classified as special, complete, and distinct from the rest of the decentralized entities contemplated in Articles 188 to 190 of the Political Constitution. They indicate that constitutional provision 84 preserves, contains, and guarantees the exercise of the public powers inherent to those university institutions. The foregoing implies that “a) They are (sic) outside the direction of the Executive Branch and its hierarchy, b) They have all the administrative faculties and powers necessary to carry out the special purpose legitimately entrusted to them. c) They enjoy the power of self-determination to establish their plans, programs, budgets, internal organization, and to structure their own government. d) They carry out their mission of higher culture and education with independence. e) They impart teaching, conduct and deepen scientific research, cultivate the arts and letters in their maximum expression, analyze and criticize, with objectivity, elevated knowledge, and rationality, the social, cultural, political, and\n\neconomic well-being of its people and the world, propose solutions to the great national problems, serve as driving forces for ideas and actions to achieve development at all levels, without prejudice to other specialties or subjects assigned to it.\" They assert that the essential content of constitutional article 84 prescribes that the university, as a center of free thought, must and has to be exempt from pressures or measures of any nature that tend to prevent it from fulfilling its great missions or that threaten this (they mention rulings nos.\n\n495-92 and 1313-93 of the Constitutional Chamber (Sala Constitucional). They state that the independence of self-governance vested in state university centers prevents the Executive Branch (Poder Ejecutivo) and its dependencies from interfering in university governance and planning. They recount that the independence of organization that state universities exclusively possess allows them to organize internally, to deconcentrate for the pursuit of their own purposes, and to provide themselves with the required internal regulations with complete disregard for Parliament. They maintain that state institutions of higher education, when they enact their organic statutes, issue an act that by its nature has the rank of material law, since they substitute for the competence of the Legislative Assembly (Asamblea Legislativa). They add that just as ordinary law depends to a degree on the Magna Carta (Carta Magna), university statutes depend directly on the constitutional norm. They assert that the power and independence of university organization precludes the Legislative Branch from issuing laws on the governance, organization, or administration of the universities, or that prevent the latter from fully exercising their legal capacity to acquire rights and contract obligations, or that likewise restrict or truncate the free fulfillment of their mission. They explain that, in accordance with Articles 84 and 85 of the Political Constitution (Constitución Política), the framework of constitutional independence conferred upon state universities also includes that of ownership and free disposal over their own assets (patrimonio propio), constitutionally separated from that of the State. They add: \"Over this patrimonial estate, called the University Treasury (Hacienda Universitaria), separate from the Public Treasury (Hacienda Pública), these institutions exercise their constitutionally guaranteed power of self-determination through their full legal capacity to acquire rights and contract obligations. This University Treasury\n\ncomprises all of its assets, both material and financial and budgetary, which remain subject exclusively to the constitutional university power of self-determination.” They note that, in the administration of its “University Treasury (Hacienda Universitaria)”, all state universities have exercised their full legal capacity to acquire and confer rights and to contract obligations with their own assets in the exercise of their constitutional independence in matters of administration and governance, without requiring additional authorizations or approvals external or extraneous to their own governing authority. They indicate that, as part of the exercise of this power of asset disposition and political, administrative, and governmental independence, constitutional article 85 establishes that state universities shall have their own National Plan for the Development of Higher Education (Plan Nacional de Desarrollo de Educación Superior) that determines the needs and specifies the quantification of the FEES, as well as the expenditures and investments that must be considered annually by these universities for the formulation of their institutional budgets, in such a way that each annual operational plan (plan operativo anual) fulfills the purposes, goals, and objectives described in the plan for the respective five-year period. They assert that, on the occasion of the foregoing, the national budget cannot detail the destination or expenditure line items of the universities, but rather must contain a pure and simple transfer, not subject to legal conditions not foreseen or authorized by constitutional article 85. They argue that any transfer destined for the financing of the FEES is ‘tied’ to the fulfillment of the purposes established in the PLANS, as regulated by article 85 of the Fundamental Law, such that no surplus\n\nbudgetary may have a destination different from that constitutionally established, such that there can be no reimbursement of sums to the single treasury of the State. Concerning the challenged ordinal paragraphs 5 and 6, they state that ordinary law cannot render constitutional provisions ineffective. They add that, with or without an express exception in subparagraph 6, its application to state universities contradicts their constitutional regime, because it conditions the transfer of the FEES to legal-type restrictions (fiscal rule (regla fiscal)) and violates their regime of autonomy in this matter. They explain that the universities would be subject to the direct intervention of the Executive Branch and its government policies through the Ministry of Finance and the Budgetary Authority, as established in the challenged Articles 11, 14, and 19. They mention that the foregoing renders ineffective the annual indexation that constitutional subparagraph 85 orders for the FEES, as well as nullifying the operational and investment needs contained in the PLANS for the fulfillment of the universities' purposes aimed at guaranteeing the fundamental right to education, which is also established by ordinal paragraph 78 of the Magna Carta by requiring the State to invest no less than 8% of the Gross Domestic Product in Education, without restrictions derived from the so-called fiscal rule (regla fiscal) being able to be imposed. They state that the Constitution is violated by applying the fiscal rule to state universities and subjecting them to the sanctioning regime of the challenged subparagraph 26. They argue that not only are mandatory regulations stipulated for the formulation of university budgets contrary to the constitutional regime (which is of direct application\n\nand immediate), but also that administrative and criminal sanctions are contemplated against the authorities that contravene the challenged clauses 5, 6, 11, 14, and 15. They indicate that the \"constitutional violation due to the omission incurred in Title IV of Law No. 9635\" is even more evident when its Article 17 orders the return to the national budget of any surplus from the university budget, thereby diverting the constitutional purpose of the FEES transfer for use in a different end - debt amortization or public investment -. They recount that any resulting surplus forms part of the \"University Treasury\" (\"Hacienda Universitaria\") and cannot be returned to the national budget. Therefore, they consider that the application of the fiscal rule (regla fiscal) in the state university sphere would have no consequence whatsoever in favor of the Public Treasury, which renders it unjustified. They consider that the exoneration from the fiscal rule regime provided in Title IV of Law No. 9635 is constitutionally unavoidable, which is why they request that the unconstitutionality by omission of such legal provisions be declared because they violate the state university regime contemplated in Articles 84 and 85 of the Constitution, which are of full, direct, prevailing, and immediate application. They adduce that the Constitutional Chamber, in ruling No.\n\n2018019511 of 21:00 hours on November 23, 2018, ordered that the law \"could regulate the concept of 'public spending' (gasto público) in education, since Article 78 expressly authorizes it\"; however, that authorization neither applies to nor can affect ordinals 84 and 85 of the Constitution itself. They maintain that the exception of the fiscal rule (regla fiscal) for state universities is constitutionally imperative (by application of the aforementioned ordinals), as was justified in the resolution mentioned above with respect to numerals 73 and 177 eiusdem: \"In summary, the fact that the rule in question expressly excludes from the fiscal rule (regla fiscal) the resources of the Disability, Old Age, and Death Regime (Régimen de Invalidez, Vejez y Muerte, IVM) and the Non-Contributory Regime (Régimen No Contributivo) administered by the CCSS, is not per se unconstitutional, since, on one hand, the introduction of such exceptions is constitutionally imperative, and, on the other, such allusion does not prevent the sickness and maternity insurance (seguro de enfermedad y maternidad) from also being excluded by direct application of postulates 73 and 177 of the Political Constitution, so that with regard to such aspects no legal vacuum (vacío jurídico) emerges that contravenes the constitutional order.\" They mention these constitutional violations: \"As a corollary of all the foregoing, in the present case there is\n\nthe concurrence of two constitutional violations by omission in Title IV of Law No. 9635 of November 28, 2018: a) Constitutional violation by omission against Article 85 of the Political Constitution, for not exempting from compliance with Articles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. No. (sic) 9635 of December 3, 2018, the Special Fund for the Financing of State University Higher Education (Fondo Especial para el Financiamiento de la Educación Superior Universitaria Estatal, FEES) which has its own constitutional origin and regime for setting and determination, which ordinary law cannot abolish or repeal. b) Constitutional violation by omission against Articles 84 and 85 of the Political Constitution, for not exempting from compliance with Articles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. No. (sic) 9635 of December 3, 2018, the state universities which have full legal capacity to acquire rights and contract obligations, as well as to provide for their own organization and government, among which are included the definition and approval of their National Development Plan for State University Higher Education (Plan Nacional de Desarrollo para la Educación Superior Universitaria Estatal, PLANES), with a five-year term, as well as\n\nas well as the formulation and approval of their institutional budgets to comply with it, without the intervention of the Executive Branch or its government bodies.” They make the following petition: “Based on all of the foregoing, we request the Constitutional Chamber (Sala Constitucional) to process this action of unconstitutionality, for which we provide copies of the law, and to uphold the unconstitutionality alleged and claimed against articles 5, 6, 11, 14, 17, 19 and 26 of Title IV of Law No. No. (sic) of December 3, 2018, declaring in judgment: (…). B.- The unconstitutionality by omission of articles 5, 6, 11, 14, 17, 19 and 26 of Title IV of Law No. No. (sic) 9635 of December 3, 2018 for violation of article 85 of the Political Constitution, by not exempting the Special Fund for the Financing of State University Higher Education (Fondo Especial para el Financiamiento de la Educación Superior Universitaria Estatal, FEES) from its compliance, which possesses its own constitutional origin and regime for fixing and determination, which ordinary law can neither abolish nor repeal. C.- The unconstitutionality by omission of articles 5, 6, 11, 14, 17, 19 and 26 of Title IV of Law No. No. (sic) 9635 of\n\nDecember 3, 2018, for constitutional violation by omission against Articles 84 and 85 of the Political Constitution, for not exempting the formulation of state university budgets from compliance. D.- To dimension the effects of the judgment that upholds this action, preventing the Executive Branch, through the Ministry of Finance, the Budgetary Authority, and the Comptroller General of the Republic, from considering the formulation, approval, settlement, evaluation, and monitoring of university budgets exempt from compliance with the fiscal rule provided in Title IV of Law No. 9635. D.- To prevent both the Ministry of Finance, the Budgetary Authority, and the Comptroller General of the Republic from refraining from actions or omissions that directly or indirectly apply the fiscal rule to university budgets and finances or to the annual amount of the FEES that corresponds constitutionally.”\n\nFrom the foregoing, it follows that, although the plaintiffs develop arguments concerning university autonomy, the FEES, and the constitutional norms that regulate them, it is no less true that both at the beginning and at the end of their brief they expressly group their arguments into two unconstitutionalities by omission and, in fact, that is how it was literally set forth in their claim.\n\nThus, even though both university autonomy and the FEES find support in constitutional precepts and have been addressed by the jurisprudence of the Chamber (as observed in the preceding considerations), *prima facie* it is unavoidable to analyze the figure of unconstitutionality by omission for the purpose of clarifying whether the allegations of the plaintiff parties are capable of being assessed in the terms formulated by them in the *sub lite*.\n\nIn this regard, the Chamber, in resolution no. 2021017210 of 9:15 a.m. on August 4, 2021, stated:\n\n\"II.- ON UNCONSTITUTIONALITY BY OMISSION.- Additionally, it is important to note that Article 73 of the Ley de Jurisdicción Constitucional states in subsection f), that an action of unconstitutionality is available against the inertia, omissions, and abstentions of public authorities. Based on these norms, it is possible to affirm that through an action or consultation of constitutionality, a problem of unconstitutionality by omission can legitimately be raised. However, not every normative omission can be challenged before the constitutional jurisdiction. In the case of laws and other provisions of general scope, this Tribunal has reiterated that the omissions that can be challenged in this forum are only those that arise when confronted with a duty or obligation directly and expressly provided for in the Law of the Constitution or when it involves an implicit norm that entails discrimination against a subject (see, among others, judgments No. 2002-04394, of 4:24 p.m. on May 14, 2002, No. 2005-05649, of 2:39 p.m. on May 11, 2005, No. 2012-014167, of 4:00 p.m. on October 10, 2012, and No. 2015-017330, of 9:30 a.m. on November 4, 2015)\".\n\nIn addition, this Tribunal ordered in judgment no. 2019013748 of 9:20 a.m. on July 24, 2019:\n\n\"III.- On unconstitutionality by omission. In accordance with the provisions of Article 73 of the Ley de la Jurisdicción Constitucional, an action of unconstitutionality can be filed against the inertia, omission, or abstention of public authorities. A reading of that subsection f), of the aforementioned article, could lead one to consider that any omission by the branches of government, be it the Executive Branch or the Legislative Branch, is subject to review by the Constitutional Tribunal; however, the truth is that only those omissions that occur as a consequence of an express and direct mandate contained in the Constitución Política can be subject to constitutionality review through this action. On this matter, in vote number 2005-5649 of 2:39 p.m. on May 11, 2005, the following was stated:\n\n'III.- REVIEW OF LEGISLATIVE OMISSIONS AND PRINCIPLE OF SEPARATION OF FUNCTIONS. The Law of the Constitution, that is, the set of constitutional principles, values, and precepts contained in the Magna Carta, can be infringed by public authorities and private individuals through active or omissive conduct. In the specific case of the Asamblea Legislativa, that branch of government breaches the constitutionality block by action when it enacts unconstitutional laws or when, during the legislative procedure for their enactment, it incurs substantial defects of such magnitude that warrant their annulment. The Asamblea Legislativa infringes by omission the constitutionality parameter when, faced with an express or tacit mandate from the original constituent power or the amending power to enact a law developing a constitutional content or clause, it fails to do so –absolute omission– or when, despite having enacted a law, it is discriminatory, by omission, by not regulating the situation of a specific sector or group of the population or the potential addressees it should have included or covered –relative omission–. In both cases, this Constitutional Tribunal has sufficient competence and express normative authorization to exercise constitutionality review and declare a possible unconstitutionality of the omissive conduct. In effect, Articles 10 and 48 of the Constitución Política and Article 1 of the Ley de la Jurisdicción Constitucional entrust this specialized Chamber with ensuring the supremacy of the Law of the Constitution, so that if this Tribunal considers that an omissive conduct by the Asamblea Legislativa breaches it, it is exercising that preeminent and essential function and must so declare to restore the rule of the constitutional order. Observe that Article 73 of the Ley de la Jurisdicción Constitucional, in its subsection a), establishes that the action of unconstitutionality will be available \"Against laws and other general provisions, even those originating from acts of private subjects, that infringe, by action or omission, any constitutional norm or principle\"; this section covers the case of relative or partial omissions, since it presupposes that a law has already been enacted that is unconstitutional by omission by not including certain material situations, groups, or sectors of addressees it should have covered. Subsection f) of that same numeral prescribes that the action of unconstitutionality will also proceed \"Against the inertia, omissions, and abstentions of public authorities\"; there is no doubt that this normative hypothesis covers absolute legislative omissions, since the Asamblea Legislativa, as a branch of government or public authority, must comply with the express or tacit mandates imposed by the original constituent power or the amending power to mediate in the development of certain constitutional clauses or contents. Thus, it is evident that constitutionality review of legislative omissions does not collide with the principle of separation of functions (Article 9 of the Constitución Política), in this case, regarding those established by the Law of the Constitution for the ordinary legislator and those established by it for the Constitutional Tribunal. This type of oversight, far from weakening that principle, enacts and strengthens it, since it clearly demarcates the scope of the powers and competencies, by action and omission, of the Legislative Branch vis-à-vis the Law of the Constitution. It is necessary to remember that the Constitución Política has a normative and direct efficacy that strongly binds all constituted public authorities –including the Asamblea Legislativa and this Chamber– and urges them to respect and observe it, to prevent it from being circumvented in an oblique or indirect manner through omissive conduct or legislative silence, this Chamber being, by express constitutional provision (Article 10), its guarantor. IV.- TYPES OF LEGISLATIVE OMISSIONS REGARDING THE DEVELOPMENT OF CONSTITUTIONAL PRECEPTS. The constituent power may implicitly or explicitly provide that certain constitutional contents be developed by the legislator. In the first case, even if the constituent power does not provide that a law will regulate the matter, the nature of the matter requires legislative mediation for its adequate operative application; that is, these are not complete, self-executing, or automatically applicable constitutional norms, but rather they require legislatoris interpositio. The foregoing can also occur when, by application of the principle of legal reserve, a specific constitutional clause needs to be regulated by a legal norm (e.g., the regulation of fundamental rights, the establishment of crimes, penalties, and taxes, etc.). Regarding the cases where the constituent power explicitly imposes on the legislator the development of a specific matter or constitutional content, since they are incomplete precepts, two different cases can be distinguished. The first arises when expressly the legislator establishes that a law will regulate a specific matter, without indicating a deadline or term for its development, although, even in this case, it must be understood that it must occur within a reasonable time for the effective fulfillment of the mandate and design established by the constituent power, without prejudice, of course, to the faculty of the Asamblea Legislativa to weigh whether such development is politically opportune or convenient at a given time. The second case occurs when the constituent power, in addition to mandating the enactment of a law, sets a deadline for the legislator for the development and implementation of a constitutional content, a situation that, in our constitutional system, has basically arisen regarding certain partial reforms to the Constitution, in response to which the derived constituent power understands that they must be implemented and complemented legislatively within a specific period, deeming that there is a certain urgency and promptness, or, if you will, urgency in their execution. In this latter case where the amending power sets a specific deadline for the legislator, a sort of self-limitation arises regarding the time available to process and enact the respective law, since it is the legislative body itself, acting as the amending power, that restricts or limits the time of that collegiate body and its bodies –committees–, acting as ordinary legislator, to process and enact the implementing law. This self-restriction, regarding the time to substantiate the legislative procedure, imposes on the Asamblea Legislativa a greater and more pronounced responsibility and commitment to process and enact the respective law, since it is that very branch of government, albeit acting in materially or substantially different functions, that self-consents to the temporal restriction, aware of the volume of matters being processed or in the legislative pipeline, the times of legislative procedures, and the capacity, limits, and scope of work of the committees and the plenary. It is worth noting that, absolutely in all the aforementioned cases, the legislator retains full discretion or freedom to configure the content of the respective law, the only limit to this being the constitutional parameter itself or the Law of the Constitution.'\n\nBy virtue of the foregoing, the Chamber has sought to ensure that the technical figure of unconstitutionality by omission is not distorted, through arguments through which, on some occasions, the petitioners seek the modification of certain legislative texts in favor of their interests. Evidently, that a text has a specific content and omits another is a simple hermeneutic generality, which only in the specific cases that this Tribunal has defined in its jurisprudence on the matter, comes to constitute the case of unconstitutionality by omission.\"\n\nLikewise, the Chamber resolved in judgment no. 2019009724 of 12:23 p.m. on May 29, 2019:\n\n\"IV.- On unconstitutionality by omission. The Sala Constitucional has indicated that the Law of the Constitution can be infringed by action or by omission. Subsection a) of Article 73 of the Ley de Jurisdicción Constitucional indicates that the action of unconstitutionality may be filed against laws and other general provisions, even those originating from acts of private subjects, that infringe, by action or omission, any constitutional norm or principle. Subsection b), for its part, provides that an action may be filed against subjective acts of public authorities, when they infringe, by action or omission, any constitutional norm or principle, if they are not susceptible to habeas corpus or amparo remedies. Finally, subsection f) of this same norm refers that the action of unconstitutionality may be filed against the inertia, omissions, and abstentions of public authorities. In accordance with such norms, it is valid to affirm that through an action or consultation of constitutionality, a problem of unconstitutionality by omission can legitimately be raised. However, not every normative omission can be challenged before the constitutional jurisdiction. In the case of laws and other provisions of general scope, the Chamber has reiterated that the omissions that can be challenged in this forum are only those that arise when confronted with a duty or obligation directly and expressly provided for in the Law of the Constitution, or when it involves an implicit norm that entails discrimination against a subject – see, among others, judgments numbers 2015-17330 and 2016-5915-. Likewise, it has been held that the admissibility of an action of unconstitutionality by omission requires demonstrating that the Constitución Política requires, for the full enforceability of its precepts, an action by the Legislative Branch with a specific content -judgment number 2016-6327-.\"\n\nSimilarly, this Tribunal held in resolution no. 2018017681 of 9:40 a.m. on October 24, 2018:\n\n\"III.- ON UNCONSTITUTIONALITY BY OMISSION. In relation to Articles 371 and 377 of the Código de Trabajo, it is clear that the petitioner's claim is that the omission which, in his view, both norms contain, be declared unconstitutional. In judgment No. 2005-05649 of 2:39 p.m. on May 11, 2005, the Chamber defined the most relevant features of this type of unconstitutionality, provided for in Article 73, subsections a) and f), of the Ley de la Jurisdicción Constitucional:\n\n'The Law of the Constitution, that is, the set of constitutional principles, values, and precepts contained in the Magna Carta, can be infringed by public authorities and private individuals through active or omissive conduct. In the specific case of the Asamblea Legislativa, that branch of government breaches the constitutionality block by action when it enacts unconstitutional laws or when, during the legislative procedure for their enactment, it incurs substantial defects of such magnitude that warrant their annulment. The Asamblea Legislativa infringes by omission the constitutionality parameter when, faced with an express or tacit mandate from the original constituent power or the amending power to enact a law developing a constitutional content or clause, it fails to do so –absolute omission– or when, despite having enacted a law, it is discriminatory, by omission, by not regulating the situation of a specific sector or group of the population or the potential addressees it should have included or covered –relative omission–. In both cases, this Constitutional Tribunal has sufficient competence and express normative authorization to exercise constitutionality review and declare a possible unconstitutionality of the omissive conduct.'\n\nIt is specified there that this is a specific type of unconstitutionality, to which just any figure clothed in an omissive form cannot be redirected, as was also evidenced by the Chamber's resolution No. 2010-8600 of 3:08 p.m. on May 12, 2010:\n\n'Although this Constitutional Tribunal is empowered to act as a negative legislator, with the power to annul from the legal system all norms it considers unconstitutional, the truth is that it is prevented from acting as a positive legislator creating norms. On the other hand, even though this Chamber is competent to hear legislative omissions as established in Article 73 of the Ley de la Jurisdicción Constitucional, it is important to clarify that not every normative omission can be challenged through this route. In this sense, only those omissions that arise as a consequence of an express and direct mandate contained in the Constitución Política can be subject to constitutionality review through this action. However, in the specific case, the claimant complains that the norms do not indicate the procedure for the designation of workers' representatives in the event of a collective conflict, but the omission challenged by the plaintiff does not stem from an express mandate of the constituent power; rather, it is an omission that the plaintiff claims to find in the text of the article, without the duty to legislate in the manner explained by the claimant deriving from the Constitución Política. Likewise, as this is a Tribunal that acts as a negative legislator, it is clear that a potential favorable judgment, with the consequent elimination of the norm, would not remedy the omission indicated by the petitioner, so the action filed in those terms lacks utility and is therefore manifestly inadmissible. As in this case, what is challenged is not the text of the norms itself, but what –in the claimant's opinion– they omit, this Tribunal cannot rule with the aim of supplanting the competencies of other bodies or branches of government. Under such circumstances, the action is inadmissible regarding this point.'\n\nThus, the Chamber has sought to ensure that the technical figure of unconstitutionality by omission is not distorted, through arguments by means of which what is sought is the modification of certain legislative texts in favor of specific interests. Evidently, that a text has a specific content and omits another is a simple hermeneutic generality, which only in the specific cases defined by the Chamber since judgment No. 2005-5649, comes to constitute the case of unconstitutionality by omission. That is, only when the void implies the infringement of an express constitutional mandate, is it possible to exercise the review in question. The admissibility of an action of unconstitutionality by omission requires demonstrating that the Constitution demands, for the full enforceability of its precepts, an action by the Legislative or Executive Branch, with a specific content.\"\n\nPrecisely, in the sub lite case, the plaintiffs explicitly allege an unconstitutionality by omission of numerals 5, 6, 11, 14, 17, 19, and 26 of Title IV of law no. 9635 in relation to articles 84 and 85 of the Ley Fundamental. For the purposes of resolving this point, one must start from the positive legal content of such provisions, to whose literal wording reference is made:\n\n\"ARTICLE 84.- The University of Costa Rica is an institution of higher culture that enjoys independence for the performance of its functions and full legal capacity to acquire rights and contract obligations, as well as to give itself its own organization and governance. The other state university higher education institutions shall have the same functional independence and equal legal capacity as the University of Costa Rica.\n\nThe State shall provide them with their own patrimony and shall collaborate in their financing.\n\n(As amended by the sole article of law No. 5697 of June 9, 1975)\n\nARTICLE 85.- The State shall provide the University of Costa Rica, the Instituto Tecnológico de Costa Rica, the Universidad Nacional, and the Universidad Estatal a Distancia with their own patrimony and shall create their own revenues, independently of those originating from these institutions.\n\nFurthermore, it shall maintain –with current revenues and others that may be necessary– a special fund for the financing of State Higher Education. The Banco Central de Costa Rica shall administer this fund and, each month, shall place it in twelfths, to the order of the aforementioned institutions, according to the distribution determined by the body in charge of coordinating state university higher education.\"\n\nThe revenues of that special fund may not be abolished or reduced unless other improvements to replace them are simultaneously created.\n\nThe body responsible for the coordination of State University Higher Education shall prepare a national plan for this education, taking into account the guidelines established by the current National Development Plan.\n\nThat plan must be completed no later than June 30 of every fifth year and shall cover the immediately following five-year period. It shall include both the operating expenses and the investment expenses deemed necessary for the proper performance of the institutions mentioned in this article.\n\nThe Executive Branch shall include, in the ordinary expenditure budget of the Republic, the corresponding item, set out in the plan, adjusted according to the variation in the purchasing power of the currency.\n\nAny dispute that arises regarding the approval of the budgetary amount of the national plan for State Higher Education shall be resolved by the Legislative Assembly.\n\nTransitory Provision.- During the five-year period of 1981-1985, the distribution of the special fund referred to in this article shall be as follows: 59% for the University of Costa Rica; 11.5% for the Costa Rica Institute of Technology, 23.5% for the National University, and 6% for the State Distance University.\n\n(Thus amended by article 1 of law No. 6580 of May 18, 1981).\"\n\nNow, taking into consideration the allegations of the plaintiffs and the content of the transcribed provisions, no omission of an express and direct mandate (duty or obligation) contained in the Political Constitution for the enactment of laws is observed, nor is the development of any discriminatory situation to the detriment of specific sectors or groups of the population. Precisely, from a technical-legal standpoint, the acción de inconstitucionalidad is a process endowed with particular formalities, in which legal representation is indispensable and with respect to which the Chamber must limit itself to the points formulated concretely and in the specific manner in which the petitioners present them. Therefore, since in the sub lite the plaintiffs are alleging an unconstitutionality by omission, upon them falls the basic obligation to demonstrate that they are in one of the omission scenarios developed by the jurisprudence cited ut supra, since only in such specific cases is it legally plausible that a transgression such as that alleged by the plaintiffs could be configured.\n\nIn fact, in the filing brief, the unconstitutionality of seven provisions of Law No. 9635 is alleged by virtue of the application of the fiscal rule to the state universities and the FEES; however, based on the petition of the plaintiffs and the development that they themselves made in the action, the Chamber does not observe any unconstitutionality by omission concerning Articles 84 and 85 of the Political Constitution.\n\nConsequently, in the terms formulated by the plaintiffs themselves, any inertia on the part of the Legislative Assembly that could be declared an 'omission for unconstitutionality' through this action is ruled out, since the foregoing requires, as a sine qua non condition, that the existence of an express and direct positive legal mandate in the Fundamental Law be demonstrated, the breach of which would support the alleged omission, a point which the plaintiffs neglect in their argumentative development in the sub lite. A logical-legal derivation of the foregoing is that the request for sizing formulated by the plaintiffs is equally inadmissible.\n\nFinally, after the course of the action and the hearings granted, the legal representative of the plaintiffs appears to clarify and refute the criteria of the Procuraduría General de la República, the Contraloría General de la República, and the Ministerio de Hacienda; likewise, he develops additional arguments of unconstitutionality and reiterates that what is requested is that the unconstitutionality by omission be declared. However, such allegations do not form part of the object of the sub iudice, as they were raised at a procedural stage not provided for in the legal system for those purposes.\n\nX.- Different reasons of Judge Rueda Leal in relation to the alleged unconstitutionalities by omission. Of relevance for the analysis of the sub examine, I state several technical-legal aspects of the unconstitutionality by omission essential to enable a plausible constitutionality review in the matter.\n\nIn this regard, precisely, in the cases developed in the jurisprudence cited ut supra, unconstitutionalities by omission are presented; however, this type of injury to the constitutional order is not restricted to such scenarios, but also emerges when the legislative inaction itself violates the valid exercise of some fundamental right or undermines its protection. Not in vain, Article 2 of the American Convention on Human Rights imposes on the States the adoption of domestic law provisions to give effect to the rights and freedoms of that instrument. Similarly, for the sake of the true validity and full observance of fundamental rights, these must be instrumentalized through lower-ranking norms, as occurs with extraordinary frequency, which imposes an obligation on the legislator, the omission of which may be subject to constitutional review by this jurisdiction.\n\nNow, in the face of such scenarios, the plaintiff is responsible for developing in a reasonable manner the grounds for the unconstitutionality by omission that he seeks to have declared by the Chamber. On this point, it must be noted that the argumentative thread of an unconstitutionality by action is substantially different from one by omission: while the former is declared by virtue of the direct clash of a norm with the block of constitutionality, the latter finds its genesis in a legal gap, that is, in an inertia in the obligation to legislate in accordance with the Law of the Constitution that reaches such magnitude that it comes to lacerate the essential content of a fundamental right.\n\nIn the specific case, I precisely consider that the argumentation of the plaintiff is inconsistent with his claim of unconstitutionality by omission in the sub lite. Certainly, the petitioner reasons the unconstitutionality of the subjection of the FEES and the budgets of the state universities to the fiscal rule; however, instead of requesting the unconstitutionality of the legal norm that provides for such subjection (according to the argumentative line developed in the filing brief), what he does is request an unconstitutionality by omission in relation to a set of norms that apply to all entities and organs of the non-financial public sector; moreover, the plaintiff suggests the existence of a clear and evident unconstitutionality by omission.\n\nThe foregoing it does, however, without developing or explaining it as such; instead, it simply and plainly limits itself to mentioning it in a timely manner in very specific sections of its filing brief and in the prayer for relief.\n\nBased on the foregoing reasoning, I dismiss the action.\n\n**XI.- Documentation provided to the case file.** The parties are warned that if they have provided any document on paper, as well as objects or evidence contained in any additional device of an electronic, computer, magnetic, optical, telematic nature or produced by new technologies, these must be withdrawn from the office within a maximum period of 30 business days counted from the notification of this ruling. Otherwise, all material that is not withdrawn within this period will be destroyed, pursuant to the provisions of the \"Reglamento sobre Expediente Electrónico ante el Poder Judicial\", approved by the Corte Plena in session no. 27-11 of August 22, 2011, article XXVI, and published in the Boletín Judicial number 19 of January 26, 2012, as well as in the agreement approved by the Consejo Superior del Poder Judicial, in session no. 43-12 of May 3, 2012, article LXXXI.\n\n**Por tanto:**\n\nBy majority, the acción de inconstitucionalidad is dismissed, as an unconstitutionality by omission was not substantiated in the specific case. Magistrate Garro Vargas enters a note. Magistrate Rueda Leal gives different reasons regarding the alleged unconstitutionalities by omission. Magistrate Cruz Castro dissents and declares the acción de inconstitucionalidad with merit for direct and flagrant violation of university autonomy.\n\n\n\n**Fernando Castillo V.**\n**Presidente**\n\n\n\n**Fernando Cruz C.** **Paul Rueda L.**\n\n\n\n**Luis Fdo. Salazar A.** **Jorge Araya G.**\n\n\n\n**Anamari Garro V.** **José Roberto Garita N.**\n\n\n\n\nExp: 19-011540-0007-CO\n\nRes. n.°2022-023239\n\nNOTE OF MAGISTRATE GARRO VARGAS.\n\nIn the specific case, I have leaned toward dismissing the acción de inconstitucionalidad filed, accepting the considerations of the majority. However, I have deemed it necessary to enter a note to outline my position.\n\nFirstly, it is necessary to point out that the acción de inconstitucionalidad is a formal process. For example, since vote **n.°1996-0679** this Court warned the following:\n\n*“The Sala Constitucional is subject to the Constitution and to the Law, especially the law that governs it. In that sense, if the legislator wanted, in use of its discretionary powers, that the acción de inconstitucionalidad be a formalist remedy -contrary to the remedies of habeas corpus and amparo-, this instance cannot resolve against the express text of the law, to eliminate legal requirements, considered necessary by the legislator. Thus, if the petitioner did not comply with the indicated prevention, the processing of this action must be denied by legal imperative of article 80 of the Ley de la Jurisdicción Constitucional”.* (The highlighting does not correspond to the original).\n\nThus, the processes of constitutionality control are formal not only regarding admissibility aspects, but also in relation to the argumentation itself. On this specific aspect, article 78 of the Ley de la Jurisdicción Constitucional establishes that when filing the acción de inconstitucionalidad, the grounds shall be set forth in a clear and precise manner, with specific citation of the norms or principles that are considered infringed. In accordance with that provision, this Court has maintained a solid jurisprudential line to the effect that whoever promotes an acción de inconstitucionalidad has the burden of demonstrating how that provision infringes the Law of the Constitution and, additionally, must indicate why the claim should be upheld. For example, since judgment **n.°2016-000341** this Court has textually warned the following:\n\n*“I.- ON THE DISMISSAL OF THE ACTION, DUE TO THE OMISSION OF THE PETITIONING PARTY TO SUPPORT OR EXPLAIN THE REASONS WHY IT CONSIDERS THE CHALLENGED NORM UNCONSTITUTIONAL. The Ley de la Jurisdicción Constitucional, in its article 3, provides that “The Constitución Política shall be deemed infringed when that results from the comparison of the text of the questioned norm or act, its effects, or its interpretation or application by public authorities, with the constitutional norms and principles”.*\n\nNow, for this Court to consider the violation established and to be able to declare the unconstitutionality of the challenged rule or act, with the consequent annulment and expulsion from the legal system, whoever brings an action of unconstitutionality has the burden of demonstrating how that provision infringes the Law of the Constitution and, furthermore, must indicate why the claim should be upheld. This is referred to by this Chamber as the burden of argumentation, that is, that “a rule that facially (sic) is contrary to the Constitution shifts the burden of argumentation to those who maintain that in reality there is no conflict between that rule and the Political Constitution; the opposite occurs if an action is brought against a rule that upon first examination does not appear contrary to the Constitution, in which case it is the plaintiff who must advance arguments convincing of the unconstitutionality” (see judgment No. 0184-95 of 4:30 p.m. on January 10, 1995).” (The emphasis does not correspond to the original. Considerations that have been reiterated by the Chamber, at least, in judgments numbers 2017-003591, 2018-006098 and 2019-008101).\n\nConsequently, the argumentative burden runs on the part of the plaintiff and it is not for this Chamber to fill such omissions. The logic and scope of the conduct of the judicial body are governed by principles distinct from those applied in proceedings for jurisdictional guarantees of fundamental rights (amparo remedies and habeas corpus remedies), which are summary and informal. In these, the aim is to protect the fundamental rights of specific persons; in constitutional review proceedings, the aim is to verify whether the challenged rule must be expelled from the legal system, thus protecting –in the first instance– its purity, as a condition of the legal solidity of the Rule of Law. Since what the plaintiff seeks is not a trivial matter, but precisely the declaration of unconstitutionality of a rule, it is understood why the proceeding is formal both in the admission phase and in the substantive examination stage, when analyzing the plaintiff's allegations on the merits.\n\nIn the specific case, it was argued that there was an unconstitutionality by omission. The Chamber previously noted that the concept used does not coincide with what, according to its reiterated case law, it understands as such. Therefore, without ruling on whether or not the application of the fiscal rule is appropriate in the case of public universities, it considered that the action should be dismissed.\n\n**Anamari Garro V.**\n**Magistrate**\n\n**Exp. 19-011540**\n\n**Dissenting vote of Magistrate Cruz C. The budgetary independence of the Universities: fundamental principle of constitutional autonomies.**\n\nUnlike the majority opinion, I consider that this action should be upheld due to the direct and flagrant violation of the challenged rules against university autonomy, as I indicate below.\n\nThe majority considers in this vote that there is no unconstitutionality because unconstitutionality by omission was not proven. Certainly, the plaintiff in their petition, instead of requesting the unconstitutionality of the legal rule that provides for such subjection, requests an unconstitutionality by omission in relation to a set of rules that apply to all entities and bodies of the non-financial public sector. However, from their line of argument, it is understood that the unconstitutionality they request is that of the subjection to the fiscal rule of both the FEES and the budgets of the state universities. I consider that this Chamber cannot fall into such extreme formalisms when the unconstitutionality is evident, as in this case. The unconstitutionality is evident, whether by action or by omission. Furthermore, the non-compliance with constitutional mandates regarding the financing of universities has become a repeated practice. In its trajectory, the Chamber has demonstrated a propensity towards substantive interpretations, avoiding literal or formal interpretations, especially in the face of an evident injury to university autonomy.\n\nArticles 5, 6, 11, 14, 17, 19 and 26 of Title IV of Law No. 9635 of December 3, 2018, called “Ley de Fortalecimiento de las Finanzas Públicas,” are unconstitutional for including and subjecting public universities to the fiscal rule, which constitutes a direct and flagrant violation of university autonomy.\n\nNote that the plaintiffs develop arguments around university autonomy, the FEES, and the constitutional articles that regulate them. Thus, the unconstitutionality is both by action and by omission. The foregoing for three main reasons:\n\n- From constitutional articles 84 and 85, it is derived that university autonomy of public universities is protected, which implies an obligation for the State, including the Legislative Branch, preventing positive actions (issuing rules that violate the scope of this autonomy) as well as failing to issue them (omitting to issue rules that violate said autonomy).\n- The fiscal rule is a rule of legal and not constitutional rank. We have not had a constitutional reform in our country in this regard to grant such a rule a supra-legal character that it does not possess, nor above other fundamental rights. The principle of budgetary balance, contained in constitutional article 176, does not encompass the fiscal rule, which is a later and recent creation with a legal character. In the prevailing political times, and without much discussion, such a restriction may well be imposed, because the most important thing in the situation we are living through seems to be the balance of the meager public finances. “Fiscalism” is gaining ground and imposes itself, unfortunately, over social and individual rights.\n- The special fund for the financing of state higher education enjoys special constitutional protection that cannot be conditioned by a legal rule that goes against university autonomy. It is a serious transgression that meets few objections from the political system. Despite what the Constitution and the interventions of the members of the Constituent Assembly establish, the letter and the spirit of the Constitution are ignored by the political instances governing from the Parliament and the Executive Branch.\n\nThe Constituent Assembly enshrined in the Political Constitution that the public university, as a center of free thought, must and has to be exempt from pressures or measures of any nature that tend to prevent it from fulfilling, or that threaten, its great mission (see Judgment No. 1993-1313 of 1:54 p.m. on March 26, 1993, and No. 2016-002419 of 11:31 a.m. on February 17, 2016), so that the Constituent Assembly did not want either the Executive Branch or the Legislative Branch to use budgets as a mechanism to influence, pressure, or manipulate public universities.\nFurthermore, as I have already stated, I consider that the fiscal rule finds no constitutional support, but is a legal rule that cannot prevail over constitutional articles 84 and 85.\nRegarding the scope of university autonomy, one should recall what the case law of this Chamber has indicated (see vote No. 2021-017098). According to Constitutional Article 84 (“ARTICLE 84.- The University of Costa Rica is an institution of higher culture that enjoys independence for the performance of its functions and full legal capacity to acquire rights and contract obligations, as well as to establish its own organization and government. The other state institutions of higher university education shall have the same functional independence and equal legal capacity as the University of Costa Rica. // The State shall endow them with their own heritage and shall collaborate in their financing.\") public universities or state universities enjoy a special degree of autonomy, which can be called university autonomy. According to constitutional case law, such autonomy encompasses administrative, political, financial, and organizational autonomy. Therefore, public universities possess all the administrative faculties and powers to carry out their mission. Thus, they can self-determine, in the sense that they are empowered to establish their plans, programs, budgets, internal organization, and structure their own government, all within the limits established by the Political Constitution itself and the special laws that regulate their organization and operation (see vote No. 2012-011473). The Political Constitution provides that universities enjoy independence for the performance of their functions and full legal capacity to acquire rights and contract obligations, as well as to establish their own organization and government. The jurisprudential line of the Chamber has been clear in establishing that public universities have the highest degree of autonomy, which is self-organizational autonomy or full autonomy. That autonomy, which has been classified as special, is complete and, therefore, distinct from that of the rest of the decentralized entities of our legal system (regulated mainly in another part of the Political Charter: articles 188 and 190), and means that they are outside the direction of the Executive Branch and its hierarchy, that they possess all the administrative faculties and powers necessary to carry forward the special purpose legitimately entrusted to them. They can self-determine, in the sense that they are enabled to establish their own plans, programs, budgets, internal organization, and structure their government. Furthermore, public universities have regulatory power (autonomous and executive); they can self-structure, distribute their competencies within the internal sphere of the entity, deconcentrate to the extent legally possible and lawful, regulate the service they provide, and freely decide on their personnel. All these are powers of the administrative, political, organizational, and financial modalities of the autonomy that corresponds to public universities. The main purpose of university autonomy is to provide the entity with all the necessary legal conditions for it to carry out its mission of higher culture and education independently. (see judgment No. 1992-495, No. 1993-1313, No. 2002-8867 and No. 2008-013091). This is clear from the words of the Constituent Assembly member Fernando Baudrit when he said:\n\n“What we are pursuing is to avoid for the University the threat of future Congresses moved by partisan political interests ... Tomorrow, if the University does not adapt to the prevailing political environment, a Congress, with the purpose of liquidating it, could do so easily by reducing the State subsidy. I have already said that if we were not living under the current regime, the University would have disappeared, or else would have become a docile dependency of the Executive Branch. There was already scheming, in this very chamber, and by the last Congress, in that direction. They were even shuffling the names of the people who would replace us in the direction of the University. Who assures us that in the future a similar situation could not arise? Precisely to prevent this from happening. It is necessary, indispensable, to endow the University of Costa Rica with genuine administrative, teaching, and economic independence.” (Record 160, 4/X/1949, volume III, p.395.).”\n\nThis autonomy is intimately related to the freedom of teaching of universities and to universities being crucibles (the setting for the fusion of very diverse ideas) for the creation of thought, criticism, and the construction of knowledge. A basic function in any democratic society. Thus, the autonomy of public universities protects them from the Executive Branch and the rest of the Public Administration; but also against the law, to prevent the legislator from delegating to administrative authorities powers capable of imposing on universities decisions regarding the scope of their competencies, such as the regulation of courses, social action, research, entrance examinations, conferring university academic degrees, among others, as this Chamber has repeatedly stated in judgments No. 1993-1313 and No. 1996-276.\nUniversity autonomy is necessary for the institution to fulfill its objectives, which would run the risk of being hindered if the intrusion of the Executive and Legislative Branches is permitted. This Chamber has warned that public universities are not simple teaching institutions, but have higher purposes, committed to the development of the country in general and of Costa Ricans in particular. Specifically, it stated: (…) The main purpose of university autonomy is to provide the entity with all the necessary legal conditions for it to carry out its mission of higher culture and education independently. In that sense, the University is not a simple institution of teaching (…), since it corresponds to the complex function, integral to its nature, of carrying out and deepening scientific research, cultivating the arts and letters in their maximum expression, analyzing and criticizing, with objectivity, elevated knowledge and rationality, the social, cultural, political and economic reality of its people and the world, proposing solutions to the great problems and therefore, in the case of underdeveloped or developing countries like ours, serving as a driving force for ideas and actions to achieve development on all levels (spiritual, scientific and material), contributing through that work to the effective realization of the fundamental values of Costa Rican identity, which can be summarized … in those of democracy, the Social Rule of Law, the essential dignity of the human being and the ‘system of freedom,’ in addition to peace (article 12 of the Political Constitution) and Justice (41 ibid.); in synthesis … that the University, as a center of free thought, must and has to be exempt from pressures or measures of any nature that tend to prevent it from fulfilling, or that threaten, that its great mission (…)” (judgment No. 2008-013091)\n\nThe Constitutional Chamber, when analyzing the issue of university autonomy, has defined very specific aspects that affect the materialization of said autonomy, such as that related to the salary of university officials. Thus, in judgment No. 2015-10248, it addresses the issue of salary in the following terms: “…the university autonomy that assists public higher education centers (provided for with constitutional rank) extends so that these –through their highest hierarchical bodies– establish the manner in which they will resolve the remuneration regime for their employees ‘…always attending to elementary constitutional principles that govern the entire public apparatus, such as reasonableness and proportionality, as well as the adequate safeguarding of public finances (…).” However, in the exercise of its autonomy, UNED has the possibility of recognizing, in a differentiated manner, the payment of annuities for people coming from work outside that institution, given that the specificity of university dynamics and its administration justifies a different valuation between the annuity from another public agency and that developed properly within the university. Thus, it is reasonable that time served within the organizational structure of UNED is recognized with a higher salary supplement than that worked in other public agencies.”\n\nFurthermore, Constitutional Articles 84 and 85 protect the income of the FEES in the sense that these may not be abolished or diminished without creating others to substitute them, as well as that the intention of the derived legislator with the constitutional reform to Constitutional Article 78, which raised to 8% of the Gross Domestic Product (GDP) the amount of the national budget destined for the financing of education –including public higher education– was to improve and strengthen public education through greater public investment, in order to enhance the exercise of the fundamental right to education, which constitutes an essential element for the social and economic development of individuals (see Judgment No. 2019-024746 of 10:30 a.m. on December 12, 2019).\n\nThus, it is clear then that the Fondo Especial para el Financiamiento de la Educación Superior enjoys constitutional rank; and, therefore, special protection due to its nature and the purposes for which it was created. What was sought to guarantee was the effective constitutional autonomy of the financing of public higher education entities, without establishing a fixed percentage of the national budget for that purpose, but so that, at the same time, with the delivery of those resources each year, it would be possible to protect the autonomy and independence of public universities, all directed at a final objective, which is the effective exercise of the population's right to education. The institutions that cultivate knowledge and research require a protective jurisdiction that guarantees a reasonable distance from the political tempests that inevitably afflict the Executive Branch and Parliament. Knowledge and the objectivity of research cannot fall under the control of those who exercise power in the Administration or Parliament every four years. Those political tempests, at times so passionate and overflowing, cannot reach an activity as important as that of the Universities. That is the spirit of the constitutional rules I am commenting on. It is a singular autonomy of our Constitution, which responds to the historical-political experiences of the decade of the forties of the last century.\n\nThe Constituent Assembly concentrated on shielding the state resources that would finance higher education from external political influences and pressures, in such a way that the independence and autonomy of public universities would be guaranteed, since they did not want the Executive Branch or the Legislative Branch to use budgets as mechanisms to influence, pressure, or manipulate the universities, to the point that subsequently, through a constitutional reform in 1981, the amendment right of the budgetary legislator was drastically limited, by establishing their intervention exclusively for the moment when no agreement exists between the Executive Branch and the Consejo Nacional de Rectores (CONARE). See vote No. 2022-017987. All these lessons on checks and balances have been gradually forgotten, and the interest in influencing the Universities grows, despite what the Constitution and the express will of the constituent assembly members indicate.\n\nThis trend can be seen in the fiscal rule (regla fiscal), because it would be limiting what Article 85 of the Constitution establishes, regarding the protection of higher education.\n\nIt should be recalled that this Constitutional Court has indicated that the right to education is not only conceived as a right of citizens, but also as a public service, as a positive provision provided to the inhabitants of the Republic by public administrations and, as such, is subject to continuity, regularity, efficiency, effectiveness, equality, and universality, so that, as part of that efficiency, it is logical to think that all the conglomerate of economic resources it has —FEES and those from other sources—, be channeled toward its fulfillment, thereby allowing the expansion of the educational offering, acquisition of more technology, improvement of staff hiring, increase in the number of spaces available for first admission to different degree programs, expansion of extension and social action programs, generation of more sectors in which remunerated services can be provided, extension of scholarship programs for people with limited resources, among others, without ever losing sight that the state university does not have a profit motive but does have an interest in improving its offering for the benefit of the student body and the community. Without ignoring that the University also has a mission in research and social action. From a fundamental rights approach, this Court could not separate the resources obtained by the state university from the very special function granted to it by Articles 84 and 85 of the Constitution. It is not a simple teaching institution—teaching, research, and extension—but rather a complex function, an integral part of its nature to carry out and deepen scientific research, cultivate the arts and letters in their highest expression, analyze and criticize, with objectivity, elevated knowledge and rationality, the social, cultural, political, and economic reality of its people and the world, propose solutions to the great problems and serve as a driving force for ideas and actions to achieve development at all levels (spiritual, scientific, and material), contributing with this work to the effective realization of the fundamental values of the Costa Rican identity, which can be summarized as those of democracy, the Social State of Law, the essential dignity of the human being and the system of freedom, in addition to peace (Article 12 of the Political Constitution), and Justice (Article 41 idem) (see judgment No. 1313-93 of 13 hours 54 minutes of March 26, 1993).\n\nNote the seriousness of what the challenged norms establish, subjecting public universities to the fiscal rule (regla fiscal) (Art. 5), not excluding them from its application (Art. 6), establishing debt ranges for the growth of current expenditure (gasto corriente) (Art. 11), that the Ministry of Finance will issue a communication and guidelines for budget formulation (Art. 14), establishing the destination of surpluses (superávit) (Art. 17), compliance with the fiscal rule (regla fiscal) in the formulation and budgeting stage (Art. 19), and sanctions for non-compliance with the fiscal rule (regla fiscal) (Art. 26). The fiscal rule (regla fiscal) becoming an imposition, it is a submission to a kind of “straitjacket” for the State Universities regarding what the central government decides in this regard, and furthermore, to the detriment of their autonomy and the high purposes and tasks granted to them.\n\nHighlighted from this is what the Office of the Attorney General (Procuraduría General de la República) itself indicated in its report, when it states, regarding Art. 17, that free surplus (superávit libre) is not even applicable to the FEES, because this fund is made up of resources with a specific purpose determined by the Political Constitution. These are tied, unavailable funds, consequently, for the ordinary legislator and the budget legislator. The special fund for the financing of state higher education possesses the characteristic that its resources have a specific purpose assigned by the Political Constitution, specifically, to finance state higher education. From this perspective, these “tied” funds (vote No. 5754-94), cannot be allocated to any purpose other than that which has been set by the Fundamental Charter. For the foregoing reasons, Article 17 of the Public Finance Strengthening Law cannot encompass the FEES resources due to their specific and non-free purpose, so it can never be understood that the FEES is included within the scope of the challenged Art. 17.\n\nFurthermore, regarding the challenged Article 19, in the same sense indicated by the Office of the Attorney General (Procuraduría General de la República), the Budgetary Authority could in no way substitute the Public Universities in their competence to prepare or reformulate their budget.\n\nFor all the foregoing reasons, I consider that Articles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. 9635 of December 3, 2018, called “Public Finance Strengthening Law,” are unconstitutional for including and subjecting public universities to the fiscal rule (regla fiscal), which entails a direct and flagrant violation of university autonomy, in the terms indicated.\n\nA separate comment is warranted regarding the practical irrelevance of a decision from this Constitutional instance, because the budget was already executed contrary to what the Constitution states. The decision, even if it had been favorable, has very little practical relevance. There are many ways to evade the Constitutional mandate, despite oaths and promises. This trend that ignores the mandate of the fundamental constitutional pact is reiterated in almost all budgets, and despite the fact that the unconstitutionality may be declared with merit, the decision has little practical relevance. The Constitution and its mandates can be weakened or repealed by repeated political practices that contradict the ideological foundation and the very text of the Constitution. Respect for the Constitution must be a priority for those who exercise the Executive Branch and Parliament; it is not solely the competence of an instance with as much political weakness as the Constitutional Court.\n\n\n\n\n\nFernando Cruz C.\n\nMagistrado\n\nExp: 19-011540-0007-CO\n\nARTICLE 83 OF THE LAW OF CONSTITUTIONAL JURISDICTION. “…Article 83 of the Law of Constitutional Jurisdiction establishes that within 15 days following the first publication of the edict contemplated in the second paragraph of article 81 of the same law, the parties appearing in matters pending as of the date the action was filed or those with a legitimate interest may appear in order to assist in the allegations that might justify its appropriateness or inappropriateness, or to expand, as applicable, the grounds for unconstitutionality in relation to the matter of interest to them…” CO07/23\n\nARTICLE 75 OF THE LAW OF CONSTITUTIONAL JURISDICTION. “…In this regard, the plaintiffs explicitly state that their standing (legitimación) derives directly from paragraph 2 of article 75 of the Law of Constitutional Jurisdiction, since there is no individual and direct harm. They maintain that the proceeding is brought in defense of diffuse interests that concern the community as a whole, and therefore it is not possible to obtain instances of singular application. They argue that, in budgetary matters, there are no appealable acts, which makes it impossible to challenge and eventually form a prior administrative case file (expediente administrativo previo) in which the unconstitutionality could be claimed. They note that the defense of diffuse interests relates to the financing of the fundamental right to state university higher education and control over the management of public funds.\nBased on the foregoing, the Presidency of the Chamber, in the ruling of 8:35 a.m. on July 5, 2019, admitted this action, ordering: “The standing (legitimación) of the plaintiffs derives from article 75, paragraph 2, of the Law of Constitutional Jurisdiction, insofar as they appear in defense of diffuse interests safeguarding the public funds that must be allocated to financing state higher education and the fundamental right to education.” This reasoning is shared by the plenary of this Court, since the arguments mentioned relate to the right to education and the public funds assigned to state universities, which constitutional case law has characterized as suitable to support standing (legitimación) through the protection of diffuse interests (for instance, see judgment no. 2019008620 of 9:20 a.m. on May 15, 2019). Ergo, it is confirmed that the action is admissible…” CO07/23\n\nX.- Different reasons of Magistrate Rueda Leal in relation to the alleged unconstitutionalities by omission. Of relevance for the analysis of the sub examine, I specify several technical-legal aspects of the unconstitutionality by omission that are essential to enable a plausible constitutional review on the matter.\n\nIn this regard, precisely, in the cases developed in the case law cited ut supra, unconstitutionalities by omission are presented; however, this type of harm to the constitutional order is not restricted to such situations, but also emerges when legislative inaction itself violates the valid exercise of a fundamental right or undermines its protection. Not in vain, Article 2 of the American Convention on Human Rights imposes on the States the adoption of domestic law provisions to give effect to the rights and freedoms of that instrument. Similarly, for the sake of the real validity and full enjoyment of fundamental rights, these must be implemented through lower-ranking norms, as occurs with extraordinary frequency, which imposes an obligation on the legislator, the omission of which may be subject to constitutional review by this jurisdiction.\n\nNow, in such situations, the plaintiff is responsible for reasonably developing the grounds for the unconstitutionality by omission that they seek to have declared by the Chamber. On this point, it should be noted that the argumentative thread of an unconstitutionality by action is substantially different from one by omission: while the former is declared by virtue of a direct conflict between a norm and the block of constitutionality, the latter finds its genesis in a legal gap, that is, in an inertia regarding the obligation to legislate in accordance with the Law of the Constitution that reaches such magnitude that it lacerates the essential content of a fundamental right.\n\nIn this specific case, I precisely consider that the plaintiff's argumentation is incoherent with their claim of unconstitutionality by omission in the sub lite. Certainly, the appellant reasons the unconstitutionality of the subjection to the fiscal rule of both the FEES and the budgets of the state universities; however, instead of requesting the unconstitutionality of the legal norm that establishes such subjection (according to the line of argument developed in the filing brief), what they do is request an unconstitutionality by omission in relation to a set of norms that apply to all entities and bodies of the non-financial public sector; moreover, the plaintiff suggests the existence of a clear and evident unconstitutionality by omission. They do the foregoing, however, without developing or explaining it as such; instead, they simply and plainly limit themselves to mentioning it punctually in very specific sections of their filing brief and in the petition.\n\nBased on the aforementioned reasoning, I declare the action without merit. CO07/23\n\nExp: 19-011540-0007-CO\n\nRes. No. 2022-023239\n\nNOTE OF MAGISTRATE GARRO VARGAS.\n\nIn this specific case, I have been inclined to declare the filed unconstitutionality action without merit, accepting the considerations of the majority. However, I have deemed it necessary to record a note to outline my position.\n\nIn the first place, it is necessary to point out that the unconstitutionality action is a formal proceeding. For example, since ruling No. 1996-0679, this Court has warned of the following:\n\n“The Constitutional Chamber is subject to the Constitution and the Law, especially the law that governs it. In that sense, if the legislator intended, in the use of its discretionary powers, for the unconstitutionality action to be a formalistic remedy –contrary to the remedies of habeas corpus and amparo–, this instance cannot rule against the express text of the law to eliminate legal requirements considered necessary by the legislator. Thus, if the plaintiff did not comply with the indicated order to cure, the processing of this action must be denied by legal imperative of Article 80 of the Law of Constitutional Jurisdiction.” (The highlighting does not correspond to the original).\n\nIn this way, constitutional review proceedings are formal not only regarding admissibility aspects, but also in relation to the argumentation itself. On this specific aspect, Article 78 of the Law of Constitutional Jurisdiction establishes that when filing the unconstitutionality action, the grounds must be set forth clearly and precisely, with specific citation of the norms or principles considered infringed. In accordance with that provision, this Court has maintained a solid line of case law to the effect that whoever brings an unconstitutionality action has the burden of demonstrating how that provision infringes the Law of the Constitution and, in addition, must indicate why the claim should be upheld. For example, since judgment No. 2016-000341, this Court has textually warned of the following:\n\n“I.- REGARDING THE INADMISSIBILITY OF THE ACTION, DUE TO THE PLAINTIFF'S OMISSION TO SUPPORT OR EXPLAIN THE REASONS WHY THEY CONSIDER THE CHALLENGED NORM TO BE UNCONSTITUTIONAL. The Law of Constitutional Jurisdiction, in its Article 3, provides that ‘The Political Constitution shall be deemed infringed when this results from the confrontation of the text of the questioned norm or act, its effects, or its interpretation or application by public authorities, with the constitutional norms and principles.’ Now then, for this Court to deem the infringement established and be able to declare the unconstitutionality of the challenged norm or act, with the consequent annulment and expulsion from the legal system, whoever brings an unconstitutionality action has the burden of demonstrating how that provision infringes the Law of the Constitution and, in addition, must indicate why the claim should be upheld. This is termed by this Chamber as the burden of argumentation, that is, that ‘a norm that facially (sic) is contrary to the Constitution, shifts the burden of argumentation to those who maintain that in reality there is no conflict between that norm and the Political Constitution; the opposite occurs if action is taken against a norm that upon first examination does not appear contrary to the Constitution, in which case it is the plaintiff who must advance arguments that persuade about the unconstitutionality’ (see judgment No. 0184-95 of 4:30 p.m. on January 10, 1995).” (The highlighting does not correspond to the original. Considerations that have been reiterated by the Chamber, at least, in judgments numbers 2017-003591, 2018-006098, and 2019-008101).\n\nConsequently, the argumentative burden lies with the plaintiff, and it does not fall to this Chamber to remedy such omissions. The logic and scope of the jurisdictional body's conduct are governed by principles distinct from those applied in proceedings for jurisdictional guarantees of fundamental rights (amparo remedies and habeas corpus remedies), which are summary and informal. In those, the aim is to protect the fundamental rights of specific persons; in constitutional review proceedings, the aim is to verify whether the challenged norm must be expelled from the legal system, thus protecting –in the first instance– its purity, as a condition of the legal soundness of the Rule of Law.\n\nSince what the claimant seeks is not a trivial matter, but precisely the declaration of unconstitutionality of a norm, it is understood why the proceeding is formal both in the admission phase and in the merits phase, when analyzing the claimant's arguments on the substance.\n\nIn the specific case, it was argued that there was an unconstitutionality by omission. The Chamber previously noted that the concept used does not coincide with what, according to its reiterated case law, it understands as such. Therefore, without ruling on whether or not the application of the fiscal rule is appropriate in the case of public universities, it deemed that the action should be dismissed.\n\n**Anamari Garro V.**\n\n**Magistrate**\n\n**CO07/23**\n\n---\n\n**Exp. 19-011540**\n\n***Dissenting vote of Magistrate Cruz C. The budgetary independence of Universities: a fundamental principle of constitutional autonomies.***\n\nUnlike the majority opinion, I consider that this action must be granted due to the direct and flagrant violation of the contested norms against university autonomy, as I indicate below.\n\nThe majority considers in this vote that there is no unconstitutionality because unconstitutionality by omission was not proven. Indeed, the claimant in his petition, instead of requesting the unconstitutionality of the legal norm that mandates such subjection, actually requests an unconstitutionality by omission in relation to a set of norms that apply to all entities and bodies of the non-financial public sector. However, from his line of argument, it is understood that the unconstitutionality he requests is that of the subjection to the fiscal rule of both the FEES and the budgets of the state universities. I believe this Chamber cannot fall into such extreme formalities when the unconstitutionality is evident, as in this case. The unconstitutionality is evident, whether by action or by omission. Furthermore, the failure to comply with constitutional mandates regarding the financing of universities has become a repeated practice. In its trajectory, the Chamber has demonstrated a propensity toward substantive interpretations, avoiding literal or formal interpretations, especially in the face of an evident injury to university autonomy.\n\nArticles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. 9635 of December 3, 2018, called \"Ley de Fortalecimiento de las Finanzas Públicas,\" are unconstitutional for including and subjecting public universities to the fiscal rule, which entails a direct and flagrant violation of university autonomy.\n\nNote that the claimants develop arguments around university autonomy, the FEES, and the constitutional articles that regulate them. Thus, the unconstitutionality is both by action and by omission. The foregoing for three main reasons:\n\n- From Articles 84 and 85 of the Constitution, it is derived that it protects the university autonomy of public universities, which implies an obligation for the State, including the Legislative Branch, that prevents positive actions (issuing norms that violate the scope of this autonomy) as well as not issuing them (omitting to issue norms that violate said autonomy).\n\n- The fiscal rule is a norm with a legal and not constitutional character. We have not had in our country a constitutional reform in this regard to grant such a rule a supra-legal character that it does not have, nor, above the rest of the fundamental rights. The principle of budgetary balance, contained in Article 176 of the Constitution, does not encompass the fiscal rule, which is of later and recent creation and of a legal character. In the prevailing political times, and without much discussion, such a restriction will perhaps be imposed, because the most important thing in the situation we are living in seems to be the balance of the meager public finances. \"Fiscalism\" is taking up space and prevails, unfortunately, over social and individual rights.\n\n- The special fund for the financing of state higher education enjoys special constitutional protection, which cannot be conditioned by a legal norm that goes against university autonomy. It is a serious transgression that meets with few objections from the political system. Despite what the Constitution establishes and the interventions of the members of the Constituent Assembly, the letter and spirit of the Constitution are ignored by the political instances governing from Parliament and the Executive Branch.\n\nThe Constituent expressed in the Political Constitution that the public university, as a center of free thought, must and has to be exempt from pressures or measures of any nature that tend to prevent it from fulfilling, or that threaten its great mission (see Judgment No. 1993-1313 of 13:54 hours of March 26, 1993, and No. 2016-002419 of 11:31 hours of February 17, 2016), so that the Constituent members did not want the Executive Branch or the Legislative Branch to use budgets as a mechanism to influence, pressure, or manipulate public universities.\n\nFurthermore, as I have already stated, I believe that the fiscal rule does not find constitutional support, but rather is a legal norm that cannot prevail over Articles 84 and 85 of the Constitution.\n\nRegarding the scope of university autonomy, let us recall what the case law of this Chamber has indicated (see vote No. 2021-017098). According to Article 84 of the Constitution (\"ARTICLE 84.- The University of Costa Rica is an institution of higher culture that enjoys independence for the performance of its functions and full legal capacity to acquire rights and incur obligations, as well as to provide its own organization and government. The other state university institutions of higher education shall have the same functional independence and equal legal capacity as the University of Costa Rica. // The State shall endow them with their own patrimony and shall collaborate in their financing.\") public universities or state universities enjoy a special degree of autonomy, which can be called university autonomy. According to constitutional case law, such autonomy encompasses administrative, political, financial, and organizational autonomy. Therefore, public universities have all the administrative faculties and powers to carry out their mission. Thus, they can self-determine, in the sense that they are empowered to establish their plans, programs, budgets, internal organization, and structure their own government, all within the limits established by the Political Constitution itself and the special laws that regulate their organization and operation (see vote No. 2012-011473). The Political Constitution provides that universities enjoy independence for the performance of their functions and full legal capacity to acquire rights and incur obligations, as well as to provide their own organization and government. The Chamber's jurisprudential line has been clear in establishing that public universities have the highest degree of autonomy, which is self-organizational autonomy or full autonomy. That autonomy, which has been classified as special, is complete and therefore, distinct from that of the rest of the decentralized entities of our legal system (mainly regulated in another part of the Political Charter: Articles 188 and 190), and means that the former are outside the direction of the Executive Branch and its hierarchy, that they have all the administrative faculties and powers necessary to carry out the special purpose legitimately entrusted to them. They can self-determine, in the sense that they are enabled to establish their own plans, programs, budgets, internal organization, and structure their government. Furthermore, public universities have regulatory power (autonomous and of execution); they can self-structure, distribute their competencies within the internal sphere of the entity, deconcentrate to the extent legally possible and lawful, regulate the service they provide, and freely decide on their personnel. All these are powers of the administrative, political, organizational, and financial modalities of autonomy that correspond to public universities. The main purpose of university autonomy is to provide the entity with all the necessary legal conditions for it to independently carry out its mission of higher culture and education. (see judgments No. 1992-495, No. 1993-1313, No. 2002-8867, and No. 2008-013091). This is evident from the words of Constituent Member Fernando Baudrit when he said:\n\n\"What we are pursuing is to avoid for the University the threat of future Congresses moved by politicking interests... Tomorrow, if the University does not adapt to the prevailing political environment, a Congress, with the purpose of liquidating it, could easily achieve it by reducing the State subsidy. I already said that if we were not living under the current regime, the University would have disappeared, or it would have become a docile dependency of the Executive Branch. Already, in this very chamber, and by the last Congress, schemes were being plotted in that sense. The names of the persons who were going to replace us in the direction of the University were even being shuffled around. Who assures us that in the future a similar situation could not arise? Precisely to prevent this from possibly happening. It is necessary, indispensable, to endow the University of Costa Rica with genuine administrative, teaching, and economic independence.\" (Session 160, 4/X/1949, volume III, p. 395.).\"\n\nThis autonomy is intimately related to the academic freedom of the universities and to being, the universities, crucibles (a scenario for the fusion of very diverse ideas) for the creation of thought, criticism, and the construction of knowledge. A basic function in any democratic society. Thus, the autonomy of public universities protects them against the Executive Branch and the rest of the Public Administration; but also against the law, to prevent the legislator from delegating to administrative authorities powers capable of imposing on the universities decisions about the scope of their competencies, such as the regulation of courses, social action, research, entrance exam, conferring university academic degrees, among others, as this Chamber has repeatedly stated in judgments No. 1993-1313 and No. 1996-276.\n\nUniversity autonomy is necessary for the institution to fulfill its objectives, which would run the risk of being hindered if the intrusion of the Executive and Legislative Branches is allowed. This Chamber has warned that public universities are not simple teaching institutions, but rather have higher purposes, committed to the development of the country in general and of Costa Ricans in particular. Specifically, it stated: \"(…) The main purpose of university autonomy is to provide the entity with all the necessary legal conditions for it to independently carry out its mission of higher culture and education. In that sense, the University is not a simple teaching institution (…), since it corresponds to it the complex function, integral to its nature, of conducting and deepening scientific research, cultivating the arts and letters in their maximum expression, analyzing and criticizing, with high objectivity, knowledge, and rationality, the social, cultural, political, and economic reality of its people and the world, proposing solutions to the great problems, and therefore, in the case of underdeveloped or poorly developed countries like ours, serving as a driver of ideas and actions to achieve development at all levels (spiritual, scientific, and material), contributing with that work to the effective realization of the fundamental values of the Costa Rican identity, which can be summarized … in those of democracy, the Social State of Law, the essential dignity of the human being, and the 'system of freedom,' in addition to peace (Article 12 of the Political Constitution) and Justice (41 idem); in summary … that the University, as a center of free thought, must and has to be exempt from pressures or measures of any nature that tend to prevent it from fulfilling, or that threaten that great mission of its (…)\" (judgment No. 2008-013091)\n\nWhen analyzing the issue of university autonomy, the Constitutional Chamber has defined very specific aspects that affect the materialization of said autonomy, such as what is related to the salary of university employees. It is thus that in judgment No. 2015-10248 it addresses the topic of salary in the following terms: \"…the university autonomy that assists public higher education centers (established with constitutional rank) extends to allow them – through their highest hierarchical bodies – to establish the manner in which they will resolve the remunerative regime of their servants '…always attending to elementary constitutional principles that govern the entire public apparatus, such as reasonableness and proportionality, as well as the adequate protection of public finances (…).'\" However, in the exercise of its autonomy, the UNED has the possibility of differentially recognizing the payment of seniority annuities of persons coming from working outside that institution, since the specificity of the university dynamic and its administration justifies a diverse valuation between the annuities coming from another public agency and that developed properly within the university.\n\nThus, it is reasonable that time served within the organizational structure of UNED be recognized with a greater salary bonus than that worked in other public offices\".\n\nFurthermore, Articles 84 and 85 of the Constitution protect the revenues of the FEES in the sense that these may not be abolished or diminished without the creation of others to replace them, as well as that the intent of the derived legislator with the constitutional reform to Article 78 of the Constitution, which raised the amount of the national budget allocated to the financing of education—including public higher education—to 8% of the Gross Domestic Product (GDP), was to improve and strengthen public education through greater public investment, for the purpose of enhancing the exercise of the fundamental right to education, which constitutes an essential element for the social and economic development of individuals (see Judgment No. 2019-024746 of 10:30 a.m. on December 12, 2019).
\n\nIn this way, it is clear then that the Special Fund for the Financing of Higher Education (Fondo Especial para el Financiamiento de la Educación Superior) enjoys constitutional rank; and, therefore, special protection due to its nature and the purposes for which it was created. What was intended to be guaranteed was the effective constitutional autonomy of the financing of public higher education entities, without a fixed percentage of the national budget being established for that purpose, but that, at the same time, with the delivery of those resources each year, the autonomy and independence of public universities be protected, all directed toward a final objective which is the effective exercise of the population's right to education. The institutions that cultivate knowledge and research require a protective jurisdiction that guarantees a reasonable distance from the political storms that inevitably afflict the Executive Branch and the Parliament. Knowledge and the objectivity of research cannot fall under the control of those who exercise power in the Administration or Parliament every four years. Those political storms, at times so impassioned and overflowing, cannot reach an activity as important as that of the Universities. That is the spirit of the constitutional norms I am commenting on. It is a unique autonomy of our Constitution, which responds to the historical-political experiences of the 1940s.
\n\nThe Constitutional Assembly focused on shielding the state resources that would finance higher education from external political influences and pressures, in such a way as to guarantee the independence and autonomy of public universities, since they did not want either the Executive Branch or the Legislative Branch to use budgets as mechanisms to influence, pressure, or manipulate the universities, to the point that, subsequently, through a constitutional reform in 1981, the right of amendment of the budget legislator was sharply limited, by establishing its intervention exclusively for when there is no agreement between the Executive Branch and the National Council of Rectors (CONARE). See vote no. 2022-017987. All these lessons on checks and balances have been gradually forgotten, and the interest in influencing the Universities grows, despite what the Constitution and the express will of the constituents state. This trend is seen in the fiscal rule (regla fiscal), because it would be limiting what Article 85 of the Constitution establishes regarding the protection of higher education.
\n\nOne must remember that this Constitutional Court has indicated that the right to education is conceived not only as a citizens' right, but also as a public service, as a positive benefit provided to the inhabitants of the Republic by public administrations, and, as such, is subject to continuity, regularity, efficiency, efficacy, equality, and universality, such that, as part of that efficiency, it is logical to think that the entire conglomerate of economic resources at its disposal—the FEES and those from other sources—be channeled towards its fulfillment, thereby making it possible to expand the educational offerings, acquire greater technology, improve the hiring of personnel, increase the number of available spaces for first admission to different careers, expand extension and social action programs, generate more sectors in which paid services can be provided, extend scholarship programs for people with limited resources, among others, without ever losing sight of the fact that the state university does not have a profit motive but does have an interest in improving its offerings for the benefit of the student body and the community. Without disregarding that the University also has a mission in research and social action. From a fundamental rights approach, this Court could not dissociate the resources obtained by the state university from the very special function that has been granted to it under Articles 84 and 85 of the Constitution. It is not a simple teaching institution—teaching, research, and extension—but rather a complex function, integral to its nature, of conducting and deepening scientific research, cultivating the arts and letters in their highest expression, analyzing and criticizing, with high objectivity, knowledge, and rationality, the social, cultural, political, and economic reality of its people and the world, proposing solutions to major problems, and serving as a driving force for ideas and actions to achieve development at all levels (spiritual, scientific, and material), contributing with that work to the effective realization of the fundamental values of Costa Rican identity, which can be summarized as democracy, the Social State of Law, the essential dignity of the human being and the system of freedom, in addition to peace (Article 12 of the Political Constitution), and Justice (41 ibid.) (see judgment no. 1313-93 of 13 hours 54 minutes on March 26, 1993).
\n\nNote the seriousness of what the challenged norms establish, subjecting public universities to the fiscal rule (regla fiscal) (art. 5), not excluding it from its application (art. 6), establishing debt ranges for the growth of current expenditure (art. 11), that the Ministry of Finance will give a communication and guidelines for budget formulation (art. 14), establishing the destination of surpluses (art. 17), compliance with the fiscal rule in the formulation and budgeting stage (art. 19), and sanctions for non-compliance with the fiscal rule (art. 26). The fiscal rule (regla fiscal) thereby becomes an imposition, a subjection to a kind of \"straitjacket\" for State Universities regarding whatever the central government decides in that respect, and furthermore, to the detriment of their autonomy and the high purposes and tasks that were granted to them.
\n\nFrom this, what the Attorney General's Office itself indicated in its report stands out, when it states, regarding art. 17, that free surplus (superávit libre) is not even applicable to the FEES, because this fund is composed of resources with a specific purpose determined by the Political Constitution. These are tied, unavailable funds, consequently, for the ordinary and budget legislator. The special fund for the financing of state higher education possesses the characteristic that its resources have a specific purpose assigned by the Political Constitution, specifically, to finance state higher education. From this perspective, these “tied” funds (vote no. 5754-94) cannot be allocated to any purpose other than that which has been set by the Fundamental Charter. Based on the foregoing, Article 17 of the Law for the Strengthening of Public Finances (Ley de Fortalecimiento de las Finanzas Públicas) cannot comprise FEES resources due to their specific and not free purpose, so it can never be understood that the FEES is encompassed within the scope of the challenged art. 17.
\n\nFurthermore, regarding the challenged Article 19, in the same sense as indicated by the Attorney General's Office, the Budget Authority (Autoridad Presupuestaria) could in no way substitute for the Public Universities in their competence to elaborate or reformulate their budget.
\n\nFor all the foregoing reasons, I consider that Articles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. 9635 of December 3, 2018, called the “Law for the Strengthening of Public Finances” (Ley de Fortalecimiento de las Finanzas Públicas), are unconstitutional for including and subjecting public universities to the fiscal rule (regla fiscal), which implies a direct and flagrant violation of university autonomy, in the terms indicated.
\n\nA separate comment is warranted on the practical irrelevance of a decision from this Constitutional instance, because the budget was already executed contrary to what the Constitution dictates. The decision, even if it had been favorable, has very little practical relevance. There are many ways to evade the Constitutional mandate, despite oaths and promises. This trend of ignoring the mandate of the fundamental constitutional pact is reiterated in almost all budgets, and even though unconstitutionality may be declared, the decision has little practical relevance. The Constitution and its mandates can be weakened or become abrogated by repeated political practices that contradict the ideological foundation and the very text of the Constitution. Respect for the Constitution must be a priority of those who exercise the Executive Branch and the Parliament; it is not only the competence of an instance with as little political strength as the Constitutional Court.
\n\nFernando Cruz C.
\n\nJudge (Magistrado)
\n\nCO07/23
\n\nNo. 2022023239\n\nCONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE. San José, at thirteen hours and ten minutes on the fifth of October, two thousand twenty-two.\n\nAction of unconstitutionality brought by HENNING JENSEN PENNINGTON, identity card 8-041-334, in his capacity as rector of the Universidad de Costa Rica, JULIO CESAR CALVO ALVARADO, identity card 1-639-541, in his capacity as rector of the Instituto Tecnológico de Costa Rica, ALBERTO LUIS SALOM ECHEVERRÍA, identity card 1-443-578, in his capacity as rector of the Universidad Nacional, RODRIGO ARIAS CAMACHO, identity card 4-125-972, in his capacity as rector of the Universidad Estatal a Distancia, and MARCELO PRIETO JIMÉNEZ, identity card 2-283-288, in his capacity as rector of the Universidad Técnica Nacional, seeking to have articles 5, 6, 11, 14, 17, 19 and 26 of Title IV of Law 9635 of December 3, 2018, \"Ley de Fortalecimiento de las Finanzas Públicas\", declared unconstitutional.\n\n**Whereas:**\n\n**1.-** By brief received in the Secretariat of the Chamber on July 1, 2019, the plaintiffs Henning Jensen Pennington, Julio Cesar Calvo Alvarado, Alberto Luis Salom Echeverría, Rodrigo Arias Camacho and Marcelo Prieto Jiménez, in their capacity as rectors, in the respective order, of the Universidad de Costa Rica, Instituto Tecnológico de Costa Rica, Universidad Nacional, Universidad Estatal a Distancia and Universidad Técnica Nacional, bring an action of unconstitutionality against articles 5, 6, 11, 14, 17, 19 and 26 of Title IV of Law No. 9635 of December 3, 2018, named ‘Ley de Fortalecimiento de las Finanzas Públicas’. Specifically\n\nmentions two grounds of unconstitutionality: “a) Constitutional violation by omission against article 85 of the Political Constitution, for not exempting from compliance with articles 5, 6, 11, 14, 17, 19 and 26 of Title IV of Ley N° N°9635 of December 3, 2018, the Special Fund for the Financing of State University Higher Education (Fondo Especial para el Financiamiento de la Educación Superior Universitaria Estatal, FEES), which possesses its own constitutional origin and a regime of setting and determination that ordinary law cannot abolish or repeal. b) Constitutional violation of articles 84 and 85 of the Political Constitution by omission, for not exempting state universities from compliance with articles 5, 6, 11, 14, 17, 19 and 26 of Title IV of Ley N° N°9635 of December 3, 2018, given that they possess full legal capacity to acquire rights and contract obligations, as well as to provide for their own organization and governance, within which are found the definition and approval of their National Development Plan for State University Higher Education (Plan Nacional de Desarrollo para la Educación Superior Universitaria Estatal, PLANES), of five-year validity, as well as the formulation and approval of their institutional budgets to\n\ncompliance, without the intervention of the Executive Branch or its government agencies.” Regarding standing (legitimación), they state: “The University of Costa Rica, the Costa Rica Institute of Technology, the National University, the State Distance University, and the National Technical University, in accordance with the provisions of Article 2 of Law 6162 of November 30, 1977, assembled within the National Council of Rectors (Consejo Nacional de Rectores, CONARE), jointly formulate the National Plan for Higher Education (PLANES) pursuant to Article 3 of this Law, for the purposes of determining the university funding required to address their expenditures and investments, in accordance with Article 85 of the current Political Constitution. The provision of this funding not only determines and conditions the very operability of said institutions, enabling them to fulfill their state functions, but also constitutes the necessary means to guarantee the effectiveness and progressivity of the Right to University-Level Higher Education, whose direct beneficiaries are the students enrolled in these institutions. (…) The standing (legitimación) held by the state university-level higher education institutions here represented to bring this action\n\nThe claim of unconstitutionality arises from Article 75, paragraph 2, of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), because, given the nature of the matter, there is no individual and direct harm; it concerns the defense of diffuse interests that pertain to the community as a whole, and it is not possible, by its nature, to obtain a justiciable case of singular and concrete application, not only by reason of the subject matter dealt with here, but also because Article 34, subparagraph c), of the Organic Law of the Office of the Comptroller General of the Republic (Ley Orgánica de la Contraloría General de la República), No. 7428 of September 7, 1994, published in the official gazette La Gaceta number 210 of November 4, 1994, provides that in budgetary matters — [sic] — no appealable acts exist, thereby making it impossible to challenge and form a prior administrative file in which the unconstitutionality of a legal provision may be asserted, as required by Article 75 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), No. 7135 of October 11, 1989, published in the official gazette La Gaceta number 198 of October 19, 1989. The action is brought in defense of diffuse or collective interests related to the financing of the fundamental right to higher education\n\nand control over the management of public funds according to their determination in the National Plan for the Development of State University Higher Education (PLANES), their incorporation into the budget of the Republic and their corresponding institutional budget formulation, by each of the state universities. In this case, there is standing in the defense of \"diffuse interests,\" within which the Constitutional Chamber (Sala Constitucional) has identified the environment, cultural heritage, defense of the country's territorial integrity, sound management of public spending, the right to health, the right to public education, among other cases in which it has ruled to the effect that it is not necessary to have a prior matter serving as the basis for this action. The violations alleged here are also not capable of generating an individual injury that would grant standing to a specific or identifiable person to request constitutional review, which is why the judgments 480-2002 of 14:41 hours of January 23, 2002, 481-2002 of 14:42 hours of the same day, and judgment 5798-2014 of 16:33 hours of April 30,\n\nof 2014, issued by the Chamber itself, since \"given the nature of the challenged provision, it is not possible to obtain a justiciable instance of singular and concrete application (judgment no. 2004-14986 of 12:17 hours on December 24, 2004).\" They note that university higher education institutions enjoy full legal capacity to acquire rights and contract obligations, as well as to establish their own organization and governance. By virtue of this independence, they possess the power to formulate and approve their National Development Plan for this education (PLANES), for whose execution and fulfillment they annually formulate and approve their institutional budgets. They argue that, through the annual allocation of funds with a specific constitutional destination to the Special Fund for Financing State University Higher Education (FEES), the State provides budgetary content to the state universities so that they fulfill their purposes and tasks, as well as their annual operational plans, in accordance with the current PLANES and their powers of independence of governance, including university planning, organization, and administration. They state that, by an email of 14:58 hours on May 30, 2019, \"Reminder II Conference for the Budget Manager of the Costa Rican Public Sector,\" those responsible for budget formulation at the state universities were summoned to a meeting organized by the Office of the Comptroller General of the Republic and the Ministry of Finance for May 31, 2019, in which they were informed \"that the university budget will be\n\nn'; font-style:italic\\\"> as of this budget formulation, subject to the fiscal rule (regla fiscal).” They allege that, in summary, the following was indicated: “a)That the state universities, as institutions of the non-financial public sector, are not covered by Article 5 of the Ley N° 9635 (Title IV). b)That the state universities must submit their total expenditure budgets to the approval of the Budget Authority (Autoridad Presupuestaria) so that it may issue a certification of compliance with the fiscal rule. c) That the certification from the Budget Authority shall be an admissibility requirement for the submission of university budgets before the Contraloría General de la República. d) That the capitalizable expenditures of the state universities must relate to projects duly registered with the Ministerio de Planificación. e) That university budgets may not exceed a maximum increase of 4.67% in current expenditure.” They consider that with the foregoing and what is set out in official communication no.\n\nSTAP-CIRCULAR-0754-2019 of May 22, 2019, the annual execution of the PLANS and the annual disbursement of the FEES were subjected to conditions not authorized by Article 85 of the Political Constitution. They reproach that the state universities were made subject, in matters of political independence, administration, and governance, to the directives and orders of the Executive Branch, both through the Ministry of Finance and the Budgetary Authority, which transgresses the power of self-determination of the state universities to establish plans, programs, and budgets, an integral part of university autonomy (autonomía universitaria). They maintain that the state universities are outside the scope of the Budgetary Authority. They add: \"as a recognition of their constitutional independence in matters of policy, administration, and governance, as expressly provided by Article 1, subsection d) of the Financial Administration of the Republic and Public Budgets Law, No. 8131 of September 18, 2001, published in the official gazette La Gaceta number 198 of October 16, 2001. \"ARTICLE 1.- Scope of application This Law regulates the economic-financial regime of the bodies and entities administering or safeguarding public funds. It shall be applicable to: (...) d. The state universities, the municipalities, and the Costa Rican Social Security Fund, only with respect to compliance with the principles established in Title\n\n...of Chapter II of this Law, regarding responsibilities and to provide the information required by the Ministry of Finance for its studies. In all other respects, they are exempted from the scope and application of this Law.\" They set forth the following arguments of unconstitutionality: \"FIRST. - The University of Costa Rica was created by Law No. 362 of August 26, 1940, endowed with full legal capacity (capacidad jurídica) to acquire rights and contract obligations, as well as to establish its own organization and government, and other (sic) of the competences, powers, and prerogatives of law attributed by its Law, which as a whole constituted the sphere of university autonomy (autonomía universitaria) that was recognized and conferred upon it. SECOND. - The 1949 National Constituent Assembly incorporated this regime of university autonomy (autonomía universitaria) and its content, thereby elevating its political, administrative, governance, and organizational competences and powers as the object of the constitutional independence guarantee contained in Article 84. University autonomy (autonomía universitaria) was \"constitutionalized\" as of November 7, 1949, the date of enactment of the current Political Constitution. THIRD. - The regime of constitutional independence conferred upon the University of Costa Rica is special and different\n\nto that established by the Political Constitution itself for the autonomous institutions that it expressly designates in its articles 170, 176 second paragraph, 182, 188 and 189, especially in its subsection three: \"Article 189.- The following are autonomous institutions: 3) Those established by this Constitution, and any new bodies that the Legislative Assembly may create by a vote of no less than two-thirds of its total membership.\" In the records of the Constituent Assembly when the regime of autonomous institutions was discussed, it was clarified that this regime did not apply to the University of Costa Rica: (...) \"Messrs. TREJOS and ESQUIVEL amended their motion as follows: \"To appoint the directors of the autonomous institutions, in accordance with the law.\" The foregoing wording was also objected to by several Representatives. Mr. ORTIZ asked if all the directors of the autonomous institutions are to be appointed by the Executive Branch. If this is the case, what will be the situation of the University of Costa Rica? Or will the Executive Branch only appoint the directors that the law authorizes it to? Mr. FACIO clarified that, within the general structure of the Draft of '49, to the University\n\n... of Costa Rica is not considered an autonomous institution but rather an independent institution of higher learning. If this definition is maintained, there will not be the problem that Mr. Gonzalo Ortiz has raised.” Minutes 138, page 1184. Minutes of the National Constituent Assembly of Costa Rica, 1949 Digital Version 2005, reviewed by Dr. Rodolfo Saborío Valverde. FOURTH. - The regime of autonomous institutions (instituciones autónomas) established in Articles 188 and following of the Political Constitution considered their independence in matters of governance, which is why they could not, initially, be subjected to the centralized planning of the State through the National Development Plan (Plan Nacional de Desarrollo). This independence coincided with the full legal capacity of university governance. As of the constitutional reform of Article 188 introduced by Law No. 4123 of May 31, 1968, autonomous institutions became subject to the Law in matters of governance, which is why as of that reform those institutions became subject to the National Development Plan, differentiating and distancing themselves from the regime of independence in force for university governance. FIFTH. - The reform of Article 84 of the Political Constitution\n\nextended by Law N°5697 of June 9, 1975, granted to all \"state university higher education institutions\" equal attributes of functional independence and full legal capacity, inherent to their university autonomy, with full independence in matters of governance, which includes planning, administration, and organization. Its current text reads: \"ARTICLE 84.- The University of Costa Rica is an institution of higher culture that enjoys independence for the performance of its functions and full legal capacity to acquire rights and contract obligations, as well as to establish its own organization and governance. The other state university higher education institutions shall have the same functional independence and equal legal capacity as the University of Costa Rica. The State shall endow them with their own patrimony and shall collaborate in their financing.\" SIXTH- The \"other state university higher education institutions\" created after the University of Costa Rica have been granted the same constitutional guarantee of full legal capacity, independence of functions, organization, governance, and the consequent state university national planning: a) THE UNIVERSIDAD NACIONAL, created by Law N°\n\n5182 of February 15, 1973. b) The INSTITUTO TECNOLOGICO DE COSTA RICA created by Law No. 4777 of June 10, 1971. c) The UNIVERSIDAD ESTATAL A DISTANCIA created by Law No. 6044 of March 3, 1977. d) The UNIVERSIDAD TECNICA (sic) NACIONAL created by Law No. 8638 of May 14, 2008.\n\nSEVENTH (sic). - The regime of independence enjoyed by the state institutions of higher university education comprises the administrative, political, organizational modalities and those specific to university autonomy, which has been classified as special, complete, and distinct from the rest of the decentralized entities regulated by articles 188 to 190 of the Political Constitution. Article 84 of the Constitution preserves, contains, and guarantees the exercise of the public powers inherent to those university institutions, and implies, among other aspects, that they: a) Are (sic) outside the direction of the Executive Power and its hierarchy, b) Have all the administrative faculties and powers necessary to carry out the special purpose legitimately entrusted to them. c) Enjoy the power of self-determination to establish their plans, programs, budgets, internal organization, and to structure\n\nits own governance. d) They carry out their mission of higher education and culture with independence. e) They impart teaching, conduct and deepen scientific research, cultivate the arts and letters in their highest expression, analyze and critique, with objectivity, elevated knowledge and rationality, the social, cultural, political and economic reality of their people and the world, propose solutions to the great national problems, serve as drivers of ideas and actions to achieve development at all levels, without prejudice to other specialties or subjects assigned to them. It has been noted that the essential content of constitutional Article 84, by constituent will, is that the university as a center of free thought must and has to be exempt from pressures or measures of any nature that tend to prevent it from fulfilling, or that threaten, these, its great tasks. (Cf. judgments 495-92 and 1313-93 of the Constitutional Chamber itself). EIGHTH. - It is known and accepted both by our doctrine and in national jurisprudence that there are different degrees of autonomy (autonomía) conferred upon public bodies and entities: Administrative independence: constitutes the first of the strata of independence that can be conferred upon a\n\n...or an entity or a state body, usually associated with instrumental legal status (personerías instrumentales) that confer authorization to administer their own budget (presupuesto propio) to these entities; Government independence (independencia de gobierno): called the second degree of autonomy (segundo grado de autonomía) or independence, also referred to as political independence, it implies a separation from the governmental powers exercised by the Executive Branch (Poder Ejecutivo). This independence authorized autonomous institutions (instituciones autónomas) to establish their own planning, issue their own directives, without any intervention from the Executive Branch or its dependencies, a power that was suppressed when Article 188 of the Political Constitution (Constitución Política) was reformed. Currently, although autonomous institutions lost their government independence, subjecting them to the Law, state universities (universidades estatales) do retain their original regime of independence in this matter, by virtue of the provisions of Article 84 of the Political Constitution. This government independence of state universities prevents the Executive Branch or its dependencies from interfering in university governance and planning. Organizational independence (independencia de organización): called the third degree of autonomy (tercer grado de autonomía), it is held exclusively by state universities and implies that they can organize themselves internally, decentralize (desconcentrarse) for the pursuit of their own purposes and\n\n...to equip themselves with the required internal regulations for this purpose, with total independence from the Legislative Assembly. When the state universities promulgate their own Organic Statutes (Estatutos Orgánicos), they issue an act that by its nature holds the rank of material law (ley material), as it substitutes the competence of the Legislative Assembly. Just as an ordinary law depends in one degree on the Constitution, so too do the university statutes depend directly on the constitutional norm. This power of self-organization and independence prevents the Legislative Assembly from enacting laws concerning the government, organization, or administration of, or that prevent, the state universities from exercising their full legal capacity to acquire rights and incur obligations, or that likewise restrict or prevent the free fulfillment of their mission.\n\nNINTH. - In accordance with the provisions of Articles 84 and 85 of the Political Constitution, within the regime of constitutional independence conferred upon the state universities, there is also the right of ownership and free disposition over their own assets, constitutionally separated from those of the State. Over this patrimonial holding, called the University Treasury (Hacienda Universitaria), separate from the Public Treasury (Hacienda Pública), these institutions exercise their power of self-determination that is constitutionally guaranteed to them, through their full legal capacity to acquire\n\nrights and assume obligations. This University Estate comprises all its assets, both material and financial and budgetary, which are subject exclusively to the constitutional university power of self-determination. TENTH (sic). - In the administration of their University Estate for the fulfillment of their institutional purposes, all state universities have exercised their full legal capacity to acquire and confer rights and assume obligations against their own patrimony, in exercise of their constitutional independence in matters of administration and governance, without requiring additional authorizations or approvals other than those of their own governing authority. Any act of disposition over this patrimony must be the result of the exercise of the university powers of self-administration and self-governance. ELEVENTH (sic). - As part of the exercise of this power of patrimonial disposition and political, administrative, and governance independence, constitutional Article 85 establishes that state universities shall have their own National Plan for the Development of Higher Education (Plan Nacional de Desarrollo de Educación Superior, PLANES), which determines the needs and quantification of the Special Fund for the Financing of this Education (Fondo Especial para el financiamiento de esta educación, FEES), as well as the expenses and investments that must be considered annually by these universities for the formulation of\n\ntheir institutional budgets, in such a way that each annual operational plan complies with the aims, goals, and objectives described in the respective five-year PLANS. For this reason, the national budget cannot detail the destination or expenditure items of the universities, but must contain a pure and simple transfer, not subject to legal conditions not foreseen or authorized by Article 85 of the Constitution. Any transfer destined for the financing of the FEES is \"tied\" to compliance with the aims established in the PLANS, as provided by Article 85 of the Political Constitution. For this reason, no budget surplus can have a destination other than what has already been constitutionally established. It will always form part of the aforementioned University Treasury (Hacienda Universitaria), and therefore there can be no reimbursement of any amount to the single treasury of the State.\"\n\nTWELFTH (sic). – Articles 5 and 6 of Title IV of Law N°9635 establish: \"ARTICLE 5- Scope of application. The fiscal rule shall be applicable to the budgets of the entities and bodies of the non-financial public sector. ARTICLE 6- Exceptions. The following institutions are exempt from the scope of coverage of this title: a) The Caja Cos\n\nThe Costa Rican Social Security Fund (Caja Costarricense de Seguro Social, CCSS), only with respect to the resources of the disability, old age, and survivors' regime (invalidez, vejez y muerte, IVM) and the non-contributory regime administered by said institution. b) Any public enterprise that participates directly in any activity open to the competition regime, but only in relation to said activity. This rule will cease to apply when the enterprise requests a financial bailout from the Executive Branch or when its debt-to-assets ratio is greater than fifty percent (50%). c) The Costa Rican Petroleum Refinery (Refinadora Costarricense de Petróleo, Recope) only with regard to the petroleum invoice.\"\n\nAn ordinary law cannot nullify constitutional provisions. With or without an express exception contained in Article 6 of Law No. 9635, its application to state universities is contrary to their constitutional regime, because it would condition the allocation of the FEES to legal restrictions (fiscal rule) and would violate their autonomy regime in this matter. State universities would be subject to the direct intervention of the Executive Branch and its government policies through the Ministry of Finance and the Budgetary Authority, because Title IV of Law No. 9635\n\nits Articles 11, 14 and 19 provide: “ARTICLE 11- Debt ranges to be considered for determining the growth of current expenditure. The current expenditure of the budgets of the entities and bodies of the non-financial public sector shall grow according to the following debt parameters of the Central Government: a) When the debt at the close of the budget year prior to the year of application of the fiscal rule does not exceed thirty percent (30%) of GDP, or the current expenditure-to-GDP ratio of the Central Government is seventeen percent (17%), the year-on-year growth of current expenditure shall not exceed the average growth of nominal GDP. b) When the debt at the close of the budget year, prior to the year of application of the fiscal rule, is equal to or greater than thirty percent (30%) of GDP, but less than forty-five percent (45%) of GDP, the year-on-year growth of current expenditure shall not exceed eighty-five percent (85%) of the average growth of nominal GDP. c) When the debt at the close of the budget year, prior to the year of application of the fiscal rule, is equal to or greater than forty-five\n\npercent (45%) of GDP, but lower than sixty percent (60%) of GDP, the year-on-year growth of current spending shall not exceed seventy-five percent (75%) of the average growth of nominal GDP. d) When the debt at the close of the budget year prior to the year of application of the fiscal rule is equal to or greater than sixty percent (60%) of GDP, the year-on-year growth of total spending shall not exceed sixty-five percent (65%) of the average growth of nominal GDP. “ARTICLE 14- Publication of the fiscal rule scenario. The Ministry of Finance shall communicate the current spending growth rate resulting from the calculation of the fiscal rule, taking the official figures for debt and average GDP. This rate shall be communicated jointly with the budgetary guidelines and shall be applied in the formulation of the following year's budget. In the event that the Ministry of Finance does not communicate the current spending growth rate, it shall be assumed that the corresponding applicable rate for the budget year shall be the rule of the current scenario.” “ARTICLE 19- Compliance with the fiscal rule during the formulation and budgeting stages The Ministry of\n\nof Finance will carry out the budget allocation of the budget titles that make up the central Administration in full compliance with the provisions of this law and in Ley N.º 8131, Financial Administration of the Republic and Public Budgets, of 18 September 2001. The Dirección General de Presupuesto Nacional will verify that budget modifications and extraordinary budgets comply with the provisions established in article 11 of this law and in Ley N.º 8131. In the event that such modifications entail non-compliance with the rule established herein, this Director must apply the provisions of article 177 of the Political Constitution, and inform the minister of Finance and the president of the Republic. In the case of resources for devolved bodies (órganos desconcentrados), the minister of Finance will decide, through fiscal sufficiency criteria, respect for fundamental rights, and following the priorities of the National Development Plan, the amount to budget to these bodies and their growth. The rest of the non-financial public sector entities must prepare their ordinary budget, extraordinary budget, and budget modifications in full compliance with the provisions established in article 11 of this law. The\n\nThe verification of compliance with this rule shall be the responsibility of the Contraloría General de la República, which, for purposes of the legality review block it conducts, shall consider the certification to be issued by the Secretaria Técnica de la Autoridad Presupuestaria regarding compliance with the fiscal rule. In the event that the Secretaria Técnica de la Autoridad Presupuestaria certifies non-compliance with the fiscal rule by non-financial public sector entities, the Contraloría General de la República shall assess that certification and resolve accordingly. To fulfill the provisions of this rule, the entities referred to in Article 5 of this law, whose budget is approved by the Contraloría General de la República, must submit copies of their ordinary budgets, extraordinary budgets, and budget modifications to the Secretaría Técnica de la Autoridad Presupuestaria. The Secretaría Técnica de la Autoridad Presupuestaria shall verify that the budget modifications and extraordinary budgets of the remaining non-financial public sector entities comply with the provisions of Article 11 of this law. If situations arise that could lead to non-compliance with the rule, the Secretaría Técnica de la Autoridad Presupuestaria must inform the\n\nGeneral de la República for the corresponding matter. Likewise, non-financial public sector entities shall send a copy of their quarterly executions and their budget liquidation to the Technical Secretariat of the Budgetary Authority. The Technical Secretariat of the Budgetary Authority must communicate the results of the verifications set forth in this regulation, in accordance with the following deadlines, no later than the last business day of the month of October of each year for the review of initial budgets, and within ten business days, counted from the receipt of the corresponding budget document for extraordinary budgets and modifications.” With the foregoing, the annual indexing ordered for the FEES by Article 85 of the Constitution is rendered without effect, as well as annulled the operating and investment needs contained in the PLANS for the adequate development of the state universities and the fulfillment of their purposes, aimed at, among other values and public purposes of constitutional relevance, guaranteeing the fundamental right to education, which is also guaranteed by Article 78 of the Constitution by imposing on the State the obligation to invest in Education no less than 8% of the Gross Domestic Product, without restrictions that may be derived from the so-called\n\n“fiscal rule” THIRTEENTH. The violation of the Right of the Constitution is also reiterated by attempting to apply the fiscal rule to state universities and subject them to the sanctioning regime stipulated for its non-observance, pursuant to article 26 of Title IV of Law No. 9635 which indicates: “ARTICLE 26- Sanctions. Unjustified non-compliance with the fiscal rule and its control constitutes a serious offense against the Public Treasury, and shall be sanctioned as indicated in article 68 of Law No. 7428, Organic Law of the Office of the Comptroller General of the Republic, of September 7, 1994. The foregoing is without prejudice to the provisions of article 339 of Law No. 4573, Penal Code, of May 4, 1970. It is incumbent upon the Legislative Assembly to proceed against the comptroller and the deputy comptroller general of the Republic who fail in their duty to duly control compliance with the fiscal rule, under the terms established in article 43 of Law No. 7428, and considering the provisions of Law No. 8292, General Law of Internal Control, of July 31, 2002.” For its part,\n\nArticle 68 of Law No. 7428 provides: \"Article 68.- Power to order and recommend sanctions. The Contraloría General de la República, without prejudice to other sanctions provided for by law, when in the exercise of its powers it determines that a servant of the passive subjects has committed infractions of the norms that make up the control and oversight framework contemplated in this Law or has caused injury to the Public Treasury, shall recommend to the competent administrative body or authority, through its technical criterion, which is binding, the application of the corresponding sanction according to the merits of the case. The Contraloría shall form an expediente against the eventual offender, guaranteeing them, at all times, due process and sufficient opportunity for hearing and defense in their favor. The competent authority of the required passive subject must comply, within the period established by the Contraloría, with the recommendation issued by it; unless, within a term of eight business days counted from the communication of the act, a petition for review is filed, duly motivated and reasoned, by the head of the required passive subject. In this case and once the indicated petition has been resolved, they must comply,\n\nwithout delay, with the provisions of the final technical-legal pronouncement of the Office of the Comptroller General (Contraloría), under penalty of incurring the crime of disobedience, without prejudice to the statute of limitations (prescripciones) regime set forth in this Law. The expiration of the period established by the Office of the Comptroller General of the Republic (Contraloría General de la República) for the passive subject to impose the ordered sanction shall not, by itself, cause the liability of the public servant to prescribe, nor the right of the passive subject to impose said sanction to expire, without prejudice to the statute of limitations regime set forth in this Law. The right of the Office of the Comptroller General of the Republic to exercise, in the specific case, the power to recommend or order the application of sanctions shall prescribe within two years counted from the initiation of the respective case file (expediente). The initiation of the case file shall be understood to occur with the order of the competent office of the Office of the Comptroller General to begin the investigation, in relation to specific public servants.” And Article 339 of the Penal Code (Código Penal) establishes: “Article 339.- Breach of duties. Any public official who illegally omits, refuses to perform, or delays any act inherent to his function shall be punished with a penalty of disqualification (inhabilitación) from one to four years. The same penalty shall be imposed on\n\n…public official who unlawfully fails to abstain, recuse him or herself, or excuse him or herself from carrying out a procedure, matter, or proceeding, when obligated to do so.” In other words, not only are mandatory regulations stipulated for the formulation of university budgets that are contrary to the constitutional regime, which is of direct and immediate application, but also administrative and criminal sanctions are stipulated against the authorities who fail to comply with Articles 5, 6, 11, 14, and 15 of Title IV of Ley N° 9635, relating to the fiscal rule.\n\nTENTH (sic) FOURTH. – The constitutional violation due to the omission incurred in Title IV of Ley N° 9635 is even more evident due to the provisions of its Article 17, which mandates the return to the national budget of any surplus from the university budget, thereby diverting the constitutional purpose of the FEES transfer to be used for a different end: “the amortization of debt or public investment,” which is an action not only unconstitutional but also of criminal consequences. “Article 17- Destination of the free surpluses generated by the application of the rule. In the event that the\n\nthe public entities that have liabilities generate a free surplus (superávit libre) at the end of the budget year, this shall be allocated to amortize their own debt. In the case of the free surplus (superávit libre) generated by entities that receive transfers from the national budget as a consequence of the application of the fiscal rule (regla fiscal), such surplus (superávit) must be reimbursed to the national budget in the year following the one in which said surplus (superávit) was generated, to be used for debt amortization or public investment.” While it is true that under the regime of constitutional independence that the state universities possess, they must pursue the sustainability of their own institutional budgets and the self-restraint of their operating expenses, it is also true that any resulting surplus (superávit) will remain part of their equity or University Treasury (Hacienda Universitaria) and cannot be reimbursed to the national budget. For this reason, the application of the fiscal rule (regla fiscal) in the state university sphere would have no effect in favor of the Public Treasury (Hacienda Pública), making its application unjustified for university budgets. The exemption from the regime of the fiscal rule (regla fiscal) established in Title IV of Law Nº 9635 in its articles 5 and 6 is constitutionally necessary, and therefore we request that it be declared\n\n...the unconstitutionality of these legal provisions by omission, which results in a clear violation of the state university regime established in Articles 84 and 85 of the Political Constitution, of full, direct, prevailing, and immediate application, which is here accused and claimed. TWENTY-FIFTH. The Constitutional Chamber, by judgment number 2018-019511 of 21 hours on November 23, 2018, resolving the legislative consultation procedure on the text of the draft of future Law Nº 9635, resolved that the Law could regulate the concept of \"public expenditure\" in education, since Article 78 expressly authorizes it. But that authorization does not apply to nor can it affect Articles 84 or 85 of the Constitution itself, which are of direct and immediate application, without requiring any Law for their execution or interpretation: “We underline that the express text of numeral 78 of the Political Constitution refers to the law, when it literally stipulates: “In state education, including higher education, public expenditure shall not be less than eight percent (8%) annually of the gross domestic product, in accordance with the Law, without prejudice to the provisions\n\narticles 84 and 85 of this Constitution\" (underlining not in the original). Since the Constitution refers to the law, it is constitutionally plausible that even the concept of \"public expenditure\" is determined dynamically by the ordinary legislator themselves, given that the Fundamental Law itself empowers them.” This text also constitutes an example of the exception that must be recognized in the case of the application of articles 84 and 85 of the Political Constitution regarding the reforms and provisions introduced into our legal system by Title IV of Law No. 9635, just as was considered and justified in the case of articles 73 and 177 of the Political Constitution, which are analyzed in that same judgment in the following terms: “In summary, the fact that the challenged rule expressly excludes from the fiscal rule the resources of the Disability, Old Age, and Death Regime (IVM) and the Non-Contributory Regime administered by the CCSS is not per se unconstitutional, since, on the one hand, the introduction of such exceptions is constitutionally imperative, and, on the other, such reference does not prevent the sickness and maternity insurance from\n\nalso finds itself excluded by direct application of postulates 73 and 177 of the Political Constitution, such that regarding those aspects no legal vacuum emerges that would contradict the constitutional order.” Likewise, the exception is also constitutionally imperative for the state universities, regardless of the final text that may have been approved for Law Nº 9635. They mention that the following constitutional violations exist: “As a corollary of all the foregoing, in the present case there is a concurrence of two constitutional violations by omission in Title IV of Law Nº 9635 of November 28, 2018: a) Constitutional violation by omission against article 85 of the Political Constitution, for not exempting the Special Fund for the Financing of State University Higher Education (Fondo Especial para el Financiamiento de la Educación Superior Universitaria Estatal, FEES), which possesses a constitutional origin and regimen of setting and determination of its own that ordinary law cannot abolish or repeal, from compliance with articles 5, 6, 11, 14, 17, 19 and 26 of Title IV of Law Nº Nº (sic) 9635 of December 3, 2018. b) Constitutional violation by omission against articles 84 and 85 of\n\nthe Political Constitution, for not exempting the state universities from compliance with articles 5, 6, 11, 14, 17, 19 and 26 of Title IV of Law No. Nº (sic) 9635 of December 3, 2018, which possess full legal capacity to acquire rights and contract obligations, as well as to provide themselves with their own organization and government, among which are the definition and approval of their National Development Plan for State University Higher Education (Plan Nacional de Desarrollo para la Educación Superior Universitaria Estatal, PLANES), of five-year validity, as well as the formulation and approval of their institutional budgets to comply with it, without the intervention of the Executive Branch or its government entities.” They formulate the following petition: “Based on all of the foregoing, we request the Constitutional Chamber (Sala Constitucional) to process this action of unconstitutionality, for which we provide copies of the law, and to uphold the unconstitutionality accused and claimed against articles 5, 6, 11, 14, 17, 19 and 26 of Title IV of Law No. Nº (sic) of December 3, 2018, declaring in judgment: A.- The standing that the state university higher education institutions possess for the filing of this action of unconstitutionality against articles\n\n5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. Nº (sic) 9635 of December 3, 2018, published in Supplement (Alcance) 202 to La Gaceta (Official Gazette) number 225 of December 4, 2018. B.- The unconstitutionality by omission of Articles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. Nº (sic) 9635 of December 3, 2018 for violating Article 85 of the Political Constitution, by not exempting the Special Fund for State University Higher Education Financing (FEES) from its compliance, which has its own constitutional origin and regime for setting and determination that ordinary law cannot abolish or repeal. C.- The unconstitutionality by omission of Articles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. Nº (sic) 9635 of December 3, 2018 for constitutional violation by omission against Articles 84 and 85 of the Political Constitution, by not exempting the formulation of state university budgets from its compliance. D.- To dimension the effects of the ruling that upholds this action, warning the Legislative Branch\n\nExecutive Branch, through the Ministry of Finance, the Budgetary Authority, and the Comptroller General of the Republic, to consider the university budgets exempted from compliance with the fiscal rule provided for in Title IV of Law No. 9635 regarding the formulation, approval, liquidation, evaluation, and monitoring. D.- To prevent both the Ministry of Finance, the Budgetary Authority, and the Comptroller General of the Republic from carrying out actions or omissions that imply applying, directly or indirectly, the fiscal rule to the university budgets and treasury, nor to the annual amount of the FEES that constitutionally corresponds.”\n\n2.- By resolution at 8:35 hours on 5 July 2019, the Presidency of the Chamber granted leave to proceed (dio curso) to the action of unconstitutionality filed by the claimants against Articles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. 9635 of 3 December 2018, ‘Ley de Fortalecimiento de las Finanzas Públicas,’ and conferred a hearing upon the Attorney General of the Republic, the Comptroller General of the Republic, and the Minister of Finance. Likewise, it ordered that the action was admitted because it met the requirements set forth in numerals 73 through 79 of the Constitutional Jurisdiction Law, and that the claimant’s standing (legitimación) derived from paragraph 2 of Article 75 of that same regulatory body,\n\nthey appear in defense of diffuse interests to safeguard the public funds that must be allocated to financing state higher education and the fundamental right to education. Finally, in addition to ordering the publications in the Boletín Judicial, it resolved: “Legal effects of filing the action: The terms of Articles 81 and 82 of the Ley de la Jurisdicción Constitucional are recalled, which provide the following: “Article 81. If the President considers the requirements that have been cited are fulfilled, he shall grant a hearing to the Procuraduría General de la República and to the counterparty appearing in the main matter, for a period of fifteen days, so that they may state what they deem appropriate. At the same time, he shall order that a note be sent to the court or body hearing the matter, so that it does not issue the final resolution before the Sala has ruled on the action, and shall order that a notice be published in the Boletín Judicial,\n\nagreement or resolution, nor shall a final resolution be issued while the Chamber has not ruled on the case. If the action is filed by the Procurador General de la República, the hearing shall be given to the person appearing as the opposing party in the main matter.”, “Article 82. In proceedings in progress, no stage other than that of issuing the final resolution shall be suspended, unless the action of unconstitutionality (acción de inconstitucionalidad) refers to norms that must be applied during the processing.” Within the fifteen days following the first publication of the cited notice, those appearing as parties in matters pending as of the date of filing of this action, in which the application of what is challenged is discussed, or those with a legitimate interest, may appear in order to collaborate regarding its merits or lack thereof, or to expand, as appropriate, the grounds for unconstitutionality in relation to the matter that interests them. It is also made known that, in accordance with Articles 81 and 82 of the Ley de Jurisdicción Constitucional and as the Chamber has repeatedly ruled (resolutions 0536-91, 0537-91, 0554-91 and 0881-91), this publication does not suspend the validity\n\n...the rule in general, but only its application in the cases and conditions indicated.\"\n\n**3.-** The notices referred to in the second paragraph of Article 81 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional) were published in editions nos. 135, 136, and 137 of the Judicial Bulletin (Boletín Judicial) for the days 18, 19, and 22 July 2019, respectively.\n\n**4.-** By brief incorporated into the digital case file (expediente) on 29 July 2019, María del Rocío Aguilar Montoya appears in her capacity as Minister of Finance. She states the following: *“Regarding the merits - I. As a first element for the analysis of constitutionality that is requested of the Constitutional Chamber (Sala Constitucional) in relation to Articles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. 9635 and its reform, one must start from the concept of the State embodied in our Political Constitution, and regarding which the Constitutional Chamber itself has maintained that the Costa Rican State has the characteristic of being unitary, which serves as support for the more efficient fulfillment of the political aims, objectives, and goals established by the legal system. It turns out, then, that for those who conceived the current Costa Rican State, as a unitary State, it was not possible to*\n\n...to think that the distribution of functions and tasks among the organs that comprise it—whose necessity and importance is undeniable—became a barrier to achieving unity and harmony of action in our own State. This view is reiterated by the Constitutional Chamber (Sala Constitucional) in resolution N.° 2018019511 of 21:45 hours on 23 November 2018, in which the optional consultations on the constitutionality of draft law N.° 20.580 (now Ley N.° 9635) were resolved, when, taking up the dissenting reasons of Judges Castillo Víquez, Rueda Leal, and Cambronero Salazar—with the writing of the first—from vote 2011-015655, the following is indicated: “…That being the case, upon the approval of the reform of constitutional numeral 188, the autonomous institutions were made subject principally to the National Development Plan (Plan Nacional de Desarrollo) or other instruments in the terms defined by law. The objective of that binding was to give depth to the purposes and objectives of the State, understanding them as a whole, a way in which the derivative constituent power addressed a very justified concern from the Political Constitution (Constitución Política), referring to what today is\n\n...we know as governing principles of the entire Public Administration: the principles of unity and coordination of the State. Its force naturally comes from the effective fulfillment of the common good and constitutes the boundary of the autonomy of autonomous institutions, with the need for coordination, but without detaching itself from the respective competencies assigned by the Constituent, conceived precisely to give it that aforementioned depth. Now, refining what was set forth in the different reasons alluded to and incorporated into the vote 2011-015655, from the literal text of constitutional article 188 and the transcribed citations it is easily observed that said subjection to the law was justified with the argument of the need to coordinate a national planning, which, however, is not circumscribed to the national development plan but can perfectly encompass other instruments and regulations pertaining to State planning, such as those relating to economic planning (which includes tax and public spending policies...\n\nthat are matters of government), without it being possible through this avenue to empty the fulfillment of the institutional purposes incumbent upon autonomous entities in accordance with the Constitution. (...) From the (sic) foregoing discussion it is concluded that the drafters of the current Political Constitution were very clear that the matters subject to the jurisdiction of the autonomous institutions could be subject to regulation by the Legislative Assembly, provided they were consulted. This position is reinforced by the argument that if the Parliament may regulate matters even when they are the jurisdiction of the state universities (ordinal 88 of the Political Constitution), or related directly to them, who hold a third-degree autonomy – self-regulatory –, a fortiori it also has jurisdiction to regulate the matters that are proper to the autonomous institutions. This idea is also present in the discussion of article 73 of the Fundamental Charter in the National Constituent Assembly, since in the record\n\n... n.° 125, Deputy F.B. points out that those institutions “(...) although autonomous, cannot absolutely detach themselves from the State. Otherwise, it would be creating new States within the State.” (...) (Emphasis added). It is pertinent to state that, although the Constitutional Chamber in the cited text not only refers to state universities since it also analyzes matters pertaining to autonomous institutions, it cannot be overlooked that the argumentation of the subject addressed centers on the fact that the State must be seen as a whole, which is why unity and coordination of the State are guiding principles of the Public Administration, principles that find their raison d'être in the pursuit of the common good, which constitutes the limit to autonomy in the decentralized (descentralizado) sector. And it is precisely because, as the Constitutional Chamber rightly cites, for the National Constituent Assembly it was impossible to think that in a unitary State like ours, the entities of the decentralized (descentralizado) sector would have such unrestricted autonomy that it would make them States within the State; a position that would be completely removed from the vision\n\nharmonious structure of the State to which reference has been made. The other aspect to highlight is that the need to coordinate national planning is not limited to the national development plan, since in the judgment of the Chamber, it may encompass other instruments and regulations linked to State planning, such as those relating to economic planning, within which it includes tax and public spending policies that are a matter of government. This being so, provided that through these mechanisms the fulfillment of the institutional purposes incumbent upon the entities of the decentralized sector, in accordance with the Constitution, is not emptied of content. It is within this context that it is relevant to refer again to Resolution No. 2018019511, when, in alluding to Title IV of what is now Law No. 9635, it stated: “…Precisely, Title IV “Fiscal Responsibility of the Republic” of the draft law consulted develops an economic policy of public spending, which, due to its national-level impact on the management of public finances, involves the relationship of the central government with the rest\n\n...of the entities and organs of the non-financial public sector…” (The underlining is not from the original) It is clear that for the broad vision of the Chamber, with respect to the imperative need for national planning coordination, Title IV of Law No. 9635 and its reform constitute national planning legislation in its economic aspect, since it deals with public spending, for which interaction between the Central Government and the entities and organs of the non-financial public sector, in which the public universities are situated, is vital. II. Another general aspect that is considered timely to point out relates to the balance between the principle of budgetary equilibrium and the Social Rule of Law, to which the Constitutional Chamber referred in recital IV of resolution No. 2018019511 cited above, an analysis it develops based on the review of technical criteria and reports from various competent authorities in matters of State finances, which served as sufficient evidence to conclude that the disregard for the constitutional principle of financial equilibrium\n\ncontained in Article 176 of the Political Constitution, has resulted in our country having such a deteriorated fiscal situation that it threatens the financial sustainability of the State. In view of the foregoing, the Constitutional Chamber makes some considerations whose relevance merits being revisited in this analysis and which are transcribed below: “…On this matter, in the face of a critical condition in public finances (duly supported by technical studies), which puts at risk the effective or adequate execution of constitutionally relevant services, the decision of the competent authorities to define and apply suitable measures to alleviate or solve the problem is not only reasonable, but, even more, is unavoidable. (…) In this context, a harmonious interpretation of the principle of budgetary equilibrium and the Social State of Law (Estado Social de Derecho) is of special importance. The Chamber warns that, for a Social State of Law to be able to persist and fulfill its constitutional and legal purposes, it becomes necessary\n\nthat sound public financial management be carried out; that is to say, there must inexorably exist a balance between entitlement rights and state economic solvency, since the former depend on the material possibilities fostered by the latter, while the purpose of the latter is to strengthen the development of a solidary political system, one in which the least favored strata of society find protection for their human dignity and their right to progress. Stated differently, the \"ideal\" Social State of Law (Estado Social de Derecho) is the \"possible\" Social State of Law, against which one acts precisely when the principle of budgetary equilibrium is breached, since, in the medium term, that seriously (sic) jeopardizes or entirely prevents obtaining the necessary resources to sustain a \"real\" Social State of Law, one which the most vulnerable can truly and effectively enjoy. (...) Corollary of the foregoing: non-observance of the principle of budgetary equilibrium has been one of the causes of the current deteriorated state of public finances, a reason that leads\n\n...to this Chamber to underscore the cross-cutting nature of said principle and to emphasize its real implementation in furtherance of the principle of the Social State of Law (Estado Social de Derecho). (…) (The emphasis is our own). There is no doubt that the fragile state of public finances has forced the country to adopt and apply unavoidable measures, such as those contained in Title IV of Law No. 9635, which are considered to contribute to achieving the balance to which the Constitutional Chamber (Sala Constitucional) refers that must exist between the constitutional principle of budget equilibrium and the Social State of Law (Estado Social de Derecho), since, in our understanding, historically such a balance has not been properly achieved due to the prevalence granted to benefit-conferring rights. And it is not that the continuous pursuit of strengthening the development of a solidarity-based political system, which is one of the principal objectives of a State like ours, is inappropriate; what is incorrect is when, in that endeavor, an aspect of reality is neglected that has to do with the existence of economic solvency to meet the demands\n\nof citizenship, especially when it concerns the most vulnerable strata. In that regard, what the Sala Constitucional stated is clear: without healthy finances, the aspirations of the Social State of Law (Estado Social de Derecho) will be nothing more than that—an aspiration. The constitutional precepts that underpin those healthy finances compel the Government to always have the purpose of satisfying the needs of the different sectors, without entailing an irresponsible increase in spending, nor diminishing certain fundamental tasks in favor of others. For this reason, while the relevance to society of the work of the State Universities is unquestionable, at the same time it is not possible to ignore the importance and the obligation that exists to comply with other basic constitutional precepts regarding Public Finance (Hacienda Pública), established in order to maintain budget balance. It is therefore a priority to reconcile those areas of constitutional protection, a task that has become more difficult in recent times as a consequence of a complicated fiscal situation. And in the same vein, it must also be noted that there is a duty to preserve the country's macroeconomic stability, since an imbalance\n\nstrongly in this matter evidently affects the fulfillment of the ends and social work of the State, which becomes contrary to the Principle of the Social State of Law (Estado Social de Derecho). The importance of achieving a balance between the principle of budget equilibrium and the Social State of Law is therefore not debatable, a task that is not to be carried out solely by the Central Government, but also requires the effort of each and every member of the Decentralized Sector, since, as the Chamber points out, this constitutional principle has a transversal character. It is therefore appropriate to recall that the object of Title IV of Ley N.° 9635 and its amendment, defined in Article 4, is the establishment of public finance management rules, in order to ensure that budget policy guarantees fiscal sustainability (sostenibilidad fiscal), understood as a Government's capacity to meet its obligations indefinitely, without explicitly falling into insolvency, cessation of payments (default), or putting its constitutional, legal, or regulatory commitments at risk. Note that in said object, reference is not made solely to the finances of the Government\n\nCentral or specific bodies and institutions of the rest of the Public Administration, fiscal sustainability (sostenibilidad fiscal) encompasses public finances as a whole and consequently, the fiscal sustainability that is proposed as an end must be achieved through a budget policy that involves all the subjects referred to in the scope of application of the law in question. III. As can be seen in the filing of the action of unconstitutionality, the arguments provided by the plaintiffs for the unconstitutionality of the already indicated articles of Law No. 9635 to be declared are centered basically on the fact that the Special Fund for Financing State University Higher Education (Fondo Especial para el Financiamiento de la Educación Superior Universitaria Estatal, FEES) possesses its own constitutional origin and regime for its setting and determination, which ordinary law cannot abolish or repeal, and on the fact that the universities possess full legal capacity to acquire rights and contract obligations, as well as to give themselves their own organization and government, within which are found the definition and approval of their National Development Plan for State University Higher Education (Plan Nacional de Desarrollo para la Educación Superior Universitaria Estatal, PLANES), as well as the formulation and approval of their institutional budgets for the\n\n... to comply with it, without the intervention of the Executive Branch or its government agencies. Regarding these arguments, which are not discussed in terms of the scope of Articles 78, 84, and 85 of the Political Constitution, it is considered that they must indeed be contextualized around the objectives of Ley N.° 9635, which should be viewed as an instrument for the development and application of the constitutional principle of budget balance (equilibrio presupuestario). The first point refers to recalling that, as the plaintiffs themselves acknowledge, it is the State that provides budgetary content to state universities (universidades estatales) so that they may fulfill their purposes and tasks, as well as their annual operational plans. That is to say, although many public entities that have resources assigned via the national budget, derived from legal and constitutional imperatives, tend to \"isolate them\" from the rest of the sums that do not have that condition, the truth is that they do not cease to be public resources obtained by the State thanks to the taxing power (potestad tributaria) that assists it. The foregoing is of utmost relevance to keep in mind, since on many occasion (sic) an attempt is made to disassociate from the critical fiscal situation.\n\nof the country, implying that this is a problem of the national budget, as if specific budget allocations did not have the same origin as those that do not have that condition. In that regard, the statement repeatedly made by the Constitutional Chamber is taken up again, to the effect that entitlements (derechos prestacionales) depend on the State's economic solvency, so the search for a balance between the two is imperative. Bearing this in mind, it must be pointed out that one of the lines of reasoning repeatedly set forth by the plaintiffs and which forcefully calls attention is that they maintain that with the application of Articles 5, 6, 11, 14, 17, 19 and 26 of Title IV of Law No. 9635 \"the state universities will be subject to the direct intervention of the Executive Branch and its government policies through the Ministry of Finance and the Budgetary Authority,\" or that in the case of the FEES, \"the operational and investment needs contained in the PLANS for the adequate development of the state universities and the fulfillment of their purposes would be annulled.\" The reason why these assertions cause bewilderment is due to the fact that, on the one hand,\n\nthe fiscal rule establishes a limit on the growth of current spending in the budgets of entities and organs of the non-financial public sector, it must be clarified that, because it is a limit, it does not mean that the growth of current spending is completely prevented, but rather that it is slowed down compared to the growth rate of recent years, to which it must be added that this cap does not currently affect capital spending, due to the debt range in which we currently find ourselves, a situation that would change if we were to reach the scenario set forth in range d) of Article 11 of Title IV of Ley N.° 9635. It is because of the foregoing that we do not share the assertion that the fiscal rule allows the Poder Ejecutivo, through the Ministerio de Hacienda, to directly intervene in the self-organization and self-governance of public universities, because although there is a limit to the growth of current spending, the composition of that spending remains the sole responsibility of the respective organ and entity subject to the fiscal rule. In the case of the statement made in\n\nin the sense that for the case of FEES, the consequence would be the annulment of the operation and investment needs contained in the PLANES, nor is it considered technically valid that without even having seen the results of the first period of application of the fiscal rule, it be asserted that this would have repercussions as serious as the annulment of the needs to which the plaintiffs refer, for which evidently no proof can be had since, as of today, it is a future event whose practical assessment can only be carried out a posteriori, as the Constitutional Chamber (Sala Constitucional) repeatedly maintains in Resolution No. 2018019511. With respect to the foregoing, it should additionally be mentioned that although the operation needs contained in the PLANES could, in principle, be seen as related to current spending, and for that reason, covered by the regulations governing the fiscal rule; a situation that would not apply in the case of investment needs, as they would be associated rather with capital spending, which, as already stated, for the moment is outside the\n\n-scope of the rule in question. IV. Another reason given by the plaintiffs to justify the sought-after declaration of unconstitutionality by omission is that “the national budget cannot detail the destination or expenditure line items for universities, but must contain a pure and simple transfer, not subject to legal conditions not foreseen nor authorized by constitutional article 85.” The foregoing deserves to be analyzed and clarified, since, as previously explained, the establishment of a limit on the growth of current expenditure does not imply an invasion by the Executive Branch of the spheres of organization and governance of the public universities; for this reason, it is not well understood what the plaintiffs are referring to when indicating that the national budget cannot detail the destination or university expenditure line items, since in the case of the transfer referred to in Article 85 of the Political Constitution, what is imperative according to budgetary technique, in accordance with the budget principles established in Article 5 of No. 8131, Ley de la Administración Financiera de la República y Presupuestos Públicos, is, among other aspects, to classify the\n\nthe type of expenditure that is proposed to be addressed with the resources in question, whether current or capital. It should be borne in mind that this type of requirements that the National Budget must address take on another dimension now that, with Law No. 9635, there must be a proper separation between one type of expenditure and the other, for the purposes of determining which one the fiscal rule does apply to. Additionally, it could not be claimed that the national budget does not comply with the requirements that the Political Constitution and the respective budgetary regulations demand of it, since regardless of to whom the transfer is directed, the truth is that these directives must be incorporated into the budgetary law in order to preserve their validity. V. Regarding the mention made by the plaintiffs that the equity (haber patrimonial) of the public universities – which includes the budgetary surplus – makes up what they call “University Treasury (Hacienda Universitaria)”, this is a concept on which it is impossible to rule, given that, as far as the Political Constitution is concerned, it only regulates the Public Treasury (Hacienda Pública) in Title XIII and to the extent (sic)\n\n...is known, nor is it a notion developed by constitutional jurisprudence, which means it does not have an origin or basis in the highest-ranking source of our legal system. Regarding the budget surplus, it is important to bear in mind that if it occurs, since it must be remembered that it is not a permanent source of funding, Article 17 of Law No. 9635 is limited solely and exclusively to the free surplus (superávit libre), the specific surplus (superávit específico) being excluded, which must be used to finance the expenses established for those resources by the respective special or legal provisions. It follows, then, that the specific surplus of public universities is not being affected by the fiscal rule.\n\nVI. As for the plaintiffs' conclusion that the exemption from the fiscal rule regime established in Title IV of Law No. 9635, in its Articles 5 and 6, is constitutionally mandatory for state universities, just as the Constitutional Chamber resolved for the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social, CCSS), in resolution No. 2018019511, it\n\nit is pertinent to recall that the CCSS as a whole is not exempt from the scope of Title IV of Law No. 9635, but only the resources it administers from the disability, old-age, and survivors’ insurance regime (régimen de invalidez, vejez y muerte) and the non-contributory regime (régimen no contributivo), this by express provision of law, and the resources of the sickness and maternity insurance (seguro de enfermedad y maternidad), because the Constitutional Chamber (Sala Constitucional) so determined in the resolution previously indicated. To the foregoing it corresponds to add that those three exclusions refer to resources whose origin – insurances with tripartite contributions – and raison d’être, have particular characteristics that do not permit extending the reasons for their removal from the application of Title IV of Law No. 9635 to other entities or bodies.\n\nVII. It is also necessary to clarify the reiterated statement made by the claimants to the effect that, by virtue of articles 11, 14 and 19 of Title IV of Law No. 9635, the state universities become subject to the direct intervention of the Executive Branch and its government policies through the Budgetary Authority (Autoridad Presupuestaria). The foregoing due to the fact that in the referred Title IV, no\n\n...assign additional powers to the Budgetary Authority (Autoridad Presupuestaria) in matters of Fiscal Responsibility of the Republic, and consequently, it would be erroneous to consider that the scope of application of the Budgetary Authority established in articles 1 and 21 of the aforementioned Law No. 8131 has been expanded by Law No. 9635 in its Title IV. It is considered that the confusion stems from the fact that in articles 19, 20, and 21 of the aforementioned Title IV, powers were granted to the Technical Secretariat (Secretaría Técnica) of the Budgetary Authority regarding the monitoring and control of the fiscal rule for entities and bodies of the Non-Financial Public Sector that are not part of the National Budget; new tasks that are not linked to those that the Technical Secretariat already had as the executive body of the Budgetary Authority, which correspond entirely to other aspects of the budgetary framework of the Public Sector, delineated by the repeatedly mentioned Law No. 8131. VIII. Another point that deserves to be explained has to do with statements by the plaintiffs regarding the “II Conference for the Budgetary Manager of the Costa Rican Public Sector” held last\n\n31 of May of 2019 and STAP-CIRCULAR-0754-2019 of 22 of May of 2019, since they again fall into inaccuracies such as asserting that those responsible for the budget formulation of the state universities were told in the indicated conference that they must submit their total expenditure budgets for the approval of the Budgetary Authority (Autoridad Presupuestaria) so that it may issue a certification of compliance with the fiscal rule; or that the certification of the Budgetary Authority will be an admissibility requirement for the presentation of university budgets before the Comptroller General of the Republic; or that the capitalizable expenditures of the state universities must correspond to projects duly registered with the Ministry of Planning. It is therefore appropriate to reiterate what was clarified in the previous point, in the sense that the Budgetary Authority has no competence whatsoever assigned by Title IV of Law No. 9635 and its amendment. Regarding the mention that the capitalizable expenditures of the state universities must correspond to projects duly registered with MIDEPLAN, the clarification must be made in the sense that in the indicated Conference, it was always kept in mind that there are entities and bodies whose\n\ninvestment projects do not have to be incorporated into the project bank of MIDEPLAN, which is why it has been indicated that in those cases, what is appropriate is for the entity to submit the suitable documents signed by the supreme head that justify the capitalizable expenses linked to investment projects, a provision that was thus defined in Article 6 of Executive Decree No. 41641-H, Regulation to Title IV of Law No. 9635, called Fiscal Responsibility of the Republic. IX. It is important to make a final reflection on the principle of budgetary equilibrium that emanates from Article 176 of the Constitution, regarding which the Constitutional Chamber in resolution No. 2018019511 states: “(…) Regardless of the degree of autonomy of each institution, our Magna Carta is clear in understanding the principle of budgetary equilibrium as a transversal axis of the legal system (…) The foregoing regulation is related to the sound management of public resources, an obligation that extends to all institutions and their officials (numeral 11 of the Political Constitution).” (The emphasis is our own) It seems appropriate with reference to that transversal application of the principle of\n\nbudgetary balance indicated by the Chamber, which goes beyond the type of autonomy held by a public institution, it is worth noting that the Legislative Assembly has already approved bill N.° 19.584, which amends Article 176 of the Political Constitution to incorporate into it the principles of fiscal sustainability and multi-year planning. Two aspects of this constitutional amendment are relevant to highlight: the first is “sustainability” as a precept that the Public Administration must foresee and apply in planning, generating, allocating, and utilizing public resources, understood as the achievement of sound institutional fiscal discipline attained through their efficient and effective management; and the second is that this precept, as well as the principle of budgetary balance, will see their scope expanded by the provision in the reform that they will be applicable to the budget of the Republic and to the budgets of the Public Administration, in a broad sense, which means it is considered that the extensive application of these guiding budgetary principles will be further strengthened, of which Title IV of Law N.° 9635 and its amendment is an important\n\ninstrument for its practical development, which must not be weakened. Conclusions I. The State must be considered as a whole, which is why the guiding principles of the Public Administration are unity and coordination of the State, hence national planning is fundamental, which is not limited to the national development plan, since it may encompass other instruments and regulations linked to State planning, such as those relating to economic planning, within which it includes tax and public spending policies that are a matter of government, among which it is appropriate to include Title IV of Law No. 9635 and its reform. For efficient coordination of the State, interaction between the Central Government and the entities and organs of the non-financial public sector, in which public universities are located, is vital. II. The precarious state of public finances forced the country to have to take and apply unavoidable measures, such as those contained in Title IV of Law No. 9635 and reform, to contribute to achieving the balance that must exist between the\n\nconstitutional principle of budgetary equilibrium (principio constitucional de equilibrio presupuestario) and the Social State under the Rule of Law (Estado Social de Derecho); since without healthy finances, the aspirations of the Social State under the Rule of Law will remain merely a desire. The purpose of Title IV of Law No. 9635 and its reform, defined in its Article 4, does not encompass solely the finances of the Central Government, but rather views them as a whole and, consequently, the fiscal sustainability (sostenibilidad fiscal) that is proposed as an end must be achieved through a budget policy that involves all subjects referred to in the scope of application of the aforementioned law. III. The scope of Articles 78, 84, and 85 of the Political Constitution must be contextualized around the objectives of Law No. 9635, which must be viewed as an instrument for the development and application of the constitutional principle of budgetary equilibrium. The fiscal rule (regla fiscal) establishes a limit on the growth of current spending (gasto corriente) of the budgets of the entities and bodies of the non-financial public sector, which does not entirely prevent the growth of current spending and does not currently affect capital spending (gasto de capital), due to the debt range in which currently\n\nin which we find ourselves, a situation that would vary should the scenario set forth in range d) of Article 11 of Title IV of Law N.° 9635 be reached. For the foregoing reason, the impossibility is maintained that with said rule, the Executive Branch, through the Ministry of Finance, could directly intervene in the internal organization and governance of public universities or that the operational and investment needs contained in the PLANES could be annulled, as the plaintiffs assert. An assertion that cannot even be substantiated, since it could eventually only be demonstrated a posteriori.\n\nIV. In the case of the transfer referred to in Article 85 of the Political Constitution, by budgetary technique it is imperative in accordance with the budgetary principles established in Article 5 of N.° 8131, the Financial Administration of the Republic and Public Budgets Law (Ley de la Administración Financiera de la República y Presupuestos Públicos), to classify the type of expenditure that is proposed to be addressed with the resources in question, as current or capital (corriente o de capital); a classification now also required for the verification of compliance with the Fiscal Rule (Regla Fiscal).\n\nV. The concept of “University Treasury (Hacienda Universitaria)” does not\n\n...is found in our Political Constitution, which only regulates the Public Treasury in Title XIII. With regard to the budget surplus (superávit presupuestario), the specific surplus (superávit específico) of the public universities is not being affected by the Fiscal Rule (Regla Fiscal). VI. The assertion that it is constitutionally mandatory for the state universities to be excluded from the fiscal rule (regla fiscal) regime, as the Constitutional Chamber (Sala Constitucional) resolved for the Caja Costarricense de Seguro Social, is considered unfounded when bearing in mind that the Caja as a whole is not exempt from the scope of Title IV of Law No. 9635 and that the resources it administers, which were indeed excluded from the referenced rule, have a particular origin and purpose (razón de ser) that do not permit the reasons for their exoneration to be extended to other entities or bodies. VII. Title IV of Law No. 9635 does not confer any additional competence on the Budgetary Authority (Autoridad Presupuestaria) related to the matter of Fiscal Responsibility of the Republic (Responsabilidad Fiscal de la República) and, consequently, the entity that does have attributions in matters of monitoring (monitorio) and control of the fiscal rule (regla fiscal) in the defined scope,\n\nis the Technical Secretariat of the Budgetary Authority, by mandate of Articles 19, 20 and 21 of said Law. VIII. Article 6 of Executive Decree No. 41641-H, Regulation to Title IV of Law No. 9635, called Fiscal Responsibility of the Republic, regulates the capitalizable expenses that are linked to investment projects, bearing in mind the distinction between the entities and bodies that are obligated to have projects registered in the Public Investment Project Bank of MIDEPLAN, and those that do not have to comply with that legal imperative. IX. It is considered that the cross-cutting application of the principle of budgetary balance upheld by the Constitutional Chamber in resolution No. 2018019511 and which goes beyond the type of autonomy held by a public institution, will be reinforced with the incorporation into the Political Constitution of the amendment already approved in the legislative branch of Article 176 of the Political Constitution in order to include the principles of fiscal sustainability and multi-annuality, thereby resizing the scope of application of the constitutional norm, by extending it to the budgets of the\n\nPublic Administration, in a broad sense. Petition 1. Reject the petitioners' request that the unconstitutionality by omission of Articles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Ley N.° 9635 and its reform of December 3, 2018, be declared, on the grounds that they do not violate Article 85 of the Political Constitution by failing to exempt the Special Fund for Higher State University Education (FEES) from compliance. 2. Reject the petitioners' request that the unconstitutionality by omission of Articles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Ley N.° 9635 and its reform of December 3, 2018, be declared, on the grounds that they do not violate Articles 84 and 85 of the Political Constitution by failing to exempt the formulation of state university budgets from compliance.”\n\n5.- By brief incorporated into the digital case file (expediente) on July 30, 2019, Marta Eugenia Acosta Zúñiga appears in her capacity as Comptroller General of the Republic. She explains the following: “CHALLENGED NORMS The petitioners challenge, by omission, Articles 5, 6, 14,\n\n17, 19, and 26 of Title IV of the 'Public Finance Strengthening Law' (Law No. 9635 of December 3, 2018) (hereinafter Law No. 9635), which provide as follows: \"ARTICLE 5- Scope of Application/ The fiscal rule shall be applicable to the budgets of the entities and bodies of the Non-Financial Public Sector.\" \"ARTICLE 6- Exceptions/ The following institutions are exempt from the coverage scope of this title: a) The Costa Rican Social Security Fund (CCSS), solely with regard to the resources of the disability, old age, and death (IVM) regime and the non-contributory regime administered by said institution. b) Any public enterprise that participates directly in any activity open to the competition regime, but only in relation to said activity. This rule shall cease to apply when the enterprise requests a financial bailout from the Executive Branch or when its debt-to-assets coefficient exceeds fifty percent (50%). c) The Costa Rican Petroleum Refinery (Recope) solely with regard to the petroleum invoice.\" \"ARTICLE 11- Debt Ranges That Must Be Considered for\n\ndetermine the growth of current expenditure/ The current expenditure of the budgets of the entities and bodies of the Non-Financial Public Sector shall grow according to the following parameters of Central Government debt (sic): a) When the debt at the close of the budget year prior to the year of application of the fiscal rule (regla fiscal) does not exceed thirty percent (30%) of GDP, or the Central Government current expenditure-to-GDP ratio is seventeen percent (17%), the year-on-year growth of current expenditure shall not exceed the average nominal GDP growth. b) When the debt at the close of the budget year prior to the year of application of the fiscal rule is equal to or greater than thirty percent (30%) of GDP, but less than forty-five percent (45%) of GDP, the year-on-year growth of current expenditure shall not exceed eighty-five percent (85%) of the average nominal GDP growth. c) When the debt at the close of the budget year prior to the year of application of the fiscal rule is equal to or greater than forty-five percent (45%) of GDP, but less than sixty percent (60%) of GDP,\n\nthe interannual growth of current spending shall not exceed seventy-five percent (75%) of the average nominal GDP growth. d) When the debt at the close of the budget year preceding the year of application of the fiscal rule is equal to or greater than sixty percent (60%) of GDP, the interannual growth of total spending shall not exceed sixty-five percent (65%) of the average nominal GDP growth.”\n\n“ARTICLE 14. Publication of the fiscal rule scenario / The Ministry of Finance shall communicate the current spending growth rate resulting from the fiscal rule calculation, using the official figures for debt and average GDP. This rate shall be communicated jointly with the budget guidelines and shall be applied in the formulation of the budget for the following year. In the event that the Ministry of Finance does not communicate the current spending growth rate, it shall be assumed that the corresponding rate applicable to the budget year shall be the rule from the current scenario.”\n\n“ARTICLE 17- Destination of the free surpluses generated by the application of the rule / In the event that public entities\n\nhave liabilities generate a free surplus at the end of the budget exercise, this shall be used to amortize its own debt. In the case of the free surplus generated by entities that receive transfers from the national budget as a consequence of the application of the fiscal rule, such surplus must be returned to the national budget in the year following the one in which said surplus was generated, to be used in debt amortization or in public investment.” “ARTICLE 19- Compliance with the fiscal rule during the formulation and budgeting stages/ The Ministry of Finance (Ministerio de Hacienda) shall make the budget allocation of the budget titles that make up the Central Administration in full compliance with the provisions of this law and in Law No. 8131, Financial Administration of the Republic and Public Budgets (Administración Financiera de la República y Presupuestos Públicos), of September 18, 2001. The National Budget Office (Dirección General de Presupuesto Nacional) shall verify that the budget modifications and extraordinary budgets comply with the provisions of article 11 of this law and in Law No. 8131. In the event that said modifications imply non-compliance with the rule established herein, this Office\n\n...must apply the provisions of Article 177 of the Political Constitution, and shall inform the Minister of Finance and the President of the Republic. In the case of resources for deconcentrated bodies, the Minister of Finance shall decide, based on criteria of fiscal sufficiency, respect for fundamental rights, and following the priorities of the National Development Plan, the amount to be budgeted for these bodies and their growth. The rest of the entities of the Non-Financial Public Sector must prepare their ordinary and extraordinary budget and budget modifications in full compliance with the provisions of Article 11 of this law. Verification of compliance with this rule shall be the responsibility of the Contraloría General de la República, which shall consider, for purposes of the legality review it performs, the certification to be issued by the Secretaría Técnica de la Autoridad Presupuestaria regarding compliance with the fiscal rule. In the event that the Secretaría Técnica de la Autoridad Presupuestaria certifies a breach of the fiscal rule by entities of the Non-Financial Public Sector, the Contraloría General de la República shall assess that certification and\n\n...will resolve what is appropriate. To address the provisions of this regulation, the entities of Article 5 of this law, whose budget is subject to approval by the Contraloría General de la República, must submit a copy of their ordinary budgets, extraordinary budgets, and budget modifications (modificaciones presupuestarias) to the Secretaría Técnica de la Autoridad Presupuestaria. The Secretaría Técnica de la Autoridad Presupuestaria will verify that the budget modifications and extraordinary budgets of the entities of the rest of the Non-Financial Public Sector (Sector Público no Financiero) comply with the provisions of Article 11 of this law. Should situations arise that could lead to non-compliance with the rule, the Secretaría Técnica de la Autoridad Presupuestaria must inform the Contraloría General de la República for the appropriate action. Likewise, the entities of the Non-Financial Public Sector will send a copy of their quarterly executions and their budget settlement (liquidación presupuestaria) to the Secretaría Técnica de la Autoridad Presupuestaria. The Secretaría Técnica de la Autoridad Presupuestaria must communicate the results of the verifications stipulated in this regulation, in accordance with the following deadlines, no later than the last business day of October of each year\n\nfor the review of initial budgets and within a period of ten business days, counted from the receipt of the corresponding budget document for extraordinary budgets and modifications: \"ARTICLE 26- Sanctions/ The unjustified non-compliance with the fiscal rule and its control constitutes a serious offense against the Public Treasury, and shall be sanctioned according to what is indicated in article 68 of Law No. 7428, Ley Orgánica de la Contraloría General de la República, of September 7, 1994. The foregoing, without prejudice to the provisions of article 339 of Law No. 4573, Código Penal, of May 4, 1970. It corresponds to the Asamblea Legislativa to proceed against the contralor and the subcontralor general de la República who fail to comply with their duty to duly control compliance with the fiscal rule, under the terms established by article 43 of Law No. 7428, and considering the provisions of Law No. 8292, Ley General de Control Interno, of July 31, 2002.\" REGARDING THE ALLEGATIONS OF THE CLAIMANTS The acción de inconstitucionalidad\n\n…is raised, fundamentally on two axes; the first, which is configured in the object of the action, refers to the subjection of the fiscal rule to state universities; this by virtue of the provisions in Title IV, numeral 5 of Law No. 9635; an application that has as a consequence the provisions in numerals 6, 11, 14, 17, 19, and 26 of the same title; the second axis refers to the subject of the action, as it is alleged that by the application of the rule in the terms set forth in said numerals, state universities become subject to the Executive Branch - Ministry of Finance, through the Technical Secretariat of the Budgetary Authority - numeral 19 of Law No. 9635. The foregoing, they consider, injures university autonomy, which is distinct from that of the rest of the decentralized entities regulated by articles 188 to 190 of the Political Constitution; whereas, in the terms of constitutional article 84, they enjoy independence for the performance of their functions and full legal capacity to acquire rights and contract obligations, as well as to establish their own organization and government;\n\n…added to the fact that the State, according to the same provision, provides them with their own assets and collaborates in their financing. To address the audience granted, we will first deal with the configuration of the fiscal rule (regla fiscal) in the country's economic context and the reasons supporting the adoption of this type of measures in the Public Administration; subsequently, we will analyze university autonomy (autonomía universitaria), which cannot override the application of the fiscal rule (regla fiscal), which is a matter of public management, which will also allow the analysis of the plaintiffs' arguments and their inadmissibility under the terms of the constitutional challenge they formulate. Finally, the reasons why this Contralor body considers that the challenged norms do not conflict with the Political Constitution (Constitución Política), but rather are necessary and pertinent to make effective the constitutional provisions and to achieve the tasks derived from the fundamental regulations, will be set forth.\n\n**III. ON THE FISCAL RULE (REGLA FISCAL) IN THE COUNTRY'S CURRENT ECONOMIC AND FINANCIAL CONTEXT.**\n\n**3.1. Macroeconomic and fiscal context.** The statement of grounds (exposición de motivos) of the legislative bill for Law No.\n\nemphasis on the deteriorated fiscal situation the country faces, which is due to structural problems in public finances. As indicated, the fiscal deficit has persisted over the last three decades, intensifying in recent years. The foregoing, due to factors such as the stagnation of the tax burden and exemptions, and in the specific case of expenditures, as noted, the greatest difficulty has been the creation of new expenses without establishing their financing source. Thus, within the current macroeconomic and fiscal context, the application and compliance with the fiscal rule established in Title IV of Ley Nº 9635, takes on special relevance to guarantee, in the medium and long term, the country's fiscal sustainability. The foregoing, insofar as the external macroeconomic situation, characterized by downward estimates in world economic growth by the International Monetary Fund and the World Bank, as well as the marked economic slowdown shown by the national economy, synthesize reserved growth projections for the country, with the consequent impact on the\n\nin relation to the evolution of Central Government revenues and the tax burden. Hence, the country's fiscal situation continues to be the main internal risk to macroeconomic stability. Within the current fiscal situation, the most recent indicators show that the deterioration of public finances continues. According to figures from the Ministry of Finance, as of June 2019, the Central Government recorded a financial deficit of 2.99% of GDP, 0.13 percentage points higher than that recorded in June 2018, which is mainly associated with the increase in interest payments. For its part, the primary deficit showed a slight improvement of 0.03 percentage points, going from 1.14% of GDP in June 2018 to 1.11% of GDP in June 2019. According to the Central Bank (BCCR), at the close of 2019, the financial deficit is estimated to be around 6.2% of GDP, the highest in Central America, followed by Guatemala, whose financial deficit is estimated at 3.1% of GDP for 2019. Regarding Central Government revenues, according to figures from the Ministry of Finance,\n\nthese show a growth of 7.91% as of the month of June 2019 with respect to the same period of the previous year, and of 7.37% for tax revenues (ingresos tributarios), which is explained almost entirely by the tax amnesty (amnistía tributaria) contemplated in Law No. 9635. If the effect of the amnesty is excluded, the year-over-year variation of tax revenues is 0.93%. This situation is due to the generalized loss of dynamism in the economy. Given the insufficiency of current revenues to meet the expenses contemplated in the Budget of the Republic (Presupuesto de la República), the Government finds itself in the need to resort to the placement of securities (títulos valores) (internal debt), which is reflected in the case of the year 2019 in a growth of net internal financing (financiamiento interno neto) of 12.6% with respect to June 2018. In 2019, 53.8% of the expenses of the Budget of the Republic will be financed with indebtedness. On the side of Central Government expenses, these grew 9.35% in the same period, driven mainly by the payment of interest, which grew 17.95% in the first semester of the year.\n\nGiven the Government's level of debt, interest expense is expected to continue growing rapidly in the coming years. As can be seen in the following chart, the Central Government's expenditure growth continues to outpace revenue growth. This is reflected in the widening of the gap between current revenues and expenditures, which at the close of 2018 was 4.6% of GDP (¢1.6 trillion colones) and for 2019, based on budgeted figures, could reach up to 6.6% of GDP (around 2 trillion colones). (…) All of the foregoing implies that the fiscal adjustment necessarily requires a containment of current expenditure growth, with the fiscal rule being the main tool to achieve this objective. Without adjustments in current expenditure growth, a direct consequence will be an increase in indebtedness to levels that further compromise sustainability in the future provision of public goods and services; moreover, in general, it could pose a risk to the viability of the Social and Democratic State model\n\nLaw, with direct consequences for the citizenry, and particularly for vulnerable populations that depend greatly on state subsidies. In the graph shown below, it can be seen that the current level of indebtedness exceeded the sustainability limit since 2018, surpassing the so-called natural debt limit. For the year 2019, the BCCR estimated that the debt balance would reach 57.7% of GDP and 60.4% of GDP in 2020. It is pertinent to indicate that even with the application of the fiscal rule provided for in Title IV of Ley Nº 9635, the level of indebtedness would continue growing for several periods until reaching stabilization and a gradual descent. However, according to the estimate made by this Contraloría General de la Repúblic—without fiscal rule—, the increase in the level of indebtedness could reach 5 points of GDP in 2023 and up to 17 points in 2033. This demonstrates the enormous importance of applying the fiscal rule for the containment of debt growth. Given the conceptualization of the fiscal rule contemplated in Title IV of Ley Nº 9635, the\n\nwhich defines its scenarios based on the debt/GDP ratio of the Central Government, the stabilization of the debt is of utmost relevance for defining less restrictive scenarios in operating expenses. Furthermore, although Law Nº 9635 includes measures regarding revenues (reform to the income tax and value-added tax, VAT), and important changes in the Public Administration Salary Law, these measures are not sufficient to correct, in the short term, the speed of growth in current expenses according to the projections made during the discussion of the bill processed under expediente No. 20580. In addition to the above, while the Central Government registers the largest financial deficit, while other sectors have a deficit of lesser magnitude, or are in surplus, it must be kept in mind that some institutions -including state universities- depend largely on the financing provided to them by the National Budget, so the level of indebtedness of the Government is not an unrelated problem, nor is it located far from its scope of action. In this sense, a natural doubt is\n\nhow much the Government must go into debt to be able to meet these transfers. The CGR has insisted on various occasions on the need to exercise greater control over the transfers made by the Central Government to the rest of the public sector. If the primary result is disaggregated, it is seen that the Primary Surplus from the own operations of the institutions that make up the Central Government increased in recent years, while the primary deficit generated by the transfers assigned to the decentralized sector within the Central Government (net subventions) has been growing (see following table). This surplus in the Government's own operations has even exceeded the payment of interest, which would have allowed the stabilization of the debt level. In addition to the above, the correlation coefficient between transfers and the financial deficit is 0.93; which means that without changes in their behavior, the fiscal adjustment will not be sufficient until greater control is exercised over said transfers. (...) If transfers are disaggregated according to their institutional and economic classification, the resources transferred to Local Governments and Institutions\n\nNon-Business Decentralized Institutions (Instituciones Descentralizadas no Empresariales), among which are the state universities, have significantly increased, and in particular the transfers earmarked for current expenditure. For all of these reasons, it is evident that this constitutes an unsustainable trajectory unless adjustments are made in the Government's own operations, or else, regulatory changes such as those introduced in Ley Nº 9635. 3.2 Concept and Purpose of the Fiscal Rule Fiscal rules influence, in the medium term, stability in public finances and economic growth; that is, they ensure the fiscal sustainability of the government by containing public expenditure and macroeconomic stability, limiting spending growth during expansionary phases of the economic cycle (IDB, 2013. IMF, 2009. García, 2012). The fiscal discipline generated by fiscal rules constitutes one of the greatest benefits obtained by economies with a low level of confidence on the part of economic agents. According to Schaechter, Kinda (2012)16, there are fundamentally four types of fiscal rules, namely: 1. Rules\n\ndebt; they are established from a limit on debt as a percentage of GDP. 2. Budget balance rules: they directly limit variables that influence the debt limit and grant greater fiscal control to policymakers. 3. Expenditure rules: they establish limits on primary, current, or total expenditure. 4. Revenue rules: they set ceilings or floors on revenues and are aimed at boosting tax collection and/or preventing an excessive fiscal burden. In this case, the fiscal rule defined in Title IV of Law No. 9635 corresponds to an expenditure rule, since a limit is established on the growth of current expenditure subject to a proportion of the average nominal GDP growth and the Central Government debt-to-GDP ratio. This parameter was chosen because the Central Government's debt over the years has originated mainly from the growth of current expenditure above current revenues. It is designed so that as the debt/GDP ratio increases, the restriction on the growth of current expenditure becomes greater.\n\nConversely, at a debt level considered sustainable in the medium and long term, current spending may grow at the same rate as GDP growth. Thus, Article 11 of Law No. 9635 establishes the debt ranges that must be considered to determine the limit on the growth of current spending. The objective of establishing the aforementioned fiscal rule (regla fiscal), as indicated in Article 4 of Title IV of the cited law, is to establish public finance management rules, in order to achieve a budgetary policy that guarantees fiscal sustainability. Thus, in addition to establishing the fiscal rule, Title IV incorporates provisions of fiscal responsibility that must be jointly complied with to achieve the stated objective, as is the case of Articles 15, 16, and 17, the latter referring to the return of the free surpluses (superávits libres) generated by the application of the rule in the case of resources granted through the national budget. The establishment of the fiscal rule seeks to moderate the behavior of current spending by linking it\n\nto the growth of production, thus stabilizing and reducing the level of indebtedness in the medium term, while safeguarding the growth of public investment, which would end up being limited in the most burdensome scenario of the rule. Furthermore, it is pertinent to consider that the stabilization of debt has positive effects on the economy in general. Now, in order for the fiscal rule (regla fiscal) to fulfill its objective and produce the expected effects, the commitment and fiscal discipline of all actors who administer public funds is required. On this point, it is important to note that, in accordance with article 5 of Law No. 9635, the fiscal rule is applicable to the budgets of the entities and bodies of the Non-Financial Public Sector (Sector Público no Financiero). Likewise, article 6 of Law No. 9635 establishes the exceptions to its scope of application, among which are the Caja Costarricense de Seguro Social, with regard to the resources of the disability, old age, and death regime (régimen de invalidez, Vejez y muerte, IVM) and to\n\n...of the non-contributory regime (régimen no contributivo) administered by said institution—with the Constitutional Chamber (Sala Constitucional) noting, through resolution Nº 19511-2018, that sickness and maternity insurance could also be excluded by provision of articles 73 and 177 of the Political Constitution—, public enterprises that participate directly in any activity open to the competition regime, but only in relation to said activity, and the Costa Rican Petroleum Refinery (Refinadora Costarricense de Petróleo, Recope) in what corresponds to the petroleum invoice. On this matter, the Constitutional Chamber, in resolution Nº 19511-2018, indicated that “… the Public Powers must act in accordance with the limits established in article 176 of the Political Constitution, from which three basic principles in budgetary matters derive: 1- budget balance (equilibrio presupuestario), 2- budget annuality (anualidad presupuestaria), and 3- necessary content of the budget (see ruling n. 1999-003771 of 7:51 hours on May 19, 1999). Now, said norm, when it establishes that “in no case may the amount of the budgeted expenses exceed that of the probable revenues”, highlights the requirement that all revenues included in the budgets have economic content.\n\n…nor is it a true, real, and effective one; in fact, the Contraloría General de la República must certify the fiscal effectiveness of the new taxes or the yield of the financing obtained from the internal market, in accordance with constitutional ordinal 179. The foregoing implies a limit on the right of amendment of the Asamblea Legislativa in the Ley de Presupuesto project, and a guarantee to make effective the principle of budget balance, which seeks to avoid an indiscriminate increase in expenses through the creation of uncertain or eventual revenues. In this sense, the fiscal rule adopted in the legislative project in question — whose mere technical convenience does not constitute a doubt susceptible to being resolved through the constitutional avenue — aims to rationalize public spending for the sake of the financial sustainability of the State and, therefore, the economic stability of the country: for this reason, far from contradicting the Constitution, it is instead in accordance with the principle of budget balance and, consequently, with the Fundamental Law.” (the\n\nRegarding that highlighted section. In this regard, with respect to section 176 of the Political Constitution, it is important to highlight that on May 29 of this year, the Legislative Assembly approved Law 9696, called “Addition of a first paragraph and reform of the third paragraph of article 176 of the Political Constitution of the Republic of Costa Rica (Principles of fiscal sustainability and multiannuality)”, through which the constitutional rank held by the principles of the sustainability of public services and the multiannual budgeting (plurianualidad) framework is reinforced and accentuated, which must be observed by the “Public Administration in a broad sense”, within which the universities are included. Thus, the principle of fiscal sustainability (sostenibilidad fiscal) has a clear constitutional rank and implies the duty to conduct oneself in a transparent and responsible manner, and the Public Administration—including state universities—must observe this precept when planning, generating, and utilizing public resources. To achieve said sustainability, multiannual budgeting is constituted as a useful instrument, which will be materialized in plans and budgets that permit and facilitate the distribution\n\nof the institutions' resources over a period greater than one year. In this regard, it is pertinent to note that, in a comprehensive analysis of public spending efficiency, limiting the growth of current expenditure does not necessarily imply a detriment to the institutions, but rather provides an incentive for them to carry out more efficient and realistic budgeting of their expenses; which coincides with the principles of transparency, responsibility, and sustainability of public management, as well as the multi-year budgeting framework, as reflected in the recent reform to Article 176 of the Constitución Política.\n\n**IV APPLICATION OF OTHER FISCAL RULES TO STATE UNIVERSITIES**\n\nIn Costa Rica, the issue of fiscal rules and their application to public universities is not new. In this respect, it is worth noting constitutional Article 176, which provides: \"The ordinary budget of the Republic includes all probable revenues and all authorized expenditures of the public administration, during the economic year. In no case may the amount of budgeted expenditures exceed that of probable revenues. The Municipalities\n\n...ities\" and the autonomous institutions shall observe the previous rules to approve their budgets (...)” (emphasis added). The aforementioned constitutional norm includes the principle of financial equilibrium as a fiscal rule, whose scope over all autonomous institutions also includes the universities. In this way, a budgetary balance of the Public Treasury is sought, from which said state higher education centers are not excluded. In this regard, it should be noted that the application of the indicated fiscal rule is consistent with the spirit of the original constituent, since the wording of this norm originally discussed established: “The municipalities and the Autonomous Institutions shall be governed by special budgets, which must also adhere to the previous rules,” this latter in clear reference to the rule of financial equilibrium previously indicated. (see Minutes No. 162 pp 418, Minutes of the National Constituent Assembly of 1949). On the other hand, the Law of the Financial Administration of the Republic and Public Budgets, No. 8131 (hereinafter LAFRPP), in its article 6 also includes an additional rule, which is equally\n\napplication for the case of state universities. This provision refers to the financing of current expenses and establishes to that effect: \"For the purposes of sound financial management, current expenses may not be financed with capital income.\" Thus, this provision establishes the premise that prevents financing current expenses with capital income, an aspect aimed at ensuring the sustainability of fiscal accounts, a budgetary principle applicable to the entire public sector. In the same vein, section 4 of Law No. 6955 \"Ley para el Equilibrio Financiero del Sector Público\" stipulates that current expenses may only be financed with current income. Likewise, section 22.9 of the Normas Técnicas sobre Presupuesto Público (R-DCQ4-2012), which are to be observed by institutions whose budget is approved by the Contraloría General de la República, indicate—among other things—that \"current expenses may not be financed with capital income, except in cases duly authorized by the legal system.\" In the specific case of public universities, the application of the rule established in article 6 of the LAFRPP and\n\nin the Technical Standards on the Public Budget (Normas Técnicas sobre Presupuesto Público), is of mandatory compliance (acatamiento obligatorio), as has been indicated by this Office of the Comptroller General of the Republic (Contraloría General de la República). Based on the foregoing, it was made clear in the Official Communication (Oficio) that concerns us the following: “… they must take into account what is indicated in Circular 3924 of April 21, 2004, from this Office of the Comptroller General (Contraloría General) and in the document “Operational Standards and Criteria for the Use of Budgetary Classifiers of the Public Sector” (Normas y criterios operativos para la utilización de los clasificadores presupuestarios del sector público), since the principles referred to in subsection d) of article 1 of the Law of the Financial Administration of the Republic and Public Budgets (Ley de la Administración Financiera de la República y Presupuestos Públicos), No. 8131, encompass both the statements in article 5 and in article 6 of said normative body. The foregoing does not affect university autonomy, since the scope of autonomy does not prevent the application of those general rules that are not related to the internal regulation of the\n\nIn this way, it is insisted that the implementation of fiscal rules is not novel, whose scope also extends to public universities, which have had to adjust according to the particularities of each case. V IMPACT DUE TO THE APPLICATION OR NOT OF THE FISCAL RULE CONTEMPLATED IN Law Nº 9635 ON STATE UNIVERSITIES 5.1 Analysis of the impact of the fiscal rule on public universities. Regarding the impact of the fiscal rule established in Title IV of Law Nº 9635 on state universities, the CGR, as part of its constitutional and legal attributions, in the month of February of the current year issued report Nº DFOE-SOC-OS-OOOI2019, called “Desafíos en la creación de Valor Público de las Instituciones de Educación Superior” 18, which synthesizes the main challenges faced by state universities. This report incorporated a projection of current revenues (ingresos corrientes) and current expenditures (gastos corrientes) of these institutions, considering the fiscal rule established in Title IV of Law Nº 9635. Now\n\nfor the purposes at hand, the main results of the cited report were adjusted with the most recent information available, based on the referred study conducted by the Contraloría General in the IES (Instituciones de Educación Superior). It should be noted, firstly, that current expenditures (gastos corrientes) between 2014 and 2018 represented between 86% and 92% of the total expenditure of the IES, as can be seen in the following graph (…) The trend of current expenditure (gasto corriente) of the IES in the event that the fiscal rule (regla fiscal) is not applied (green line) and in the event that the fiscal rule (regla fiscal) is applied (blue line), can be visualized in the graph presented below: (…) Thus, the application of the fiscal rule of Ley Nº 9635 implies an average annual difference in the current expenditure of the IES of approximately ¢32,250 million for the 2020-2025 period, which is equivalent to 0.4% of the projected GDP for the year 2025. For the year 2020 alone, the savings is estimated at ¢8,567 million; an amount that would be sufficient to finance the budget of the Ministerio de Vivienda y Asentamientos Humanos, which\n\nallows the impact of the measure to be contextualized. Regarding the behavior of current income, FEES stands out as the main source of income for state universities. As can be seen in the following chart, the Fund represents between 70% and 83% of the adjusted current income of the IES. (…) In accordance with the above, and given the validity of Law No. 9635, it is possible to assume that the growth perspective of the current income of the IES will be framed within moderate variations that do not exceed inflation levels. This situation reflects smaller increases compared to current income if the growth trend of said income shown in the 2010-2018 period were to continue, as shown in the following chart: (…) Jointly, when analyzing the institutional capacity to cover current expenses with current income, based on the projections made, it is shown that by 2025 both items would be about to intercept, as observed in the following chart: (…) This means that there is a risk that even under the application of the\n\n...fiscal rule (regla fiscal), the HEIs may face difficulties in the medium term in maintaining the balance between their current revenues and expenditures, which could make it necessary to apply additional measures to contain spending and/or increase other revenues that supplement the transfers they receive from the Central Government—a recommendation that the CGR had already made in the aforementioned report No. DFOE-SOC-OS-0001-2019, which indicated that the financial solvency of the HEIs will depend largely on how they adopt reforms to increase the efficiency and quality of spending as well as the current revenues from transfers, which are their sole responsibility and management. Complementarily, it must be taken into consideration that the HEIs have not executed all of the resources allocated in the most recent budget years, a situation that has been growing over the period analyzed. In this sense, when analyzing the source of income \"Financing,\" it is composed basically of resources from prior years (free and specific surplus (superávit libre y específico)), which represented between 98% and 100% of this source of income in the 2013-2018 period, and increased by an average of 20.3%\n\n...annual in that period. As can be seen in the graph shown below, the resources from prior budget periods (vigencias anteriores) went from ¢77,050.09 million to ¢194,030.48 million between 2013 and 2018. (...) It is important to point out that this source of financing, by definition, presents restrictions on its use to finance current expenditures (for example, remuneration), since financing with free surplus (superávit libre) cannot be permanent and the specific surplus (superávit específico) presents legal or special restrictions that limit its destination to a specific purpose. It is necessary to consider the above data, given the limitation of public resources and in view of future negotiations of FEES resources; because they show that the state universities have more income than they require to cover their expenses. In addition to the foregoing, it should be highlighted that the effectiveness of fiscal rules (reglas fiscales) depends to a large extent on their credibility and the scope required to achieve their purpose. That is why, in relation to the legal regulations (normativa legal) being discussed here, it is essential that the scope of coverage (ámbito de cobertura) provided by the legislator be maintained, since otherwise the effect would be limit\n\ndesired in the application of the fiscal rule and would obligate other institutions to bear the consequences of the planned adjustment. **5.2 Impact on the National Budget if Universities Do Not Submit to the Fiscal Rule** The state universities are largely financed with resources transferred to them by the Central Government. According to the information that the universities record in the System of Information on Plans and Budgets (Sistema de Información de Planes y Presupuestos, SIPP) of the CGR, in 2018 the transfers from the Central Government represented 68% of the income of the state universities. The second most important income category is constituted by the specific and free surplus, whose origin is also derived in part from the transfers granted to them by the Central Government. It is pertinent to point out that the FEES does not constitute the sole state contribution to higher education. In accordance with current regulations, transfers for operating expenses are included, a contribution to the UCR for the Mathematical Olympiad (Ley Nº 8152) and the loan signed with the World Bank for the Higher Education Improvement Project (Ley N º 9144) is under execution. For this\n\nthat the state contribution to higher education has even exceeded 1.7% of GDP in previous periods. For 2019, this contribution is estimated at 1.54% of GDP. (…) On average, during the 2014-2018 period, the state contribution to higher education represented 8.7% of the Central Government's current expenditures and 23.2% of the MEP's current expenditures. Indeed, for 2018, the state contribution to higher education surpassed the amount executed in the technical and academic secondary education subprograms combined by 435,974 million. This demonstrates the relative importance of funding for state universities within the Central Government's education expenditure structure. For reference, and with the aim of considering the possible impact that the fiscal rule incorporated in Ley Nº 9635 would have on the current expenditure of state universities, an exercise was carried out to assess the effect that said rule would have had in past fiscal years. Thus, as shown in the following table, the universities as a whole (UCR, UNA, UNED, TEC and UTN), whose economic reality is far different from that present in the rest of the\n\nof the public sector, given that it has had much higher growth rates of spending, considering the levels of execution of current spending for the 2015-2018 period, they would have complied with the fiscal rule (regla fiscal) in 2019, had it been in force. (...) By way of example, considering the average levels of execution of current spending in the 2015-2018 period, had the fiscal rule (regla fiscal) been in force for 2019, the state universities would comply with the fiscal rule in this fiscal year, with a decrease in current spending of approximately ¢12,000 million less compared to the execution observed in 2018, this amount is equivalent to 61% of the initial budget of the National Council for the Elderly (Consejo Nacional para la Persona Adulta Mayor, CONAPAM) for 2019, 1.7 times the budget of the Ministry of Housing and Human Settlements, or 1.6 times the initial budget of the Ministry of Foreign Trade. Excluding trusts, Local Government entities other than municipalities (such as Cantonal Sports and Recreation Committees) and public financial institutions, 134 institutions presented initial budgets lower than that amount. Prospectively, the non-compliance or exception in the application of the fiscal rule (regla fiscal) for public universities implies a greater\n\nrigidity in the Budget of the Republic—which includes the Budget of the Judiciary—since it indirectly considers the flow of all state contributions to higher education, meaning that the adjustment of current expenditure in the Government would necessarily have to be made in other current expenditure items, which would \"overload\" part of the fiscal adjustment onto other sectors. In summary, the fulfillment of the purpose of the fiscal rule depends greatly on the participation of all actors, so it is key for fiscal sustainability that the scope of coverage of the legal norm is not undermined. The contrary, its exclusion, would bring about a series of aspects that we briefly list below: In the first instance, it is equivalent to ignoring that its financing depends largely on the resources transferred to them by the Central Government, and therefore the financial situation of the latter is not unrelated to them, while the expenditure decisions made by the state universities may represent a contingent liability for the Central Government, meaning that fiscal discipline and efficiency in the use of resources constitute sound\n\nextensive Public Finance practices to the entire Public Administration; additionally, moderating the growth of current expenditure (gasto corriente) and the return of generated surpluses to amortize Government debt has a positive effect on public finances in general and on the country's macroeconomic stability, these macro objectives being highly desirable. This situation has already been pointed out by the CGR in its 2013 Annual Report. Secondly, the participation of all actors, including the IES, is necessary to achieve the expected effect of the fiscal rule (regla fiscal), giving content to the constitutional principle of financial sustainability. The limit on the growth of current expenditure that the rule imposes has the purpose of stabilizing the growth of debt, in addition to minimizing the probabilities that unsustainable expenditure expansions will occur in the future, impacting the quality of life of people and affecting the future provision of public services. As a third point, the non-participation of the institutions of the Non-Financial Public Sector in the fulfillment of the fiscal rule—with the exceptions that the law establishes—would undermine the expected performance of this\n\nand fiscal measure. This is particularly critical for those institutions that, although they enjoy autonomy, in practice their activity is largely financed by the Central Government, so the current pressures and rigidity of the National Budget would be maintained. **VI THE APPLICATION OF THE FISCAL RULE PRESERVES UNIVERSITY AUTONOMY 6.1 Scope of university autonomy a) Implications regarding the object of the action of unconstitutionality** Prior to analyzing each of the challenges raised by the plaintiffs, it is necessary to establish three fundamental premises; the first, that the topic under discussion is the application of a fiscal measure on the current expenditure of the Non-Financial Public Sector that has real implications for the country's financial sustainability; the action does not deal with, nor does the fiscal measure refer to, the essential core of public universities, which is the exercise of the fundamental right to higher education. The foregoing is of capital relevance, insofar as it must be clear that the fundamental right to higher education is prestational and as such possesses two dimensions, that denominated \"minimum essential core\" and a second\n\ndimension that is complementary — and regarding which the action of unconstitutionality before us revolves — and which is the basis of the action of unconstitutionality that concerns us; referring to fiscal and budgetary measures that address the availability of resources and the country's context — as a transversal axis —; to which the state universities are subjected. The second premise revolves around the fact that the fiscal rule allows the achievement of the principle of financial sustainability of the State, which, as noted in the previous section, the Public Administration must foresee and apply when planning, generating, assigning, and using public resources, understood as the realization of sound institutional fiscal discipline achieved through their efficient and effective management, in which the state universities are necessarily involved. This principle of financial sustainability of the State, as already stated, is consistent with the reform to Article 176 of the Political Constitution — approved on May 29 of this year by the Legislative Assembly through Law Nº 9696, pending publication so that it acquires full force —, called \"Addition of a first paragraph and reform of the third paragraph of Article 176 of the Political Constitution.\"\n\nof the Political Constitution of the Republic of Costa Rica (Principles of fiscal sustainability and multi-year budgeting), by which constitutional rank is assigned to the principles of sustainability of public services and multi-year budgeting framework, which must be observed by the \"Public Administration in the broad sense,\" within which universities are included. The cited text states: \"Article 176- Public management shall be conducted in a sustainable, transparent, and responsible manner, based on a multi-year budgeting framework, in pursuit of the continuity of the services it provides. The ordinary budget of the Republic comprises all probable revenues and all authorized expenditures of the Public Administration, during the entire fiscal year. In no case may the amount of budgeted expenditures exceed that of probable revenues./ The Public Administration, in the broad sense, shall observe the foregoing rules when issuing its budgets./ The budget of the Republic shall be issued for a term of one year, from the first of January to the thirty-first of December.\" According to the statement of motives, the\n\n...the proposed reform \"...aims to establish as the supreme norm, and therefore with the highest possible rank, two essential principles to be observed by the Public Administration in its management of the Hacienda Pública (Public Treasury). Namely, on the one hand, its necessary fiscal sustainability, which in any case must be conducted transparently and responsibly. And, on the other, multi-year budgeting (presupuestación plurianual) as the primary instrument for achieving the former.\" (highlighting added)\n\nRegarding said reform and the principle of sustainability it incorporates, the audit body, through Official Letter NP 3387 (DC-0064) of March 8, 2016, stated: \"...the spirit of sustainability is embodied, in the sense that it is indicated that the Public Administration will seek to foresee and apply sustainability when planning, generating, allocating, and using public resources in order to achieve efficient and effective institutional management. That efficacy and efficiency seeks the well-being of the collectivity, regulated in article 11 and article 50 first paragraph of the Political Constitution, as it pursues evidencing the institutional duty to comply with the constitutional precepts of procuring the greatest well-being for the collectivity...\n\nto which all Public Administration must aspire. Regarding the principle of fiscal sustainability (sostenibilidad fiscal), Legal Report No. AL-DESTIJU-254-2015 issued by the Department of Studies, References, and Technical Services of the Legislative Assembly also highlighted that this is understood as the capacity to guarantee continuity in the provision of a public service, as well as to meet its current and future financial obligations, and entails the efficient and effective management of the Public Treasury that the Administration must foresee and apply when planning, generating, allocating, and using financial resources. This is carried out through effective and efficient public management insofar as the disposition of resources directly impacts the well-being of the community and, thereby, the generation of public value. Note that the reform refers to the Public Administration, including within that concept the state universities; hence, the application of the fiscal rule (regla fiscal) set forth in Law No. 9635 serves to operationalize this principle, which has constitutional roots, thereby making the state universities subject to the application of said provision.\n\n\">constitutional. It is under the principle of financial sustainability (sostenibilidad financiera) and whose operational achievement is the fiscal rule (regla fiscal), which the state universities must be understood as being covered by, not as an injury to the alleged autonomies—political, organizational, administrative, and governmental—but rather as the preservation of the same, within a context of fiscal deficit that necessarily affects them. As noted in the supra section, the application of the fiscal rule to the state universities constitutes a tool to guarantee their own financial sustainability, given that there is a risk that even under the application of the fiscal rule they will have difficulties in the medium term maintaining the balance between their current revenues and expenditures, so it might be necessary to apply additional measures for expenditure containment and/or growth of other revenues that complement the transfers they receive from the Central Government, a recommendation that the CGR had already made in the Cited report DFOE-SOC-OS-0001-2019. Therefore, the issue does not concern the alleged injury to state university autonomies, but rather surpasses that discussion and is elevated to the purpose of making effective the principle of financial sustainability of the State and with this\n\nto the sustainability of the endowed patrimony provided by the State to the aforementioned higher education institutions. The application of the fiscal rule and the preservation of university financial autonomy, thanks to said application, also makes effective the principle of financial equilibrium of the State, set forth in the same numeral 176 cited and fully applicable to state universities. In this regard, the Constitutional Chamber (Sala Constitucional), through resolution Nº 19511-2018 of 21:45 hours on November 23, 2018, before a facultative legislative consultation of Law Nº 9635 that concerns us; indicated, in what is of interest, that, “… the development of activities and the fulfillment of the purposes of the Central State and, in general, of the entities of the Public Administration are not disconnected from the budgetary rules contemplated in the Political Constitution. Regardless of the level of autonomy of each institution, our Magna Carta is clear in encompassing the principle of budgetary equilibrium as a transversal axis of the legal system (Article 176.-…) The\n\n... The previous provision bears an obvious relationship to the sound management of public resources, an obligation that extends to all institutions and their officials (subsection 11 of the Political Constitution).\" (emphasis added) The highest Constitutional Court indicated, in said resolution, that \"...the fiscal rules of the bill seek to adjust the national economy and the public spending of the entire Public Administration, subjecting it to such constitutional parameters. This intention, far from contradicting the Constitution, is in accordance with its precepts.\" (emphasis added) It is important at this point to emphasize; as noted in the previous section, the application of fiscal rules—such as the budget balance rule—has not been foreign to the universities, under the guise of the alleged financial autonomy; a rule that became operational with the provisions of Article 6 of the LAFRPP and with the Technical Standards on Public Budget, have been indicated as mandatory compliance for state universities (Official communication FOE-EC-228-2004 (5538) of May 24, 2004). In addition to the above, the application\n\nof the fiscal rule makes it possible to operationalize constitutional principles and norms such as the social and economic development of the State, equity in income distribution, stability of the public economic order, efficiency and efficacy, rational use of public funds, soundness of public finances, transparency, legality, accountability, and, of course, the preservation of the Social and Democratic State of Law — numerals 11, 33, 50, 176, 179, 180, 183, and 184 of the Political Constitution. It is worth noting, the limit of the alleged university autonomy is the Political Constitution itself, and thus the autonomy — which is neither unlimited nor unrestricted — is subordinated to the constitutional principles and norms previously indicated. At this point, it is necessary to emphasize that the state universities are an integral part of the State, by virtue of the provisions of numeral 1 of the General Public Administration Act (Ley General de la Administración Pública), which states: “The Public Administration shall be constituted by the State and the other public entities, each with juridical personality and capacity under public and private law.” The doctrine has indicated\n\nthat.”..the university institution is one more institution within the State and must operate within the framework of the general legal system (ordenamiento general)” (Tomás-Ramón Fernández, “University autonomy: scope and limits” [“La autonomía universitaria: ámbito y límites”], Madrid, Civitas, 1982, p. 56). Additionally, the purpose of state universities is framed within a public goal of the State as a whole, in accordance with the provisions of article 77 of the Political Constitution (Constitución Política), which literally states, “Article 77.-Public education shall be organized as an integral process correlated in its various cycles, from preschool to university.” It is for this reason that, although they have administrative, organizational, and governmental autonomy, according to articles 84 and 85 of the Political Constitution, this does not lead to considering that they are separated from the organizational structure of the State; nor that they constitute a State within another and that they can exempt themselves from the constitutional principles indicated above, alleging, as they do, absolute autonomy. The autonomy that universities have does not prevent applying a spending cap to them, technically justified. The foregoing because the State is a sovereign political body and within\n\n...of this cannot exist any body endowed with greater powers than the State itself. In this regard, the First Chamber (Sala Primera) of the Supreme Court of Justice (Corte Suprema de Justicia) emphasized that \"...despite the fact that universities possess autonomy in the administrative, political, organizational, and financial fields, the truth is that, not for that reason are they exempt from the rules relating to matters of administrative contracting (contratación administrativa), budgetary matters, and internal control (control interno), among others. It should be recalled that universities form part of the Public Administration (Administración Pública) (decentralized entities (entes descentralizados)) and therefore must submit to the legal system (ordenamiento jurídico) in whatever is applicable to them, especially with regard to regulations that, such as those of internal control (control interno), exceed the spheres of competencies and functions of such public entities since they tend toward the safeguarding of the public treasury (hacienda pública), whose oversight is constitutionally attributed to the CGR in its articles 183 and 184. Consequently, as the judges ordered in the contested ruling, the higher education centers must submit to the legality framework...\" (\n\nadded the highlighted) (resolution Nº 000858-FSl-2013 of 09:15 hours on July 11, 2013). In identical sense, the Administrative Contentious Court, through resolution Nº 2652011-VI, of 16:29 hours on December 02, 2011, indicated, regarding university autonomies that: \"...the truth of the matter is that they are not disconnected from jurisdictional control of their conduct, nor, in the exercise of their powers, can they ignore the regulatory regulation of aspects or fields of action that hold an interest that transcends the sphere of the competencies and functions proper to those public entities. Despite their decentralization, they form part of the structure of the State (in its broad sense), they are ultimately public administrations that, as such, are subject to the bloc of legality (numerals 11, 12, 13, 19, 59, 66, 128, 132, 133, 158, 161 LGAP), which supposes, in certain fields of action, they must subject themselves to what the sectoral law of the specific matter indicates. The foregoing since\n\nare autonomous entities, which in no way implies a degree of sovereignty in the exercise of their functions.\" (Emphasis added) For the foregoing, and given that the fiscal rule operationalizes the principle of the State's financial sustainability, which has constitutional roots, and entails making effective those principles relating to financial equilibrium, the State's economic development, equity in income distribution, stability of the public economic order, efficiency and effectiveness, rational use of public funds, the reorganization of public finances, transparency and legality and accountability; which transcend the sphere of the competencies and functions of the state universities: no matter, its application, the transgression of the autonomy that these have. The application of the fiscal rule, far from disrupting, preserves the essential core of the state universities, such as national development through the promotion of scientific research, the arts and letters, the generation of objective critiques of the (national and international) social, cultural, political, and economic reality,\n\nas well as the formulation of proposed solutions. Meanwhile, the development of the same depends on the financial sustainability of the State as a whole. Thus, the universities, in the context of the fiscal crisis facing the State, are not mere observers of said national crisis, but rather have a duty of collaboration regarding the support of public expenditures of the State, necessarily vested with a public interest which justifies the imposition of fiscal measures such as the one that concerns us. The third fundamental premise is that, according to numerals 8 and 9 of Law No. 7428, the \"Organic Law of the Comptroller General of the Republic\" (Ley Orgánica de la Contraloría General de la República), there exists a single Public Treasury (Hacienda Pública). In that sense, the main source of income for the state universities comes from the national budget; an aspect that derives from the Political Constitution itself, numerals 84 and 85— \"The State shall endow them with their own patrimony and shall collaborate with their financing.\" and \"The State shall endow them with their own patrimony…\", and which was reflected in the preceding section, meaning that, from the central Public Treasury, the State provides income, by constitutional norm, to the universities.\n\n-state entities, forming what the plaintiffs call the “University Treasury (Hacienda Universitaria),” which must not be understood as separate from its main source of financing. This is a transcendental aspect in order to point out that the financial autonomy of the state universities is not absolute; there is no University Treasury separated from the Public Treasury (Hacienda Pública), as the plaintiffs erroneously state, since expenses are not met with their own income, but with that which, by constitutional norms—Articles 84 and 85—the State provides them; through the national budget. That is to say, there is a flow of public resources that nourishes the “University Treasury,” as it is integrated into a larger entity which is the State and consequently to its public funds; by means of the transfer from the national budget. Two relevant conclusions derive from the foregoing, the first in the sense that the alleged autonomy refers to the subject matter—education—; with everything that this implies, this being the essential core of its reason for being; it is also linked to the management and administration of its own budget, without this implying abstaining from fiscal measures such as the one before us\n\noccupies, since the so-called \"University Estate\" is sustained, essentially, with public resources (recursos públicos) coming from the Public Treasury (Hacienda Pública); through the national budget. Which leads to the consideration that said \"University Estate\" is subject to sound administration of public funds, which must necessarily observe the principles of budgetary balance, financial sustainability—including the fiscal rule: and financial management (economy, efficiency, and effectiveness)—set forth in constitutional articles 176 and 5 of the LAFRPP; in such a way that the resources provided by the State, through a transfer from the national budget, do not become a trigger for public spending (gasto público) that increases the fiscal deficit; this insofar as there is a relationship between income and expenses, and the financial policy decisions that fall upon them are interdependent. The second conclusion is that, since state universities are nourished by funds belonging to the Public Treasury (Hacienda Pública), they are necessarily compelled, by norms of constitutional rank—articles 183 and 184—to the control and oversight thereof by the Office of the Comptroller General of the Republic (Contraloría General de la República), against which it is not possible to allege any autonomy in order to\n\nto be exempted from the control and oversight of the Public Treasury exercised by constitutional mandate by the Comptroller General of the Republic. In this regard, the Constitutional Chamber, through resolution No. 09215-2012, understands that: “(…) if, as was affirmed- the autonomy regime of the Technological Institute cannot be invoked against the administrative activity of control constitutionally attributed to the Office of the Comptroller General, then there is no legal reason whatsoever to maintain that this same autonomy regime obliges the comptroller entity to indicate what must be done to correct the situation but without being able to instruct specific necessary acts it deems appropriate to take for the achievement of the control purpose sought. (...) the opposite is true, in the sense that in this case nothing prevents the Office of the Comptroller General from imposing concrete obligations to act on the petitioning institute, just as it does with respect to any of the other supervised bodies, since in that sense- although there are degrees of autonomy, they are repeated- do not operate at the level of the control activity, with respect to which, constitutionally, all\n\nthe entities and controlled bodies essentially bear the same legal regime of subordination.\" (emphasis added) From this perspective, it is also relevant to reaffirm that the fulfillment of the purposes of the public universities is intimately linked to the purposes of the State, as established by numeral 77 of the Political Constitution, cited above, by indicating that public education is an integral process correlated in its various cycles, from preschool to university. Therefore, the unity regarding the Public Treasury refers not only to the source of income, but to the public interest with which the state universities are vested, since education and professional training have higher purposes of a State nature; for this reason, economic coordination and with it subjection to the fiscal measure at hand is imposed, for the sake of satisfying the common public interest —education—. All of the foregoing leads to the conclusion that the autonomy of the state universities, while part of a separate patrimony for the achievement of their purposes, is limited by the\n\nfiscal measures that respond, not to a government policy, but to the legal subject that is the State; and whose sustainability prevails in order to satisfy the public interest — public education. Now, it is important to refer to the instrument used to operationalize the Public Treasury (Hacienda Pública), which is the budget; conceptualized, according to the Constitutional Chamber (Sala Constitucional) itself, as a technical organizing instrument of the State's economy; wherein, according to the provisions of constitutional numeral 176, regarding revenues it constitutes a forecast of the same, and regarding expenditures it has a triple effect: authorization of public spending, limitation of the amount to be spent, and determination of the destination to be given to the appropriations approved in the budget, which, according to the highest Constitutional Court, gives a clear idea of the nature of the budget as a projection of revenues that covers the authorized expenditures of the Public Administration, and therefore it consists of an expression in accounting terms of the Government's plan of action\" (resolution N 760-92 of 15:15 hours of March 1, 1992). By means of resolution N° 4884-2002, the Constitutional Chamber (Sala Constitucional)\n\nreferred to the budget as that strategic action plan—an instrument of social development and planning of the State's economy—, with a foresighted, planning, and effective control nature. It is worth noting that the state universities do not escape the application set forth in numeral 176 cited, by indicating that the budget equilibrium rule applies to them, as autonomous institutions; taking into consideration the application of the effects referred to the authorization, limitation, and setting of the destination of public expenditures, an aspect already referred to supra. Hence, the operating and control rules applicable to the economic administration of the central core of the State: such as those referred to budget equilibrium and the one concerning us referred to the fiscal rule, are viable for regulating the management and administration of the budget of the state universities and, far from affecting university autonomy, what it does is conserve the source of income. That is the correct scope that must be given to university autonomy, which is subject to the sustainability and financial equilibrium of the State, as a cross-cutting axis of constitutional rank, b) Considerations regarding\n\nThe second axis addresses the subject of the claim, insofar as the plaintiffs allege that, by applying the rule in the terms set forth in those articles, the state universities become subject to the Executive Branch-Ministry of Finance, through the Technical Secretariat of the Budgetary Authority (Secretaría Técnica de la Autoridad Presupuestaria, hereinafter STAP), regarding the issuance of a certification of compliance that will be considered by the Oversight Body for purposes of the legality review it will carry out in verifying compliance with the rule, in the process of approving the budgets of public universities. The foregoing does not imply that public universities have been subjected to the scope of the Budgetary Authority (Autoridad Presupuestaria); on the contrary, the assigned function is limited to the issuance of the certification in a strictly technical exercise, in\n\n...simple verification of whether or not the legally established conditions are met, without interference in how funds are spent or which projects or priorities are addressed. Moreover, the competence for budget approval resides in the Contraloría General de la República, a constitutionally-based body. That is, within its clear scope and dimension, numeral 19 of Ley N° 9635, states that it is the Contraloría General de la República which holds constitutional competence under articles 183 and 184 to approve the budgets of state universities and exercise the required legality control, including, of course, compliance with the fiscal rule. The aforementioned competence has been endorsed by the Sala Constitucional, which has indicated in this regard that \"The Contraloría General de la República is a constitutional body auxiliary to the Asamblea Legislativa, with express competence for the oversight and vigilance of the public treasury—article 183 of the Constitución Política, to which corresponds the verification of the correct use of public funds, which is concretized in a...\"\n\ncontrol of legality in the financial administration of the State and its institutions—including municipalities—. A task which it performs with absolute independence and objectivity, since in principle, there is no room for control of discretion (control de discrecionalidad), but rather only for control of legality (control de legalidad), by examining the conformity of actions taken with the legal system, not the dictates or intentions of the Administration. In summary, this control is reduced to verifying compliance with the applicable legality parameters, disregarding any reference to policy issues or mere convenience or opportunity in the controlled administration, as well as the efficiency and profitability of the financial administration; of course, as long as the convenience or inopportuneness does not exceed the limits beyond which it would become illegality according to the normally recognized criteria regarding the limits of discretion. (...) The jurisdiction of the Contraloría over municipalities is inescapable and mandatory by constitutional mandate” (emphasis added) (see\n\nresolution Nº 05445-1999 and in the same vein 5119-1995; 089202009; among others). Said oversight encompasses the entire scope of the auditing and control authority over public funds (Hacienda Pública) that the Contraloría General de la República holds, by virtue of constitutional-level norms, and which, as the Sala Constitucional has indicated, does not imply an injury to autonomies. In this regard, the highest Constitutional Court has stated that “Municipal autonomy does not exclude the legality control, which the doctrine is unanimous in admitting, in the manifestations of authorizations and approvals (a priori and a posteriori control, as requirements of validity and efficacy of the acts, respectively), as compatible with it. The most qualified Costa Rican doctrine has expressed on the point: «We do not deem incompatible with municipal autonomy, but rather advisable, the legality controls with powers of suspension, annulment, and substitution, by the Contraloría General de la República, of fully regulated municipal administrative acts, for this would be supported by the logic of that\n\ntype of control and for the advisability of curbing administrative excesses before resorting to the judicial route, which is so slow and noncompliant.» That is to say, that the control emanating from the Office of the Comptroller General of the Republic (Contraloría General de la República), which is also of constitutional origin pursuant to the texts of its Articles 183 and 184, would not contravene municipal autonomy, because its principal function is the legality control of the financial administration of the state and municipal public sector, from which it is inferred that what pertains to local governments, its provenance is supported by an express constitutional text (Article 184, subsection 2)” (emphasis added) (see resolution NP 2934-1993).\n\nRegarding the subjection of state universities to the sphere of control of the Office of the Comptroller General of the Republic (Contraloría General de la República), the First Chamber (Sala Primera) of the Supreme Court of Justice (Corte Suprema de Justicia) emphasized that “Within these fields, for example, they are conditioned by the norms issued by the Office of the Comptroller General of the Republic (Contraloría General de la República) in both\n\ntopics, which does not imply an invasion of its sphere of autonomy, but rather a subjection and adherence to legal rules that specify and delimit the behavior of these entities. Now, part of those areas of subjection is the matter of internal control… It is a system of control of actions and administrative procedures that is regulated, it is insisted, by the General Law of Internal Control (Ley General de Control Interno), No. 8292 of July 31, 2002. As has been pointed out, from the conjunction of numerals 1, 3, 7 and 12 of that legal framework, it is an obligation of the entities audited by the CGR to adhere to the rules of internal control….” Thus, regarding the matter of university autonomy and its scope, even though the plaintiff seeks to exclude it (sic) from the application of the internal control regulations; it is necessary to indicate that, once again, she errs in her assertions.. (Resolution No. 000858-F-S1-2013 of 9:15 a.m. on July 11, 2013). In the same vein, the Administrative Contentious Tribunal indicated that “… what is called university autonomy, which\n\n… is subject to internal control policies issued by the Contraloría General de la República. As autonomous entities, the Public Universities are recognized in Article 84 of the Fundamental Charter, (…)” From that norm it follows that not only is the Universidad de Costa Rica endowed with independence for the performance of its functions and with full legal capacity to contract obligations; but also all the Public Universities, among which is the Universidad Estatal a Distancia. They therefore enjoy the three basic levels of autonomy recognized by the legal system, which are: 1) Administrative Autonomy (Autonomía Administrativa): which enables them to exercise their powers and authority; 2) Political or Government Autonomy (Autonomía Política o de Gobierno): which grants them the faculty of self-governance, in the sense that they can set their own goals and policies, giving them the possibility of planning and programming to achieve their own goals; and 3) Full organizational autonomy (Autonomía organizativa plena): which grants them the legal capacity to self-organize, which would be\n\n… to have and implement their own organization. (…) They also possess the power of self-determination, which allows them to establish their plans, programs, budgets, internal organization, and even the possibility of structuring their own government; always, of course, within the framework of their powers and respecting the legal system at all times” (emphasis added) (resolution Nº 00035-2014). Therefore, there is no unconstitutional subjection of the state universities to the STAP, as the plaintiffs would have it seem, but rather what numeral 19 of Law Nº 9635 refers to, in its clear and correct scope, is the subjection of these to the control of the Contraloría General de la República, with the latter having a certification from the STAP, in order to verify compliance with the fiscal rule, as part of the legality review. It is worth noting, as indicated before, that the legality review of the Contraloría General de la República does not conflict with university autonomy; far from it, it involves the exercise of a constitutionally ranked power, in the interest of an efficient and effective use of\n\nthe funds belonging to the Public Treasury. Thus, the degrees of administrative, organizational, and governmental autonomy do not operate at the level of control of public funds exercised by the comptroller body, since all other entities and bodies essentially bear the same legal regime of subjection, and no special condition arises from the degree of autonomy held by the universities that would assure them attenuated control or differentiated treatment. **6.2 University autonomy and subjection to the legal system** Article 4 of Law No. 9635 establishes that the rules of public finance management, such as the fiscal rule, have the purpose of ensuring that budget policy guarantees fiscal sustainability —of constitutional standing, according to the reform of Article 176 approved by Law No. 9696-. The universities, although they have organizational, administrative, and governmental autonomy and as such are outside the direction and hierarchy of the Executive Branch, have administrative faculties and powers to carry out their function, can self-determine —through plans, programs, and budget—; have regulatory power, can self-structure, deconcentrate, and decide on the\n\n...all of this does not exempt them from the observance and application of the legal system; on the contrary, they are subject to it. Universities are also subject to legality control; in this regard, Eduardo Ortiz Ortiz states: \"The University, like any other subject of the national legal order, is subject to all legal regulations which, even affecting its legal situation and indirectly interfering with the provision of its service and the organization of its means, affect all other subjects of the same order equally, because they are motivated by reasons common to all, unrelated to its functional specialty.\" (...) \"What remains to the University, outside the power of self-organization that all entities have and which can encompass all aspects of its structure, is the setting of academic programs, of techniques for service provision, and of the relationships arising from its provision. This is properly the service of high culture, the only one that can resist the law behind the protective shield of university autonomy.\" (The underlining is not from the original) (ORTIZ ORTIZ, Eduardo, La Autonomía Administrativa Costarricense, op. cit.,\n\np.137.) In this regard, the Office of the Attorney General of the Republic (Procuraduría General de la República) has indicated that “(…) Now then, the foregoing does not mean that the state universities are entirely divorced from the Costa Rican legal system or that, following a dualist thesis, one can assert that two legal systems coexist within a single State. In the first place, the universities are subject to Constitutional Law (values, principles, and norms). Among the principles are: legality, jurisdictional control of their acts, responsibility, and democratic principles. On the other hand, by virtue of the principle of state unity, the state universities are subject to the Costa Rican legal system, as don Eduardo Ortiz correctly expressed: “The University, like any other subject of the national legal order, is subject to all legal regulations, which, even affecting its legal situation and indirectly interfering with the provision of its service and the organization of its means, affect all other subjects of the same order equally, because they are motivated by reasons common to all, extraneous to its functional specialization. In this way, they are subject to the norms of the\n\nAssembly, the regime of their properties, the regulation of traffic on their streets, crimes committed within their classrooms, and, in general, all conduct of the student or the professor within the University that coincides with a legal scenario, distinct from academic teaching.” (Legal Opinion C-216-99 of November 1, 1999). Therefore, there is no legal justification, whether constitutional or legal, that allows state universities to exempt themselves from the application of the fiscal rule set forth in Ley N° 9635 and the alleged autonomy does not extend to determining such exclusion.\n\n**6.3 Scope of university autonomy versus the principle of financial sustainability.** The International Covenant on Economic, Social and Cultural Rights —ratified by Costa Rica on September 23, 2014— establishes in its paragraph 2.1 that “1. Each of the States Parties to the present Covenant undertakes to adopt measures, both individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively by all appropriate means, including in particular the adoption of measures\n\n..and legislative measures, the full effectiveness of the rights recognized herein.\" The foregoing, in accordance with the provisions of Article 1 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights \"Protocol of San Salvador,\" which provides: \"Article 1/ Obligation to Adopt Measures/ The States Parties to this Additional Protocol to the American Convention on Human Rights undertake to adopt the necessary measures, both domestically and through cooperation among the States, especially economic and technical, to the maximum of available resources and taking into account their degree of development, in order to achieve progressively and in accordance with domestic legislation, the full effectiveness of the rights recognized in this Protocol.\" Paraphrasing what was indicated by the same Constitutional Chamber through resolution Nº 11951 1-2018; the principle of financial sustainability becomes relevant in order to analyze the issue of benefit-conferring rights—such as that relating to higher education in its complementary dimension—in such a way that this will depend on the country's economic context and the technical basis.\n\nto justify, in this case, the limitation on spending through the fiscal rule (regla fiscal). That is to say, given the current context, the principle of financial sustainability (sostenibilidad financiera) is imposed as a cross-cutting axis of a constitutional nature, but also because it does not conflict with, but rather is in accordance with, the cited conventional norms. Now then, taking that analysis into consideration and being clear that the fiscal rule does not affect the essential core of the state universities and that far from affecting their autonomy, it seeks to preserve it: the balancing judgment, the equilibrium or optimization of constitutional norms—autonomy 83 and 84 versus financial sustainability 176—necessarily leans in favor of the latter. The balancing test (test ponderativo) implies that in the event of a conflict between two norms of the same rank, in a specific case, a balance must be sought between them in order to reach a solution that, without affecting the essential core of both, delimits the exercise of one of them. In the specific case, the limitation on spending that the application of the fiscal rule entails, and with it the principle of financial sustainability, does not affect the essential core of university autonomy; rather,\n\nwith its application, the preserve; otherwise, if the decision were to lean toward the arguments of the plaintiffs, it would seriously and significantly affect the principle of financial sustainability (sostenibilidad financiera), putting at risk, as has already been pointed out, the sustainability of the Social and Democratic State under the rule of law; with the consequences that have already been noted in this brief. VII INADMISSIBILITY OF THE PLAINTIFFS' ARGUMENTS 7.1 Flaws in the Interpretation of the Application of the Fiscal Rule (regla fiscal) In the third factual allegation, subparagraph c), of the unconstitutionality action, the plaintiffs allege that in the training session of May 31, 2019, which was given by the Office of the Comptroller General of the Republic and the Technical Secretariat of the Budgetary Authority (Autoridad Presupuestaria), they were told that \"the certification of the Budgetary Authority will be an admissibility requirement for the submission of university budgets to the Office of the Comptroller General of the Republic.\" This statement is not correct, as clarified below. In the aforementioned training session, all attendees from the public sector who participated were informed that, in accordance with the provisions of Article\n\n19 of Title IV of Ley Nº 9635, the Dirección General de Presupuesto Nacional shall verify that budget amendments (modificaciones presupuestarias) and extraordinary budgets comply with the provisions of Article 11 of said Law, and in the event that such amendments entail a breach of the rule established in Ley Nº 9635, the Dirección General de Presupuesto Nacional must apply the provisions of Article 177 of the Constitución Política and shall report accordingly to the Minister of Finance and the President of the Republic. And, in the case of resources for deconcentrated bodies, the Ministry of Finance shall decide, through criteria of fiscal sufficiency (suficiencia fiscal), respect for fundamental rights, and following the priorities of the Plan Nacional de Desarrollo, the amount to be budgeted for these bodies and its growth. Likewise, in the training provided by the Secretaria Técnica de la Autoridad Presupuestaria, the Dirección General de Presupuesto Nacional, and the Contraloría General de la República, on 31 May 2019 it was indicated that entities of the rest of the Non-Financial Public Sector must prepare their ordinary budget, extraordinary budget, and budget amendments (modificaciones presupuestarias) with\n\nfull compliance with the provisions of Article 11 of the aforementioned law. The verification of compliance with this rule will be the responsibility of the Contraloría General de la República, which, for purposes of the legality review (bloque de legalidad) that it conducts, will consider the certification to be issued by the Secretaría Técnica de la Autoridad Presupuestaria regarding compliance with the fiscal rule. Therefore, at no time was it indicated that the certification that the Secretaría Técnica de la Autoridad Presupuestaria must submit to the Contraloría General is an admissibility requirement for the presentation of university budgets before the Contralor body. On the contrary, said certification will be considered by the Contraloría General as part of the legality review (bloque de legalidad) that it must observe during the budget approval process.\n\nIn the same third fact, under subsection d), the plaintiffs state that in the training session of 31 May 2019 they were told “that the capitalizable expenditures of state universities must correspond to projects duly registered with the Ministry of Planning.” This statement is also incorrect, since in the aforementioned training session\n\nin reference to what is indicated by the article of Decreto Ejecutivo Nº 41641-H, which contains the Reglamento al Título IV of Ley Nº 9635, denominated “Responsabilidad Fiscal de la República”, in the sense that entities must justify, as applicable, the capitalizable expenses that are linked to investment projects duly registered in the Banco de Proyectos de Inversión Pública (BPIP) of MIDEPLAN, for those that are subject to said requirement and for entities that are not, as is the case of universities they must only submit the appropriate documents. They also allege that in the referenced training, it was indicated to them that “... university budgets cannot exceed a maximum increase of 4.67% in current spending” (third fact, subsection e). In this regard, it is necessary to clarify that what was in fact indicated in the training, was that according to article 11 of Título IV of Ley Nº 9635, the Central Government debt, as a percentage of GDP, fell under scenario c). And, under this scenario, the maximum spending growth percentage\n\ncurrent expenditure for the 2020 fiscal year, for the budgets of the entities and bodies of the Non-Financial Public Sector, shall not exceed 4.67%. The foregoing, according to the calculation performed by the Ministry of Finance, based on the information provided by the Central Bank of Costa Rica and the provisions of article 11 of Title IV of the aforementioned law. Therefore, for the 2020 period, the budgeted current expenditure of the universities, like that of the rest of the entities of the Non-Financial Public Sector that were not exempted by law, may not exceed the limit of 4.67% established by the Ministry of Finance. This does not determine the use that the universities decide and may give to those resources, in observance of the principle of legality. In the fourth fact, the plaintiffs argue that the annual execution of the Higher Education Development Plan (PLANES) and the transfer of the FEES were subjected to conditions not authorized by article 85 of the Political Constitution and that the state universities were made subject, in matters of political, administrative, and governmental independence, to the directives and orders\n\nof the Executive Branch, through the Ministry of Finance and the Budgetary Authority, violating the power of self-determination that the universities possess, which constitutes an integral part of their autonomy. This same fact is taken up again, principally, in the fourth, fifth, eleventh, twelfth, and thirteenth points of the grounds of the action of unconstitutionality filed. This argument is inaccurate, as clarified below. Title IV of Law No. 9635, and specifically the articles challenged in the present action, at no time detach the FEES from the purposes established in the PLANES; on the contrary, as has been repeatedly indicated, the fiscal rule contemplated in the cited norm aims for a deceleration of the growth of current expenditures; therefore, as it is a spending rule, it does not define the destination given to those expenditures. The use of current expenditures available to state universities will be defined solely by themselves; at no time does the challenged norm limit the power of self-determination of the universities to establish the\n\nSimilarly, their investment possibilities are not nullified, which—according to the economic classifier of public-sector expenditure (clasificador económico del gasto del sector público)—are considered capital expenditures (gastos de capital), upon which no type of restriction exists, given that the fiscal rule (regla fiscal) currently operates only on current expenditures (gastos corrientes). Likewise, Article 4 of Decreto Ejecutivo Nº 41641-H, Reglamento al Título IV de la Ley N.º 9635, establishes that it is the responsibility of the Non-Financial Public Sector (Sector Público no Financiero) entities to identify the current expenditure resources that may be capitalizable according to the investment projects defined by those same entities. Therefore, the norm is clear in indicating that the entities are the ones that will define the use they will give to their resources. In the fifth fact of the action, the plaintiffs allege that “the universities are outside the scope of the Budgetary Authority (Autoridad Presupuestaria),” which in their view is a recognition of their constitutional independence from political, administrative, and governmental matters, and is in accordance with the provisions of Article I, subsection d) of the General Law\n\nRegarding what the plaintiffs stated in the aforementioned fact; it is important to analyze, first, the scope of action of the Budgetary Authority (Autoridad Presupuestaria). In this regard, it is important to note that the Financial Administration and Public Budgets Law (Ley de la Administración Financiera y Presupuestos Públicos, LAFRPP), No. 8131, is intended to regulate the economic-financial regime of the organs and entities that administer or are custodians of public funds. This Law includes the Budgetary Authority as a collegiate body, which has, among other functions, advising the President of the Republic on budgetary policy matters, as well as formulating—for subsequent approval by the competent body—the general and specific guidelines and directives of budgetary policy for the organs and entities within the scope of application of said Law. It is also established that the Budgetary Authority shall have an executive body whose functions are set forth in the Regulation to the Law, which was issued through Executive Decree No. 30058-H-MP-PLAN, where the Technical Secretariat of the Budgetary Authority (Secretaría Técnica de la Autoridad Presupuestaria) is designated as the entity responsible for verifying compliance with the guidelines\n\nand general and specific guidelines issued on this matter. As provided in subsection d) of Article 10 of the LAFRPP, the scope of application of the cited Law for state universities corresponds solely to compliance with the principles established in Title II of that same Law, regarding responsibilities and to providing the information required by the Ministry of Finance for its studies. In all other respects, they are excepted from the reach and application of Law N° 8131. For its part, the Public Finance Strengthening Law N° 9635, in its Article 19, provides, in relevant part: “The remaining entities of the Non-Financial Public Sector must prepare their ordinary and extraordinary budgets and budget modifications in full adherence to the provisions of Article 11 of this law. The verification of compliance with this rule shall be the responsibility of the Contraloría General de la República, which shall consider, for the purposes of the legality review it performs, the certification to be issued by the Technical Secretariat of the Authority\n\nBudgetary Oversight of compliance with the fiscal rule. In the event that the Technical Secretariat of the Budgetary Authority certifies a breach of the fiscal rule by entities of the Non-Financial Public Sector, the Office of the Comptroller General of the Republic (Contraloría General de la República) shall assess that certification and resolve as appropriate.” Likewise, Article 21 of Law No. 9635 regarding the verification of compliance with the fiscal rule, states that.”.. Starting from the budgetary liquidation of public entities, both the National Budget Directorate (Dirección General de Presupuesto Nacional) and the Technical Secretariat of the Budgetary Authority (Secretaría Técnica de la Autoridad Presupuestaria), shall prepare a final report on compliance with Article 11 of this law and shall remit it to the Office of the Comptroller General of the Republic (Contraloría General de la República), with a copy to the President of the Republic. These reports shall be published on the website of the Ministry of Finance (Ministerio de Hacienda).” It is evident from the articles cited above that the legislator entrusted the Technical Secretariat of the Budgetary Authority with the duty of certifying compliance with the fiscal rule, as an input that the Oversight Body (Órgano Contralor) must consider for the verification\n\nFrom the foregoing legal framework, some clarifications must be made regarding the scope of Law N.º 9635 for universities.\n\n**7.2 The Public Finance Strengthening Law does not modify or broaden the scope of the Budgetary Authority in relation to universities** The participation of the Technical Secretariat of the Budgetary Authority in processes relating to the fiscal rule (regla fiscal) corresponds to the issuance of a compliance certificate that will be considered by the Comptroller Body (Órgano Contralor) for purposes of the review of the legality block (bloque de legalidad) that it will carry out in verifying compliance with the rule. That is, this is a new function that Law N.º 9635 assigns to it, but in no way does this imply that the rest of the functions or competencies given to that Technical Secretariat by Law N.º 8131 or its Regulations will apply to the universities or the other institutions that are not under the scope of the Budgetary Authority. The fact that the Public Finance Strengthening Law assigned to the\n\nTechnical Secretariat of the Budgetary Authority the task of certifying compliance with the fiscal rule for the entities and bodies of the Non-Financial Public Sector, does not imply that henceforth all of that sector has been placed under the purview of the Budgetary Authority: on the contrary, in the case of the institutions of the Non-Financial Public Sector that are not under the purview of that Authority, the assigned function is limited to the issuance of the certification and its submission to the Contraloría General de la República (Office of the Comptroller General of the Republic), for purposes of verifying compliance with the fiscal rule.\n\n**7.3 No impact on FEES**\n\nArticles 9 and 10 of Title IV of Law 9635 define the fiscal rule as a limit on the growth of current spending, which is subject to the \"level of debt of the Central Government as a percentage of GDP and the average growth of nominal GDP for the four years prior to the year of formulation of the national budget.\" The fiscal rule is designed so that as the debt/GDP ratio increases, the growth restriction\n\n...of current expenditure (gasto corriente) is greater; conversely, at a debt level considered sustainable in the medium and long term, current expenditure may grow at the same rate as GDP growth. That is, the rule is a temporary containment measure for expenditure. In that regard, the Central Bank of Costa Rica, in official communication N.º JD-5849/07 of October 18, 2018, which appears on Folio 20518 of the case file for bill N.º 20.580 ‘Ley de Fortalecimiento de las Finanzas Públicas’, stated the following on this topic: “The fiscal rule...also adopts elements to reduce procyclicality (the rule is suspended when the economy is in recession and the limits on expenditure growth are applied when growth is above 6% for two consecutive years regardless of the debt/GDP ratio)…” This was thus regulated in article 12 of Law N.º 9335. Therefore, should the country find itself at a debt level considered sustainable in the medium and long term, current expenditure may grow at the same rate as GDP growth.\n\nOn the other hand, Article 85 of the Political Constitution provides that the State shall maintain “… a special fund for the financing of State Higher Education … at the order of the aforementioned institutions, according to the distribution determined by the body responsible for the coordination of state university higher education. The revenues of that special fund may not be abolished or diminished….” In line with the above, the Regulation to Title IV of the Law on the Strengthening of Public Finances, No. 9635, excludes in its Article 25 the discretion for the allocation of specific constitutional destinations, indicating the following: “Article 25. Specific Destinations In compliance with Articles 15 and 25 of the Title IV of the Law herein regulated, for the specific destinations that are not expressly set forth in the Political Constitution or whose financing does not come from a special revenue, the Ministry of Finance shall have discretion in the allocation of resources in accordance with the country’s fiscal situation and the criteria established in Article 23 of the aforementioned Title.” On the other hand, and\n\nin accordance with the provisions of Articles 9, 10, and 11 of Title IV of Law No. 9635, the fiscal rule (regla fiscal) seeks to decelerate the growth of current expenditures, without defining limits on the sources of revenue that finance them, among which are included revenues budgeted through government transfers to decentralized sector entities, as is the case of the Special Fund for Higher Education (Fondo Especial de Educación Superior, FEES). In the universities' budgets, the FEES is their main source of revenue, and as such, the fiscal rule is not applicable to it because it is a spending rule, meaning that the certification issued by the Technical Secretariat of the Budgetary Authority (Secretaría Técnica de la Autoridad Presupuestaria) regarding compliance with the established percentage of current expenditure growth will not take revenue as a reference, but solely the current expenditure incorporated in the universities' budgets. Furthermore, in the case of the National Budget of the Republic, Article 2 of the Regulation to Title IV of the Law for the Strengthening of Public Finances establishes that verification of the rule shall be carried out in an aggregate manner. Article 20. — Individualized application of\n\nthe fiscal rule (regla fiscal). The application of the rule is individualized for the current expenditure (gasto corriente) incorporated in the budgets of each of the entities that make up the Non-Financial Public Sector (Sector Público no Financiero). In the case of the National Budget of the Republic (Presupuesto Nacional de la República), this is considered in an aggregated manner. (The underlining does not correspond to the original) Thus, the budgetary allocation to the FEES within the budget of the Republic, viewed as an expenditure transfer, coupled with the provisions of the cited Article 25, generates an obligation on the Executive Branch (Poder Ejecutivo) to respect the constitutional purpose (destino constitucional), so it is incorrect to state that the application of the fiscal rule nullifies the obligation of the Executive Branch to budget the FEES. 7.4 On the return of the surplus (devolución del superávit) In this context, it is also necessary to clarify that the rule introduced in Title IV of Law No. 9635 (Ley N.º 9635) regarding surpluses (superávits) generated in each fiscal year (ejercicio económico) is also not unrestricted, as the plaintiffs claim. On the contrary, Article 17 regulates the destination of the free surpluses (superávit libres) generated by\n\nthe application of the rule: that is, this provision would likewise be conditioned upon the occurrence of the Central Government debt parameters that trigger the fiscal rule. Furthermore, the approved provision refers only to free surpluses (superávits libres); that is, those generated by an excess of executed revenues in relation to executed expenditures at the end of a budget year (ejercicio presupuestario); these resources are of free availability and discretion regarding the type of expenditure they can finance, in accordance with the competencies and purposes of the institution, provided that these expenditures are not permanent in nature or generate an obligation that requires financing over time, and that their use also does not contravene the current legal system (ordenamiento jurídico). Consequently, Article 17 of Title IV of the Law on Strengthening Public Finances (Ley de Fortalecimiento de las Finanzas Públicas) does not include specific surpluses (superávit específicos), corresponding to those excesses of executed revenues over executed expenditures at the end of a budget year that, by special or legal provisions, must be allocated to a specific purpose. The aforementioned Article 17 introduces a provision of order for the use of resources from the\n\nThe free surplus (superávit libre) arises from two scenarios: the free surplus (superávit libre) generated by entities that receive transfers from the national budget as a consequence of applying the fiscal rule (regla fiscal) must be returned to the national budget the year after it was generated, so that the government can redirect it for debt amortization or public investment. Only the free surplus (superávit libre) generated from the Central Government transfer must be returned. The foregoing is reaffirmed in Article 18 of the \"Reglamento al Título IV de la Ley N° 9635\" (Decreto 41641-1-1), which states: \"For entities that receive current transfers from the Central Government, once the current budget expenditure growth rate resulting from the fiscal rule (regla fiscal) has been applied, if the allocated resources are not executed at the end of the budget exercise, the generated surplus (superávit) must be returned to the National Budget in accordance with Article 17 of Title IV of the Law regulated herein. (...) In the submission of budget liquidations, the entities of the Non-Financial Public Sector that receive current transfers from the Central Government must attach a table of origin\n\nof said resources, both budgeted and executed, for the verification of compliance with Article 17 of Title IV of the Law hereby regulated.” The foregoing is consistent with a budgetary policy that aspires to fiscal sustainability, since a significant percentage of the public debt is the result of financing managed by the Government for the adequate functioning of its institutions, so if said institutions do not execute the granted resource, being within the indebtedness parameters that activate the application of the fiscal rule, the return of that non-executed resource contributes to the amortization of the debt or investment in public works, without having to resort to new financing. Under this logic, the legal provision contained in Article 17 of Title IV of Law 9635 also directs the use of the free surplus that does not have to be returned because it does not come from Central Government transfers, so that institutions that have debts (liabilities) use those resources to amortize those debts, in order to lower indebtedness levels. All of this becomes important because the fiscal sustainability of the\n\nthe country depends on the entire state apparatus; that is, even though there may be debts acquired by the Central Government and others acquired directly by the decentralized sector institutions, at the moment of determining the level of indebtedness of the public sector in general it is considered, which is why it is consistent that at times of application of the fiscal rule (regla fiscal), there is a provision of order that allocates the resources received but not used during an economic year for the amortization of debts, whether from the centralized or decentralized sector. Given the foregoing, it is pertinent to note that the efforts to contain spending by the decentralized public sector have a positive impact on public sector finances, provided that what is established in Article 17 of Law No. 9635 regarding the destination of the free surpluses (superávits libres) generated by the application of the fiscal rule (regla fiscal) is adhered to. Since, without the transfer of free surpluses (superávits libres) to the Budget of the Republic for debt amortization or investment, the fiscal rule (regla fiscal) would not have the effect desired by the legislator when approving the merit norms; furthermore, it must be kept in mind that\n\ngeneration of surpluses does not constitute an end in itself. The limit on the growth of current expenditure imposed by the fiscal rule on the Non-Financial Public Sector makes sense insofar as it minimizes the borrowing requirements for the Central Government.\n\n**VIII CONSTITUTIONALITY OF THE CHALLENGED NORMS** In summary, the plaintiffs question the constitutionality of Articles 6, 11, 14, 17, 19, and 26 of Title IV of Law No. 9635 (sic); considering that the following are not exempted from their application: 1) The Special Fund for the Financing of State Higher University Education (hereinafter FEES) and 2) the state universities. In this regard, it is worth highlighting that the indicated norms give practical content to the principles of financial sustainability and budgetary balance, both of constitutional rank -Article 176 of the Political Constitution- and whose purpose is to guarantee the operational capacity of the Social and Democratic Rule of Law to generate the goods and services that Costa Rican society demands; that is, it allows for securing present needs without compromising future ones. Hence, the fiscal rule is part of that essential -constitutional- content;\n\nand puts into practice the aforementioned principles; nevertheless, for it to be effective, it is necessary that the institutions that make up the Non-Financial Public Sector —with the exceptions that the law itself indicates— form part of the guarantee of the State's financial sustainability; the opposite would lead to emptying the constitutional rules and principles of their practical content, and with that, generate an unsustainable fiscal situation in the very short term. The reasons why the state universities seek, through this action, to exempt themselves from the fiscal rule are based on a mistaken premise, which is the separation of the higher education institutions from the economic-financial situation of the State; insofar as they believe they hold, as part of the alleged autonomy, a special self-sufficient economic privilege (fuero económico especial) which they call \"University Treasury (Hacienda Universitaria).\" In this regard, they state in the action before us that, in accordance with the provisions of numerals 84 and 85 of the Political Constitution, within the constitutional independence is that of ownership and free disposition over their own patrimony, constitutionally separated from that of the State: which they call \"University Treasury (Hacienda Universitaria)\"; separated from the\n\n...Public Treasury (Hacienda Pública), hence, they exercise their constitutionally guaranteed power of self-determination—through their full legal capacity to acquire rights and contract obligations. This “University Treasury” (“Hacienda Universitaria”), they argue, comprises all material, financial, and budgetary assets, which, they indicate, are subject exclusively to the university's constitutional power of self-delimitation. The foregoing, they indicate, occurs in exercise of their constitutional independence in matters of administration and government; without requiring authorizations or approvals that are additional to or distinct from their own governing authority, and any act of disposition over this patrimony must be the result of the exercise of the university powers of self-administration (autoadministración) and self-government (autogobierno)—see recitals nine and ten. However, the aforementioned lacks constitutional or legal support, nor is it sustainable in the current economic-financial context; it lacks the former insofar as it is the Political Constitution itself which establishes that it is the State that provides resources to state universities; such that they are not separated from the State Public Treasury, but rather draw from it to carry out their functions; this leads to the consideration that they are likewise not separated, but rather...\n\naffects them, the critical situation that the country faces in fiscal matters. It is worth citing the points made by the School of Economics of the University of Costa Rica in the record of Regular Session No. 200, held on September 5, 2018, and approved in Session No. 201; regarding the analysis and discussion of the Bill for the Strengthening of Public Finances, expediente No. 20.580, and in clear attention to its competence—as part of the University of Costa Rica—to analyze, with high objectivity, knowledge, and rationality, the country's economic reality. \"The severity of the fiscal situation and the urgency of a reform that addresses and resolves this problem is recognized. The fiscal deficit is unsustainable, and to confront it, both measures that increase revenues and measures that reduce the growth of spending are needed. The longer we delay in solving this problem, the larger the portion of the adjustment that will have to come via spending cuts and the more painful the consequences will be/ Protecting the most vulnerable sectors, it is necessary to recognize that all\n\nthe other sectors, we must all contribute to this reform, both through the establishment of higher tax burdens and through limitations on benefits on the expenditure side. Not acting responsibly and urgently would have far more serious consequences for the country and for the university itself. Many countries—including Costa Rica—have suffered tragic experiences in this regard, when not addressing financial imbalances has led to contractions in economic growth, increases in unemployment and poverty, and cuts in social investment which, in turn, contribute to deteriorating the society's human capital. When fiscal adjustment measures are applied in a rational and planned manner, it is possible to avoid severe regressive impacts; conversely, when the adjustment is the result of the outbreak of a financial crisis, it tends to affect the weakest sectors more, increasing inequality.” (Emphasis added). In this analysis, the University of Costa Rica recognizes not only the country's pressing situation in terms of the fiscal crisis and the need to apply\n\nmeasures to preserve the country's financial sustainability, including that of the state universities; rather, it recognizes the need for all sectors —including these— to contribute to said reform, rescuing the spending limit, which is the aim in applying the fiscal rule from which they seek to be exempt in this action. Therefore, the application of the fiscal rule to public universities, far from harming their financial autonomy, seeks to safeguard and ensure their sustainability; by virtue of the fact that the budgets of higher education institutions have transfers from the national budget as their main source of income. Furthermore, the universities' argument lacks constitutional and legal support, since they indicate that they do not require authorizations or approvals other than their own governing authority; which is not only false, but contrary to the constitution itself and to what has been indicated by the Constitutional Chamber, insofar as they are subject to the Constitution regarding the superior control and oversight of public funds, which includes the authority of the Comptroller General of the Republic to carry\n\nto carry out audits, authorize budgets, and oversee the resources they hold, also being subject to the same constitution with respect to the fiscal rules already established previously, such as that of constitutional budget balance -176-. Furthermore, these higher education institutions are subject to the legal system, but beyond that, the limit of the autonomies claimed by the universities is the Political Constitution (Constitución Política), which necessarily imposes those rules of financial balance and financial sustainability (sostenibilidad financiera) that are cross-cutting and support the interests—not of a group—but of the community in general. The Political Constitution does not derive a niche of abstraction or differentiation such that state universities possess, as if they were a separate State, which justifies the non-application of the fiscal rule to them; and to grant it would lead to an unjustified, unreasonable, and disproportionate difference, to the detriment of public funds, the common interest, and the provision of State services. The foregoing are legal reasons that are supported by a national reality; indicated in the preceding paragraphs and which should not\n\nto circumvent; the current reality is that if the state universities and other institutions intend—based on a kind of special jurisdiction (fuero especial) they do not possess—to detach themselves from the limits on public spending, this will, in the short term, lead to their sources of income—the national budget—being limited; in such a way that the autonomy to carry out their competencies will also be disrupted. The plaintiffs point out that, the autonomies held by the state universities are special, complete, and distinct from that of the other decentralized entities regulated by articles 188 to 190 of the Political Constitution (Constitución Política); this is because, article 84 of the Constitution (constitucional) preserves, contains, and guarantees, according to their claims, the exercise of the public powers inherent to university institutions, and implies, among other aspects they note: a) Outside the direction of the Executive Branch (Poder Ejecutivo) and its hierarchy, b) They possess all the necessary administrative faculties and powers to carry forward the special purpose legitimately entrusted to them, c) They enjoy the power of self-determination to establish their plans, programs, budgets, internal organization, and to structure their own government, d) They carry out\n\nend ...with independence from its mission of higher education and culture, e) They impart teaching, carry out and deepen scientific research, cultivate the arts and letters in their highest expression, analyze and criticize, with objectivity, elevated knowledge and rationality, the social, cultural, political and economic reality of their people and the world, propose solutions to the great national problems, serve as drivers of ideas and actions to achieve development at all levels, without prejudice to other specialties or subjects assigned to them. They add, the essential content of constitutional Article 84, by constituent will is that the university as a center of free thought, must and has to be exempt from pressures or measures of any nature that tend to prevent it from fulfilling, or that attack, these, its great duties (they cite resolutions of the Constitutional Chamber of the Supreme Court of Justice Nº 495-92 and 1313-93) -seventh paragraph-. Note, honorable magistrates, that, being so, if the Costa Rican State is left without resources, because it did not adopt the necessary fiscal measures, or adopting them, they were emptied of practical content by virtue of unjustified reasons regarding special jurisdictions abstracted from the economic reality\n\nfinancial: the state universities will not be able to make effective the autonomy they hold; the State will find itself truly and materially unable to provide them with resources so that they may fulfill their laudable missions in the cultural and higher education spheres, to impart teaching, to carry out and deepen scientific research, to cultivate the arts and letters in their highest expression, to analyze and critique the social, cultural, political, and economic reality of their people and the world, to propose solutions to the great national problems, to serve as drivers of ideas and actions to achieve development at all levels, among many others. It is worth noting, it is not the Ministry of Finance, the Budgetary Authority, the Technical Secretariat of the latter, or the Comptroller General of the Republic that demands the application of the fiscal rule to the state universities, but rather what demands it is the economic and financial situation of the country; of which these institutions are a part because it is nourished and sustained by public funds. The fiscal rule does not disrupt the essential core of the state universities, nor does it limit their autonomy; the application of said measure\n\nfiscal does not determine the manner in which these allocate their budget; what it does is impose a limit on current expenditure, a limit to which the other institutions that make up the Non-Financial Public Sector are subject; out of an interest in preservation, sustainability, and financial equilibrium of the State. Hence, the arguments referring to the legal capacity to acquire rights and contract obligations, as well as to establish their own organization and governance; and the special and different independence alleged, with respect to other autonomous institutions mentioned in paragraphs one to six and eight; do not mean that these must be separated or receive differentiated treatment in the application of the principle of financial sustainability and the operational way to make it effective —the fiscal rule—; as a cross-cutting axis in matters of public funds and with constitutional rank. Another aspect to highlight is the temporality of the rule, provided it is applied as is and institutions as relevant as state universities are not exempted from it; the foregoing is so because the fiscal measure is designed in such a way that if a sustainable level of debt is reached in the medium and long term —through\n\nthe restriction of current spending (gasto corriente) on the institutions of the Non-Financial Public Sector—current spending will grow at the same rate as GDP. Refining the analysis, this Audit Body must point out that the position of the state universities is based on a retrospective vision without considering the national reality and ignoring the fact that the principle of financial sustainability surpasses its scope of competence because the latter tends to safeguard the Public Treasury, from which, as has been repeatedly stated in this memorial, the budget of the state universities is nourished. Hence, given that the application of the fiscal rule gives content to the indicated constitutional principles—sustainability and financial balance—and insofar as, far from that measure harming university autonomies, it seeks to guarantee and preserve them through the sustainability of the resources with which it endows them; it is imperative to maintain the application of said rule and declare the constitutionality of the indicated norms; by virtue of the constitutional support and in light of the context of the national economic and financial reality. Finally, this Office of the Comptroller General points out to the Constitutional Court that the absence of a cap on current spending,\n\nthe possibility of maintaining a free surplus from transfers from the Republic's budget, whose financing forces an increase in debt, and a partial application of the measures brings negative effects on public finances with direct repercussions on the management of the Sector, including even a deterioration in the provision of basic services. Thus, the analysis of the present action and its resolution is of capital relevance and will determine the financial situation of the State in order to preserve it as a Social and Democratic State of Law; taking into consideration the sustainability of the resources of all inhabitants -Public Treasury- and the best and most balanced management of the same.”\n\n**IX PLEADING**\n\nHaving rendered the report in response to the hearing granted, based on the factual and legal considerations previously set forth, I respectfully request that the action of unconstitutionality be dismissed in all its aspects against Articles 5, 6, 11, 14, 17, 19 and 26 of Title IV of Law No. 9635 of December 3, 2018.\n\n**REQUEST FOR PROMPT RESOLUTION TO AVOID GREATER IMPACT**\n\nTHE FISCAL SITUATION AND THE PUBLIC TREASURY. In view of the suspensive effects on the application of the challenged regulations -solely and exclusively- with respect to the plaintiffs (state universities), as a consequence of the admission and processing of this unconstitutionality action, in accordance with the provisions of the resolution of 08:35 hours on July 5, 2019, this Controlling Body deems it pertinent -respectfully- to request this Honorable Constitutional Court for the prompt attention and resolution of this process, since its delay could entail extremely adverse effects for the State's financial situation, causing significant harm to the Public Treasury. As stated in the initial sections of our presentation, the direct consequence of this action in the budget approval process under the purview of the Contraloría General -with respect to the plaintiffs- would lead to conducting the review of the budget without considering the application of the challenged rules, that is, among others, without a cap on the current expenditure of the state universities and without subsequent effect on the surplus. It is for this reason that special consideration is requested regarding\n\nto the pressing reasons that—in the judgment of this Contraloría General—warrant the greatest possible speed that may be accorded to the resolution of this acción de inconstitucionalidad; in strict adherence to the legal system and the exercise of the proper jurisdictional powers vested in that Honorable Sala Constitucional.”\n\n**6.-** By brief received on July 30, 2019, Julio Alberto Jurado Fernández appears, in his capacity as procurador general de la República. He states the following: **“II. REGARDING THE ADMISSIBILITY OF THE ACTION:** As regards the admissibility of the present action, the order granting transfer indicates that the standing (legitimación) of the plaintiff universities is based on the second paragraph of article 75 of the Ley de la Jurisdicción Constitucional (No. 7135 of October 11, 1989), given that it involves the defense of diffuse interests “in safeguarding the public funds that must be allocated to the financing of state higher education and the fundamental right to education.” The Procuraduría agrees with\n\nthat assessment based on what was stated by this Chamber in judgment No. 2016-012803 of 11:21 hours on September 7, 2016: **“II: The standing (legitimación) of the plaintiff in this case.-** Article 75 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional) regulates the conditions that determine the admissibility of unconstitutionality actions, requiring the existence of a matter pending resolution in an administrative or judicial venue (sede administrativa o judicial) in which the unconstitutionality is invoked, a requirement that is not necessary in the cases provided for in the second and third paragraphs of that article, that is, when due to the nature of the norm there is no individual or direct harm; when it is based on the defense of diffuse interests (intereses difusos) or those that concern the community as a whole, or when it is filed by the Attorney General of the Republic (Procurador General de la República), the Comptroller General of the Republic (Contralor General de la República), the Prosecutor General of the Republic (Fiscal General de la República) or the Ombudsman (Defensor de los Habitantes), in these latter cases, within the\n\ntheir respective spheres of competence. In this case, standing (legitimación) is based on the defense of \"diffuse interests (intereses difusos).\" These are defined as those whose ownership belongs to groups of persons not formally organized, but united by a specific social need, a physical characteristic, their ethnic origin, a particular personal or ideological orientation, the consumption of a certain product, etc. The interest, in these cases, is blurred, diluted (diffuse) among an unidentified plurality of subjects. This Chamber has enumerated various rights to which it has given the designation of \"diffuse,\" such as the environment, cultural heritage, defense of the country's territorial integrity, sound management of public expenditure, and the right to health, among others. On the other hand, the enumeration that the Constitutional Chamber has made is not exhaustive. From the foregoing, it is clear that the plaintiff possesses sufficient standing to challenge the unconstitutionality of the contested norm, without it being necessary for that purpose\n\nthat they have a prior matter that serves as a basis for this action. The foregoing because they come in defense of a diffuse interest, such as the defense of the right to education. Precisely because education of the national population is at stake, this Chamber understands that we are before an action that seeks the protection of interests that concern the national community as a whole, for which the plaintiff is perfectly legitimized to bring action directly, in light of what is provided in paragraph 2 of article 75 of the Law of Constitutional Jurisdiction.\" (See in the same sense, from this Chamber also, resolution n.°2004-04409 of 15:12 hours of April 28, 2004).\n\n**III. ANALYSIS ON THE MERITS OF THE ALLEGED CONSTITUTIONALITY CHALLENGES**\n\nBefore undertaking the examination on the merits of the challenge raised, it seems necessary to us to specify the object of challenge of the action, because although it is true\n\nis requested by the petitioning institutions the declaration of unconstitutionality of the cited Articles 5, 6, 11, 14, 17, 19 and 26 of Title IV – entitled Fiscal Responsibility of the Republic – of the Public Finance Strengthening Law, the consequence, in the event of an eventual favorable ruling, we would understand, would not be the suppression of the questioned norms from the legal system, but rather their non-application (desaplicación) for the specific case of the state universities, insofar as they allege an omission in that regard by the ordinary legislator by not expressly excluding them from its application. Under that understanding, the petitioners essentially argue, as we summarized at the outset, that their subjection to the fiscal rule in the preparation and execution of each of their budgets in the terms as defined by Article 9 of the Public Finance Strengthening Law, that is, establishing for them a limit on the growth of their current expenditure, in a form proportional to the average growth of the Product\n\n…the nominal Gross Domestic Product (Producto Interno Bruto, PIB) and the debt ratio of the central Government, and the mechanisms set forth in the same articles to guarantee their observance, violates the constitutionally recognized university autonomy, by unduly limiting its competence to set the objectives and purposes in matters of public university higher education, and violates the own financing regime contemplated for those institutions in Article 85 of the Political Constitution, by not including the FEES among the exceptions to the coverage scope of Title IV indicated in Article 6 of the same law. The foregoing argument expresses the dialectic between that institution constitutionally guaranteed in favor of the state universities, called university autonomy, and the authorization of the ordinary legislator to regulate or positively influence its legal framework, since the former is conceived as a specific constitutional protection against the action of the latter in attempting to define or redefine said centers in their basic and typical features, to the extent that\n\nin which they have become —as a result of their historical evolution and the widespread apprehension of their meaning in the collective consciousness and in the legal community— essential and identifying of them. So that for the correct approach to this action, the scope and features of said autonomy must first be studied, outlined primarily by the case law of that Chamber, as well as by the FESS itself, as an instrument designed to guarantee it (A), moving on to an analysis of the notion and nature of the so-called fiscal rule and its means of compliance (B), to finally establish the constitutional compatibility between both legal figures in the norms subject to challenge (C).\n\n**A. THE JURISPRUDENTIAL FORMULATION OF THE SCOPE OF UNIVERSITY AUTONOMY AND THE NATURE OF THE FEES**\n**1. The profiles and the sphere of university autonomy according to constitutional case law**\nAs this advisory body has indicated in previous reports to that\n\n…the high Court, university autonomy (autonomía universitaria), according to constitutional jurisprudence (jurisprudencia constitucional), is considered special, complete, and distinct from that of the rest of the decentralized entities (entes descentralizados), which means that it can define its own objectives and plans, self-structure, distribute its competencies within the internal sphere of the entity, deconcentrate to the extent legally possible and lawful, regulate the service that remains, and freely decide on its personnel, the basis for which can be found primarily in the relation of Articles 89 and 87 of the Political Constitution (Constitución Política), which in that order establish: “ARTICLE 84- The University of Costa Rica (Universidad de Costa Rica) is an institution of higher culture that enjoys independence for the performance of its functions and full legal capacity (capacidad jurídica) to acquire rights and contract obligations, as well as to give itself its own organization and government. The other state university higher education institutions (instituciones de educación superior universitaria) shall have the same functional independence and equal legal capacity that…\n\nthe University of Costa Rica. The State shall endow them with their own patrimony and shall collaborate in their financing.” (As amended by the sole article of law N° 5697 of 9 June 1975) [The underlining is not from the original].“ARTICLE 87- Academic freedom (libertad de cátedra) is a fundamental principle of university teaching.” From the preceding provisions, this Chamber has developed an entire conceptual construction of the basic content of university autonomy (autonomía universitaria) and of those features that are considered substantial and inherent to it, a jurisprudential review that we can begin with the well-known judgment n.°1313-93 of 13:54 hours of 26 March 1993: “VI.- MEANING OF THE CONCEPT OF AUTONOMY (sic).- Having stated the foregoing, it is necessary to make some clarifications. Pursuant to Article 84 of the Political Constitution, the Universities of the State are endowed with independence for the performance of their functions and with full legal capacity to acquire rights and contract obligations, as well as\n\nas to provide for their own organization and government. That autonomy, which has been classified as special, is complete and for this (sic) reason, distinct from that of the rest of the decentralized entities in our legal system (regulated principally in another part of the Political Charter: articles 188 and 190), and means, to begin with one of its most important aspects, that they are outside the direction of the Executive Branch and its hierarchy, that they possess all necessary administrative faculties and powers to carry out the special purpose legitimately entrusted to them; that they can self-determine, in the sense that they are enabled to establish their plans, programs, budgets, internal organization and structure their own government. They have regulatory power (autonomous and of execution); they can self-structure, distribute their competencies within the internal scope of the entity, deconcentrate to the extent legally possible and lawful, regulate the service they provide, and decide freely on their personnel (as\n\nalready established by this Chamber in Resolution No. 495-92). These are the administrative, political, organizational, and financial modalities of the autonomy that corresponds to public universities. The principal purpose of university autonomy is to procure for the entity all the necessary legal conditions to carry out its mission of higher education and culture independently. In this sense, the University is not a simple teaching institution (teaching was already defined as a fundamental freedom in our vote number 3559-92), since to it corresponds the complex function, integral to its nature, of conducting and deepening scientific research, cultivating the arts and letters in their maximum expression, analyzing and criticizing, with objectivity, elevated knowledge, and rationality, the social, cultural, political, and economic reality of its people and the world, proposing solutions to the great problems, and for that reason, in the case of underdeveloped countries (sic), or\n\ndeveloped, like ours, to serve as a driving force for ideas and actions to achieve development at all levels (spiritual, scientific, and material), thereby contributing with that work to the effective realization of the fundamental values of Costa Rican identity, which can be summarized, as stated in the vote just cited, as democracy, the Social State of Law, the essential dignity of the human being, and the \"system of freedom,\" in addition to peace (Article 12 of the Political Constitution) and Justice (41 idem); in summary, for those purposes it is created, without prejudice to the specialties or subjects assigned to it, and nothing less than that is expected and demanded of it. The foregoing conceptualization does not seek to exhaust all the elements, but from its content it is essentially deduced—and it is what is understood that the Constituent wished and embodied in the Fundamental Law—that the university, as a center of free thought, must\n\nand it must be free from pressures or measures of any nature that tend to prevent it from fulfilling, or that threaten, that great mission.-\n\n**VII.- THE LIMITS (sic) OF LEGISLATIVE POWER IN RELATION (sic) TO UNIVERSITY AUTONOMY (sic).**- Having defined university autonomy in its substantial aspects, it is appropriate to synthesize the fundamental canons that determine its relationship with the principle of legality. Although it is true —as has already been demonstrated— that the Legislative Assembly can regulate matters concerning universities, it is forbidden to make it impossible, to detract from, or to diminish those powers that are necessary for those institutions to fulfill their corresponding purpose and that make up (sic) their own Autonomy. That is to say, to express it in the terms of certain relevant doctrine, those entities have the initial, independent, and unrestricted ownership and exercise of all administrative and teaching powers for the fulfillment of their\n\nmaterial specialization, **without this** (sic) **being able to be undermined by the Law**. But furthermore, within the explained teaching modality, *it also serves as a shield for that autonomy, the* ***freedom of instruction*** *(article 87 of the Political Constitution), which can be understood as the power of the university to decide the content of the instruction it imparts, without being subject to provisions by powers external to it, or else, in the sense of the faculty of university professors to express their ideas within the institution, allowing the coexistence of different currents of thought* (see regarding the legitimate limitations of freedom, the aforementioned ruling Voto 3550-92). Of course, also, that these entities by constitutional provision (article 85), are subject to coordination by the \"body in charge\" indicated therein, and to take into account the guidelines established by the current National Development Plan.\" (The bold underline is not from the original). The transcribed ruling\n\n- reiterated in ruling no. 2015-10248 of 9:00 hours on July 8, 2015 - is also relevant for delimiting the scope of the general framework of the special autonomy that covers university higher education centers vis-à-vis the powers of the ordinary legislator, who, by express provision of constitutional Article 88, has the authority to enact laws regarding matters that, without restricting or weakening the autonomous sphere that protects them, are placed under the competence of said institutions or \"directly related to them\" - in the very terms used by the Fundamental Norm - with the express condition provided for the purpose of hearing them beforehand, to discuss and approve the corresponding legislative bills, lacking total availability to regulate them as to their power of organization and of being able to give themselves their own government, according to the independence conferred upon them by the cited Article 84. Then in ruling no. 2761-96 of 10:21 hours on June 7 of\n\nIn 1996, that Chamber delved deeper into the relationship between formal law and the scope of autonomy recognized to state universities, addressing the legal nature of the regulatory power (potestad reglamentaria) autonomous of the latter: \"II.- It is appropriate, in the first place, to refer to the autonomy that the Constitution grants to universities, to point out that this, although very broad, is administrative autonomy. In the first place, vis-à-vis the Executive Branch and the rest of the Public Administration; in the second place, vis-à-vis the law, but only to prevent it from delegating to administrative authorities powers capable of imposing that type of decisions on the universities. This means, first, that constitutional autonomy does not confer upon their norms the value of laws, nor even that of executive regulations. In the third place, universities enjoy autonomous and administrative regulatory power (potestad reglamentaria) only in the matters placed under their competence and not in those\n\nthat are placed under the jurisdiction of other entities or public bodies. It cannot be considered exclusive to the Universities that which relates to the powers of administrative police (policía administrativa) —not only that of public order and safety, of course, but also others defined as such, for example health police, labor police, urbanization and construction police, etc.— Nor does that autonomy extend to non-university matters, that is, those not relating to teaching or research in higher education, although it may involve others not strictly university, placed under their care, such as the recognition of studies and degrees from other national or foreign higher education institutions, matters which fall within the scope of legislative policy, that is, they may be entrusted to the state universities or to other organisms, even if they do not fall within university autonomy, such as the Consejo Nacional de Rectores. It is also appropriate\n\nmention of resolution No. 2011-015655 of 12:48 hours on November 11, 2011, although focused on the levels of administrative and governmental autonomy constitutionally conferred upon the Caja Costarricense de Seguro Social, but which deserves to be mentioned insofar as the universities possess both degrees, in addition to the organizational one, which is exclusive to this class of entities: “Thus, the degree of autonomy that the Constitution gave to the Caja Costarricense de Seguro Social, in its article 73, is what has been denominated as degree two, which includes administrative autonomy and government autonomy. Given that the reform that article 188 of the Constitution underwent in 1968, a reform which incidentally did not modify the aforementioned article 73 supra, established administrative direction over the rest of autonomous institutions, but did not modify the degree of autonomy of the\n\nCaja Costarricense de Seguro Social, which has continued to enjoy administrative and governmental autonomy since 1943. By virtue of this, it is therefore clear that the law or the legislator cannot interfere in matters of governance of the Caja Costarricense de Seguro Social by virtue of the governmental autonomy that this institution enjoys. Recall the definitions that this Chamber has compiled in its jurisprudence on the meaning of each of the degrees of autonomy: a) administrative, which is the legal possibility for an entity to carry out its legal mandate by itself without being subject to another entity, known in doctrine as the capacity for self-administration; b) political or governmental, which is the capacity for political self-direction, for self-governance, for the entity to dictate\n\n...its own objectives in the manner it deems convenient for fulfilling the purpose for which it was created; and, **c) organizational** (organizativa), which is the capacity for self-organization (sic), to the exclusion of all legislative power (this being proper to the universities as inferred from article 84 of the Constitución Política and therefore extraneous to the purposes of this consultation).\n\nThe first two degrees of autonomy derive from Political Autonomy, the content of which shall be proper to the norm (constitutional or legal) that creates the entity. In this case, we are facing a decentralized entity created by the Constitution, and whose degree of autonomy, also defined by the same Carta Magna, is of degree two, which must be understood\n\n...which includes the powers to formulate plans or set the ends and goals of the entity, the power to give itself internal functional and financial planning mechanisms through budgets and, the exercise of autonomous regulatory power.\" (The bold underline is not from the original). In accordance with the doctrine that emerges from the previous resolutions, it is inherent to that capacity for self-determination of university higher education institutions to define their plans, goals, and action programs, independently and to the exclusion of any other State institution, an autonomy that entails an extremely relevant economic dimension without which those plans and programs could not be carried out, consisting of the freedom to establish the income and expenditure plan, determining how the assigned resources will be employed,\n\nin definitive terms, to formulate its budget. Although certainly the state universities do not escape the law, nor did the Constituent Assembly remove or prevent the Legislative Assembly from the power to legislate regarding matters placed under its competence, the formal law could not \"rebuild or alter\" (in the expression used in the cited constitutional vote no. 2011-015655), the competence and autonomy constitutionally granted to those centers of comprehensive education (comprising administrative, political, and organizational aspects), defining aspects that are of their exclusive domain, in particular: the development of culture and the arts in their highest expression, knowledge, free, plural, and critical thought, scientific research, and higher education in Costa Rican society. In the words of that high Court, the public order purpose of those centers that transmit knowledge and progress towards the communities, assigned both by the Constitution and by the law, consists of driving national progress through their\n\nof research (investigación) and scientific and technological transfer (transferencia científica y tecnológica) activities. Reference is made to judgment no. 6412-96 of 15:18 hours on 26 November 1996: \"III.- Despite the foregoing, the Chamber considers that, ultimately, the core issue does not reside in the appreciation of the role of universities, whether public or private, vis-à-vis the coming century. As a result of the arguments presented during the course of this proceeding (both those written and those offered orally during the hearing held for that purpose), it is perceived that the parties (including the plaintiff) are in agreement on the fact that universities must transcend (and, in fact, transcended some time ago) the archaic paradigm of entities that are merely trainers of teachers to develop an intense and incessant activity of research (investigación) and extension (transferencia), enabling them to act as drivers of the national process.\" (The underlining is not in the original). Now then, that Constitutional Chamber also\n\nhas been responsible for clarifying in its jurisprudence that university autonomy is not absolute, but rather finds limits in the constitutional norms and principles themselves, as indicated in judgment No. 2005-00919 of 14:30 hours on February 1, 2005: \"At this point it must be indicated that, although it is true that Article 84 of the Political Constitution enshrines university autonomy, it is also true that this autonomy gives it independence from the branches of the Republic (constituted powers) but not from the constituent power, creator of the constitutional norms and principles to which it is entirely submitted.\" (The underlining is not from the original). In the same vein, it is appropriate to make reference to the following jurisprudential excerpts that account for the limits to which the institutional guarantee of Article 84 is subject in relation to the appellant entities: \"IV.- In the case of\n\nthe rule in question. In the present case, the Office of the Comptroller General of the Republic (Contraloría General de la República) challenges the unconstitutionality of the following phrase from Article 32 of the Organic Statute of the Technical National University (Universidad Técnica Nacional): “and they shall have instrumental legal personality (personería jurídica instrumental) for the purpose of administering the patrimony and the resources assigned to them,” considering it contrary to, among other constitutional principles and norms, the principle of legal reserve (reserva de ley) in matters of creating instrumental legal persons (personerías jurídicas instrumentales). In this regard, the Chamber notes that the instrumental legal personality established in the challenged Article 32 in favor of the campuses (sedes) of the Technical National University was indeed created by a norm other than a law, that is, in the Organic Statute of the University. Certainly, although Article 84\n\nof the Political Constitution provides the University of Costa Rica and the other state universities with “independence for the performance of their functions and full legal capacity to acquire rights and contract obligations, as well as to establish their own organization and governance” – that is, organizational autonomy in the creation of their internal bodies in accordance with the purposes constitutionally assigned to them—this in no way empowers them to replace the legislator and endow their internal bodies with instrumental legal personhood, as is attempted in the challenged norm, which is a matter exclusive to the legislator. Hence, the organizational autonomy that public or state universities enjoy in no\n\nauthorizes the implementation of bodies with instrumental legal personhood (personerías jurídicas instrumentales) in their respective organic statutes, as has been done in the challenged norm, which without any doubt is contrary to the Law of the Constitution. By virtue of the foregoing, the Chamber considers that the provision in the following phrase of article 32 of the Organic Statute of the Universidad Técnica Nacional: “and they shall have instrumental legal personhood (personería jurídica instrumental) for the purpose of administering the assets and resources assigned to them” violates articles 11 and 121 subsection 20) of the Political Constitution and, therefore, its unconstitutionality must be declared and it must be annulled, as of the moment of the issuance of the challenged norm.” (Voto n.º 2012-8889 of 16:00 hours of the 27\n\nof June 2012. (The boldface is not in the original). \"**III.- On the merits**.- To begin the analysis of this claim, it must be noted that there is no doubt for the parties, nor for this Chamber, regarding the content of the authority that the Costa Rican Political Constitution has attributed to the Contraloría General de la República, consisting of overseeing the manner in which public institutions dispose of public funds, with the purpose of assuring society that the disposition of such monies is correct, that is, in accordance with the constitutional and legal norms and principles established for the management of the Public Treasury. For this Court, the foregoing means that this case is situated within that task of controlling administrative activity, its actions are constitutional, and there is no legal possibility that they may be limited by the autonomy regime that it enjoys.\n\nthe Costa Rica Institute of Technology.- The reason for the foregoing is that such autonomy regimes point to the recognition of greater or lesser degrees of discretion for certain entities, but not with respect to the entire set of administrative activities in which the Contraloría operates, but rather—vis-à-vis the Executive Branch and on occasions the Legislative Branch, since what they seek is greater flexibility for programming goals toward the achievement of their purposes and the allocation of means and resources they deem appropriate to achieve them.- (…) V.- The foregoing analysis allows the Chamber to conclude that the actions taken by the Contraloría on this matter and reflected in official letters identified as DFOE-SOC-1196 of November twenty-ninth, two thousand ten, and DFOE-SOC-IF-75-2010 of October nineteenth, two thousand ten, are fully framed within the administrative control activities under its responsibility, since in the first place-\n\nfar from influencing or disposing over the ends of the Institute or over the means to achieve them, the measures discussed have a clear control purpose (fin de control), since they only seek to prevent the simultaneous performance (desempeño de forma simultanea) (sic), by a single person, of the functions of General Coordinator and specific Coordinator (that is, Project Coordinator, a situation for which this Court finds no grounds alleged or otherwise to assign it any character that affects the content of university autonomy or its exercise by the technological institute. … For the Chamber, the opposite is true in the sense that in this case nothing prevents the Office of the Comptroller General (Contraloría) from imposing on the petitioning institute concrete obligations to do, just as it does with respect to any other of the bodies supervised by it, because in\n\n...sense – although there are degrees of autonomy, they – it bears repeating – do not operate at the level of the control activity, with respect to which, constitutionally, all controlled entities and bodies essentially bear the same legal regime of subjection. It is for this reason that there is no act exceeding its functions on the part of the Contraloría in issuing orders to do something, both to the President of the Representative General Assembly and to this latter public body, and the autonomy of the petitioning institute is not harmed by such orders, since constitutionally no special condition arises from the latter that assures them an attenuated control or a different treatment with respect to the powers of the Contraloría.\n\n**VII.- Conclusion.-** This action challenges the specific instructions by means of which the Contraloría General de la República ordered the execution of certain acts related to the control\n\nof public funds in the plaintiff institute.- In the opinion of the Court, this involves an activity whose purpose is constitutional both due to its object (the control of public funds) and regarding the subject (Contraloría General de la República). From that perspective, therefore, no constitutional injury exists, inasmuch as the autonomy enjoyed by the Instituto Tecnológico is not in relation to the oversight and control activity, and, on the contrary, it must be understood that, since it involves administrative control activity, the situation of this autonomous entity before the Contraloría is similar to that of other public bodies and entities, and it may receive, as appropriate, instructions and orders to do without its sphere of autonomy being harmed thereby.” (Voto n.º 2012-9215 of 14:30 hours of July 17, 2012. The\n\n(underline not in original). \"Thus, the university autonomy (autonomía universitaria) that assists public higher education centers (provided with constitutional rank), extends so that these—through their highest hierarchical bodies—establish the manner in which they will resolve the remuneration regime (régimen remunerativo) of their servants, always attending to elementary constitutional principles that govern the entire public apparatus, such as reasonableness and proportionality as well as the adequate safeguarding of public finances...\" (Voto n.°2015-10248, already cited. Underline not in original).\n\n**\"V.- UNIVERSITY AUTONOMY AND THE RIGHT OF THE CONSTITUTION.** The full autonomy or of the third degree recognized to public universities in Article 84, paragraph 1, of the Constitution also has insurmountable limits, so that it cannot be understood, under any concept, as a legal concept\n\nindeterminate that shall enable in an indeterminate and open manner the centers of higher university education. *Autonomy* is a notion of constitutional Administrative Law that, obviously, must be understood within the coordinates of the Constitutional State of Law. Certainly, as this Tribunal has repeatedly affirmed, such university autonomy enables them to issue their own fundamental legal norms of organization. However, such power cannot be overstepped, since, without any doubt, it is limited by the Law of the Constitution itself, that is, the constitutional values, principles, precepts, and jurisprudence. The universities certainly enjoy autonomy, but not sovereignty; sovereignty is held only by the State itself. It cannot be understood, under penalty of fragmenting sovereignty, that\n\nthe universities can constitute themselves as a kind of micro-states within the Costa Rican State itself. There is not the slightest doubt that public universities, in exercising their autonomy, are also subject to the constitutional principles, values, precepts, and jurisprudence that interpret them. Universities cannot abstract themselves from the Law of the Constitution or from the constitutional order. Among the insurmountable limits of university autonomy, obviously, are the fundamental and human rights, which are of direct and immediate application and which, of course, bind all public powers, including, of course, the universities. The fundamental and human rights that emanate from the dignity of the person are the basis of the entire legal order; consequently, any\n\n…regulation, including that issued in the exercise of full or university autonomy must respect them and ensure their effective enjoyment. … VIII.- WEIGHING OF PRINCIPLES. In the doctrine of neo-constitutionalism, great jurists (Ronald Dworkin, Robert Alexy, Martin Borowsky, etc.) have recommended, for resolving hard cases where principles concur in opposite directions, the application of the so-called “weighing of principles (juicio de ponderación).” The weighing of principles (juicio de ponderación) requires, through the use of the principles of reasonability and proportionality in a broad sense, determining which of the principles have greater weight, consistency, or value in order to grant it preference, without this implying the derogation of the principle that is displaced and which remains in force. Indeed, there is\n\ncases that cannot be resolved through the application of classic subsumption, since there is no clearly applicable rule of law to the same. In the present matter, it is evident that two constitutional principles can be understood to enter into confrontation or collision (in the opposite sense), namely: a) the university autonomy recognized in article 84, paragraph 1, of the Constitution and b) the principle of the merit system for accessing the public function through proven suitability (idoneidad comprobada) contemplated in article 192 of the Constitution. Consequently, when acting in a contrary sense, both principles impose a balancing test (juicio de ponderación) to determine which one has, in the specific case to be resolved, greater weight, consistency, and, therefore, preference. In our criterion, the principle of the\n\nnt-size:14pt; font-style:italic\">regulatory obligations, including the submission of their budgets for approval, in accordance with the provisions of Article 184 of the Political Constitution and the specific law on the matter. (See in this regard, opinions of the Constitutional Chamber No. 5450-95 of 14:36 hours on October 3, 1995, 1313-97 of 15:30 hours on March 11, 1997, and 9366-2005 of 9:44 hours on July 13, 2005).\n\nstate universities specific mandates or obligations to carry out measures that do not influence or dictate the purposes of those entities or the means to achieve them, and that have a clear control objective. Hence, we therefore take the liberty of clarifying from this point onward, within our advisory role to that Chamber, that the basis for restricting the growth of current expenditure of the state universities through the application of the fiscal rule, in accordance with the regulation of Articles 9, 10, and 11 of the Law for the Strengthening of Public Finances (Ley de Fortalecimiento de las Finanzas Públicas), cannot be framed, at least not entirely, as part of that task of control and supervision of public finances by the comptroller body. That is, the basis of the fiscal rule does not reside in the control of the Public Treasury (Hacienda Pública). For the rest, in accordance with the same constitutional jurisprudence cited, the exercise of university autonomy is also conditioned by the constitutional norms, principles, values, and jurisprudence that\n\ninterpret, among which stands out, due to its relevance for resolving this matter, the adequate safeguarding of public finances. The question to be elucidated, then, is whether the fiscal rule as regulated by Title IV of the Public Finance Strengthening Law can be validly understood as part of those principles that delimit the scope of the guarantee of Article 84 of the Constitution, a topic that will be addressed after closing this first major section with the study of the FEES.\n\n**2. The legal scope of the FEES:** The Special Fund for Financing State University Higher Education (Fondo Especial para el Financiamiento de la Educación Superior Universitaria Estatal, FEES), like the so-called National Development Plan for State University Higher Education (Plan Nacional de Desarrollo para la Educación Superior Universitaria Estatal, PLANES), finds its basis in the detailed regulation of Article 85 of the Political Constitution, which we take the liberty of transcribing below:\n\n**\"ARTICLE 85.-** The State shall provide its own patrimony to the University of Costa Rica, the Technological Institute of Costa Rica,\n\nto the Universidad Nacional and to the Universidad Estatal a Distancia and shall create for them their own revenues, independently of those originating in these institutions. Furthermore, it shall maintain—with current revenues and with others that may be necessary—a special fund for the financing of State Higher Education. The Banco Central de Costa Rica shall administer that fund and, each month, shall distribute it in twelfths, at the order of the aforementioned institutions, according to the distribution determined by the body responsible for the coordination of state university higher education. The revenues of that special fund may not be abolished or diminished, unless other improved revenues are simultaneously created to replace them. The body responsible for the coordination of State University Higher Education shall prepare a national plan for this education, taking into account the guidelines established by the current Plan Nacional de Desarrollo. That plan must be concluded, moreover,\n\n...delay, on June 30 of each year divisible by five, and shall cover the immediately following five-year period. It shall include both the operating expenditures and the investment expenditures deemed necessary for the proper performance of the institutions mentioned in this article. The Executive Branch shall include, in the ordinary expenditure budget of the Republic, the corresponding budget line, indicated in the plan adjusted according to the variation in the purchasing power of the currency. Any dispute that arises regarding the approval of the budget amount for the national plan for State Higher Education shall be resolved by the Legislative Assembly. Transitory.- During the 1981-1985 five-year period, the distribution of the special fund referred to in this article shall be made as follows: 59% for the University of Costa Rica, 11.5% for the Technological Institute of Costa Rica, 23.5%\n\nfor the Universidad Nacional and 6% for the Universidad Estatal a Distancia.\" (The underlining is not from the original) (Thus amended by Article 1° of Law No. 6580 of May 18, 1981). The preceding article is closely related to Article 84, already discussed, insofar as the FEES is conceived as an instrument designed by the derived constituent power to guarantee the constitutional autonomy of the state universities through ensuring their financial autonomy, as it contemplates the resources that must be allocated for the proper performance of those institutions and that forms part of that eight percent (8%) of GDP, which, according to Article 78 of the same Fundamental Norm, is destined for state education. Let us recall that financial autonomy has been understood by that Constitutional Chamber in judgment No. 2008-9567 of 10:00 a.m. on June 11, 2008, as \"the capacity to have sufficient resources to carry out\n\ntheir powers and attributions, hence administrative autonomy requires some degree of financial autonomy, as well as political autonomy.” At the time of rendering the mandatory report before that Chamber in the unconstitutionality action processed under case file no. 19-000990-0007-CO, the Office of the Attorney General (Procuraduría) determined, based on the legislative history of Law No. 6580 of May 18, 1981 (collected in legislative file no. 8516) which reformed the article 85 under study, giving it its current wording, the inclination of the derived constituent legislator for the formula of planning instead of the allocation of a fixed percentage of the budget for public higher education, as a mechanism to guarantee at the constitutional level that the Executive Branch will provide public universities with the necessary resources for their support and the fulfillment of their essential purposes, since those financing needs would be included in the National Plan for state Higher Education (Plan Nacional de la Educación Superior estatal) based on the objectives set by\n\nthose higher education institutions for each five-year period, which, in any case, could not be disconnected from the country's existing economic reality, and for that reason the constitutional provision that the PLAN must be prepared \"taking into account the guidelines established by the current National Development Plan.\" Thus, the deputies of that time in favor of planning considered that a fixed percentage would not guarantee that the amount of FEES resources would maintain an adequate relationship with the true financing needs of the state universities.\" In this regard, we take the liberty of recalling, again, the words of then-deputy Cerdas Cruz at the moment of justifying his affirmative vote for the approval of Law No. 6580, and which summarizes, in our opinion, the existing debate and the scope and objectives of the constitutional reform to article 85 under comment: \"On the other hand, time frames are established so that this higher education plan is prepared and\n\nto the country, and the Executive Branch is ordered to include in the Ordinary Budget of Expenditures of the Republic the corresponding item indicated in the plan, adjusted according to the variation in the purchasing power of the currency. Here is a new guarantee and a new protection that the universities will not be left unprotected in terms of financing, and he adds in a very interesting manner: that any dispute that arises regarding the approval of the budgetary amount of the national state higher education plan shall be resolved by the Legislative Assembly; that is, the possibility of democratic control is established, and of a balance of powers with the intervention of the Legislative Assembly when the Executive Branch does not wish to respect the spirit and the letter that are hidden behind these reform provisions to Article 85 of the Constitution.\n\nPolicy. I am firmly convinced that it is necessary for this reform to Article 85 to be adequately studied and understood not only by the university authorities and the political leaders of the various organizations represented here in this Assembly, but that a true national awareness must exist regarding the purposes and objectives that determined this reform in Article 85. Among the central purposes is the defense and consolidation of a university autonomy that has been the norm, principle, and direction of all the democratic political movements of Costa Rica. It is also an objective of this reform to situate the university and to establish those higher education entities in a fluid and natural connection with the institutional, economic, and social context of the country. Costa Rica has made a gigantic effort in terms of investment to finance higher education, and it is not only logical but a public necessity\n\nthat those higher education efforts maintain a close and as coordinated a relationship as possible with the global development effort, despite the sorrows that Costa Rican society is attempting to overcome through public investments and through the national economic development effort. On the other hand, it seems to me very important that higher education maintain a clear awareness in its discussion and coordination with the authorities who at that time hold the Executive Power, maintaining a clear awareness that the State funds which are managed are funds that come from a very serious and very arduous effort by all of Costa Rican society, which it gives with the joy of contributing to a democratic development of the national culture.\" (Folios 637 and 638. The underlining is not from the original). On the other hand, Article 85, in its fourth paragraph, expresses one of the ways in\n\nthat the autonomy enjoyed by the universities in defining their budget is manifested, when it establishes that the PLANS “will include both the operating expenditures (egresos de operación) and the investment expenditures (egresos de inversión) deemed necessary for the proper performance of the institutions mentioned in this article.” Beyond the fact that the referred plan could not disregard the economic situation the country was going through, the following paragraph closed the designed formula with the indication that the Executive Branch (Poder Ejecutivo) must include in the ordinary expenditure budget “the corresponding line item, indicated in the plan, adjusted according to the variation in the purchasing power of the currency.” This adjustment was due, as explained in the same background of the reform, to the fact that since the plan lasts five years, the figures of the first year had to be adjusted for the following four years with any of the indicators of loss of purchasing value of the colón, so that the\n\namounts recorded in the plan during the first year be adjusted annually so that in real terms they remain stable (see folio 108). What is relevant, then, for the purposes of what is discussed in this action, is that Article 85 under discussion expressly recognizes the full availability of the income received through the FEES for state universities without undue conditions and in its entirety, in order to exercise their own powers and, especially, those that are configured as exclusive. Thus, it is they who decide what to do with the resources received through the aforementioned fund, which is then distributed among all of them for the purpose of defining the respective university budgets. The Office of the Attorney General (Procuraduría) understands that the restriction on the growth of current expenditure through the application of the fiscal rule, in the formulation that each public university institution makes of its own budget, constitutes a limitation on the use of the income received from the FEES, and therefore, on the autonomy\n\nconstitutionally guaranteed to define its revenue and expenditure plan, whose validity is questioned by the appellants for its apparent lack of constitutional foundation. The following section will be devoted to the examination of this and other considerations.\n\n**B. CONCEPT, NATURE & LEGAL FOUNDATION OF THE FISCAL RULE**\n\nAs pointed out by the specialized literature, the establishment of fiscal rules by Western States has become a popular vehicle for imposing a certain fiscal discipline, in the face of problems of fiscal deficit and increase in public debt, especially after the economic crisis that ravaged the most developed economies of the planet approximately a decade ago and whose aftermath is still being felt. In the case of the member States of the European Union - following the American example - the path employed has been to elevate these rules to the highest legal rank, incorporating, by way of constitutional reform, a series of rotation mechanisms\n\nof the fiscal and budgetary power that go beyond budgetary stability per se, to the point that some authors have termed it the \"constitutionalization of the economic crisis.\" In this way, the intervention of the Federal Government or central Administration is legitimized—as guarantor of the general economic stability of the State itself—by imposing budgetary limits on the various sub-national territorial organizations endowed with political and financial autonomy and, therefore, with the freedom to prepare their own budgets (case of the federated States, Autonomous Communities, and local Governments), insofar as budgetary policy is conceived as an instrument of general economic policy, the ordering of which is attributed to the State. The need to maintain a certain balance between public revenues and expenditures, in which the principle of budgetary stability is summarized, finds an answer in our environment in the first paragraph of article 176 of the Political Constitution, inasmuch as it establishes: \"ARTICLE 176.- The ordinary budget of the Republic includes all\n\nincome probables y todos los gastos autorizados de la administración pública, durante todo el año económico. En ningún caso el monto de los gastos presupuestos podrá exceder el de los ingresos probables. Las Municipalidades y las instituciones autónomas observarán las reglas anteriores para dictar sus presupuestos. El presupuesto de la República se emitirá para el término de un año, del primero de enero al treinta y uno de diciembre.” (The underlining is not from the original). From the preceding provision, the jurisprudence of that Chamber has extracted the basis of the constitutional principle of financial or budget balance, thus recently reaffirmed in the well-known vote No. 2018-19511, at 21:45 hours on November 23, 2018, and which the legislator defined in article 5, section c), of the Law of the Financial Administration of the Republic and Public Budgets, in the following terms: “c) Principle of budget balance (Principio de equilibrio\n\nbudgetary. The budget must reflect the balance between revenues, expenditures, and sources of financing.” We are, therefore, faced with a constitutional mandate that, as such, binds all public powers and that, therefore, in its principal sense, falls outside the availability or competence of the State and other public entities, regardless of their degree of autonomy, as that high Court so considered in the cited vote no. 2018-19511: “To begin the examination of this point, the Chamber emphasizes that the development of activities and the fulfillment of the purposes of the Central State and, in general, of the entities of the Public Administration are not unlinked from the budgeted rules contemplated in the Political Constitution. Regardless of the degree of autonomy of each institution, our Magna Carta is clear in understanding the principle of budgetary balance as a transversal axis of the legal order (...)\n\nThe foregoing regulations bear an evident relationship to the sound management of public resources, an obligation that extends to all Institutions and their officials (section 11 of the Constitución Política). \"(The underlining is not from the original). In this regard, there appears to be no discrepancy among the appellant institutions themselves concerning their subjection to this constitutional principle in the preparation of their income and expenditure plans, together with the rest of the budgetary principles, as they even invoke in that same sense the scope of application of article 1, subsection d) of the Ley de la Administración Financiera de la República y Presupuestos Públicos. A different matter is the development of the referred principle of budget balance, since the main meaning contained in Ley n.°8131 admits various formulations for its due observance, one of them being the use of the fiscal rule, as defined by article 9 of the Ley de Fortalecimiento de las Finanzas Públicas: \"ARTICLE 9- Definition of the fiscal rule. Limit on\n\n…growth of current spending, subject to a proportion of the average growth of nominal GDP and to the debt-to-GDP ratio of the Central Government.” As the Procuraduría made clear two years ago when it rendered its technical-legal opinion regarding the bill entitled “Ley de responsabilidad fiscal de la República”; corresponding to legislative file no. 19.952, through pronouncement OJ-060-2017, 26 May, the previous formulation of a fiscal rule, consisting of a rule on current spending, is only one of the different public finance management options existing in the budget process; highlighting, in addition, how in fact it happens with Ley n.°9635, which being of an infra-constitutional fiscal rule rank, as legal the Asamblea Legislativa would not be bound to it in the future, so it could legislate to the contrary, including adopting legislation that expands the expenditures charged to the Presupuesto de la República:\n\n**C.- A SINGLE FISCAL RULE ON EXPENDITURE**\n\nThe bill emphasizes that fiscal rules may establish numerical limits and qualitative rules of fiscal responsibility. Regarding numerical limits, it refers to several types of rules, according to the type of aggregate it limits. Thus, *debt rules* that establish a debt limit as a percentage of GDP; *budget balance rules* that directly limit the variable that influences the debt limit; *expenditure rules* that establish limits on primary, current, or total expenditure; or *revenue rules* that set ceilings or floors on revenues to boost tax collection or prevent an excessive fiscal burden. Among those types of rules, the bill opts for an expenditure rule that limits the growth of current expenditure, subject to a proportion of the growth of real GDP and\n\n...the Central Government debt-to-GDP ratio. This would be established by proposed Article 6. Article 7 adds two variables for estimating the growth of current expenditure: a) the level of Central Government debt as a percentage of GDP and b) the average growth of real GDP for the four years prior to the year of national budget formulation. Based on these, 4 debt parameters for the Central Government are set for the growth of current expenditure of non-financial public entities. Neither in the establishment of the fiscal rule nor in the definition of the debt parameters is the debt of the rest of the non-financial public sector taken into account. The Statement of Motives for the bill affirms that this debt corresponds to investment. Notwithstanding this, that sector would be affected by the application of the rule, since non-financial entities can\n\n...to be a \"fiscal risk\" for the Central Government, which is why the project deems it advisable to control the growth of current expenditure (gasto corriente) of the entities that comprise it. The foregoing means, then, that the entities of the non-financial public sector, regardless of the degree of autonomy that the Constitution or the law guarantees them, will be subject to that expenditure limit. A limit that will not be referenced to their debt-to-GDP or expenditure-to-PIE ratio, but rather to the Central Government debt-to-GDP ratio, a debt which, if it grows, will imply a greater restriction on current expenditure for those non-financial entities. In order for the current expenditure of these entities to be able to grow at the rate of GDP, it would be required that the level of the Central Government's debt be considered sustainable in the medium and long term. That is to say, a general limit is established, which does not contemplate the situation\n\nof that limit, there is no possibility for the Executive Branch to later make an exception, since Article 3 does not permit it.” (The underlining is not from the original). That said, the plaintiff entities argue that the fiscal rule ultimately chosen by the legislator, insofar as it limits the growth of their current expenditure in the preparation of their budget, based on the Central Government debt-GDP ratio according to the parameters set forth in Article 11 of the Law to Strengthen Public Finances (Ley de Fortalecimiento de las Finanzas Públicas), unduly limits their autonomy according to the scope defined by the jurisprudence of this Chamber, regarding the freedom to define or schedule their development goals and objectives and to allocate the means and resources they deem appropriate to achieve them. The Attorney General’s Office (Procuraduría) understands that, even though the fiscal rule is limited to\n\ncurrent and not to capital expenditures—the latter understood as expenditures linked to investment operations, such as the acquisition of land, buildings, machinery, and other capital goods; and the former to the remuneration of officials and the payment of the goods and services necessary for the current functioning of the public service provided by the state universities—it does impose a budgetary restriction that may affect the objectives and goals set to expand their social work, for example, the extension of coverage of student scholarships or University Community Work, or to develop the substantive work of higher education and scientific research. Consider, by way of example, that while the investment in the purchase of a new building for laboratories might not be subject to the fiscal rule, the hiring of new research personnel or the very equipment and material necessary for its commissioning would, upon entering the category of current expenditures of the institution,\n\ncurrents. From this perspective, in the opinion of this advisory body of the Chamber, the fiscal rule regulated in Law No. 9635 does condition the exercise of university autonomy, in the terms as it has been understood by the same constitutional jurisprudence according to (sic) the analysis carried out in the first section of this Report, specifically, the power of higher education institutions to define their action plans and programs and to dispose of the means or resources to carry them out through the corresponding budget formulation. Thereby, as it is a legal institute guaranteed by the Fundamental Norm itself in its articles 84 and 85, the ideal scenario for its adequate articulation with said mandatory fiscal discipline measure not only for state universities, but for the rest of the decentralized non-financial public sector, would have been, as it was thus suggested in the cited legal opinion OJ-060-2017, that it be enshrined in the Constitution itself, following the example of\n\nof the countries of continental Europe, thus giving the fiscal rule a binding and lasting character vis-à-vis the ordinary legislator itself. However, from the analysis of the aforementioned ruling no. 2018-19511, it follows that the constitutional basis for the fiscal rule that this Chamber found lay in the principle of budgetary balance, without which, from a constitutional standpoint, it would not be understood that the fiscal rule embodied through ordinary law could constrain the scope of university autonomy to the extent that the public teaching centers sheltered by it cannot freely define their budgets. In this regard, the following considerations expressed in the aforementioned resolution serve: “From this panorama, the Chamber observes sufficient technical criteria to (accredit) that, at this time, the fiscal situation of the country does not guarantee the financial sustainability of the State and, therefore, of the fulfillment of its constitutional obligations. On the particular matter, in the face of a critical condition in public finances (duly supported by technical studies), that puts at risk the\n\nthe effective or adequate execution of services of constitutional relevance, the decision of the competent authorities to define and apply suitable measures to mitigate or solve the problem is not only reasonable, but, even more so, is unavoidable… In this context, a harmonious interpretation of the principle of budgetary balance and the Social State of Law (Estado Social de Derecho) is of special importance. The Chamber (Sala) warns that, for a Social State of Law to persist and fulfill its constitutional and legal purposes, it becomes necessary to carry out sound management of public finances; that is, an equilibrium must inexorably exist between welfare rights (derechos prestacionales) and state economic solvency, because the former depend on the material possibilities enabled by the latter, while the purpose of the latter is to strengthen the development of\n\na solidary political system, one in which the less favored strata of society find protection for their human dignity and their right to progress. Stated differently, the \"ideal\" Social State of Law (Estado Social de Derecho) is the \"possible\" Social State of Law, against which one acts precisely when the principle of budgetary balance is breached, since, in the medium term, this seriously jeopardizes or entirely prevents obtaining the necessary resources to sustain a \"real\" Social State of Law, one which the most vulnerable can truly and effectively enjoy. Ensuring, then, that we do not fall into a failed or paper Constitution, where constitutionally mandated social welfare rights cannot be made effective, is a fundamental task of this Chamber, strictly\n\nwithin the scope of its powers… Precisely, Title IV “Fiscal Responsibility of the Republic” of the consulted bill develops an economic policy of public spending that, due to its national-level impact on public finance management, involves the central government's relationship with the rest of the entities and bodies of the non-financial public sector. As provided in Article 9 of the consulted bill, this fiscal rule consists of setting a limit on the growth of current expenditure, subject to a proportion of the average nominal GDP growth and the Central Government's debt-to-GDP ratio, which means an economic policy rule that encompasses PANI. However, this alone does not violate the Political Constitution, as discussed below…\n\nNow, the absence of\n\n...it is a matter of the principle of budgetary equilibrium being above other principles, rights, and constitutional values. Rather, it is a matter of carrying out an optimization exercise of the various constitutional elements at play. Within this framework, if we understand that the Social State of Law, an institution that is also a constitutional principle, can be seriously harmed when a particularly severe fiscal crisis threatens the financial sustainability of the country and, with it, the financing of its services with public funds, then one easily perceives the need to weigh that principle with that of Financial Equilibrium and, based on such exercise,...\n\nto configure a legal response that, without emptying the Social State of Law (Estado Social de Derecho) of its content, ensures its sustainability and survival… That said, the project's fiscal rules aim to adjust the national economy and public spending across the entire Public Administration, subjecting them to these constitutional parameters. This aim, far from contradicting the Constitution, is in accordance with its precepts. For this reason, the provision and potential application of fiscal measures per se does not imply an injury to the autonomy of the CCSS, but rather the realization of the constitutional principles of budget balance and sound management of public resources, which, thanks to\n\ntheir legal nature, radiate over all positive law and serve as a hermeneutical guideline, even with respect to the Political Constitution. Within this context, certainly, the administration and governance of social security are entrusted to the CCSS, as stipulated by article 73 of the Constitution, which does not preclude the aforementioned constitutional principles from determining the manner of understanding those attributes and the general parameters that must always be respected.\" (The underlining is not from the original). Consequently, if the Constitutional Chamber considers that the constitutional basis for the fiscal rule, according to the terms of ruling 2018-19511, is sufficient to provide constitutional foundation for the restrictions that said rule entails for university autonomy, then its application to higher education centers\n\nhigher education public would be viable from a constitutional standpoint. \n\n**C. ANALYSIS OF THE CONSTITUTIONAL CONFORMITY OF EACH OF THE CHALLENGED ARTICLES** \n\nIf, as noted, this Constitutional Chamber opts to provide constitutional support for the application of the fiscal rule to public higher education centers insofar as said rule finds its basis in the constitutional principle of budgetary balance, as the Chamber itself indicated in the aforementioned judgment, the following challenged articles would be in accordance with Articles 89 and 85 of the Fundamental Norm, since they should not exempt state universities from their application, to the extent that they must cede part of their competence in the definition of their income and expense plans as part of the State’s general public spending economic policy: \n\n“ARTICLE 5- Scope of application The fiscal rule shall be applicable to the budgets of the entities and bodies of the non-public sector\n\n...regarding the financial rescue (rescate financiero).\" \"ARTICLE 6- Exceptions The following institutions are exempt from the scope of coverage of this title: a) The Costa Rican Social Security Fund (Caja Costarricense de Seguro Social, CCSS), solely with respect to the resources of the disability, old age, and death (invalidez, vejez y muerte, IVM) regime and the non-contributory regime administered by said Institution. b) Any public enterprise that directly participates in any activity open to competition, but only in relation to said activity. This rule shall cease to apply when the enterprise requests a financial rescue (rescate financiero) from the Executive Branch or when its debt-to-assets ratio exceeds fifty percent (50%). c) The Costa Rican Petroleum Refinery (Refinadora Costarricense de Petróleo, Recope) solely with respect to the petroleum bill.\"\n\n\"ARTICLE 11- Debt ranges to be considered to determine the growth of current expenditure (gasto corriente). The current expenditure (gasto corriente) of the budgets of the entities and bodies of the non-financial public sector shall grow according to the following\n\ndebt parameters of the Central Government. a) When the debt at the close of the budget year prior to the year of application of the fiscal rule does not exceed thirty percent (30% of GDP, or the current expenditure-to-GDP ratio of the Central Government is seventeen percent (17%), the year-on-year growth of current expenditure shall not exceed the average growth of nominal GDP. b) When the debt at the close of the budget year, prior to the year of application of the fiscal rule, is equal to or greater than thirty percent (30%) of GDP, but less than forty-five percent (45%) of GDP, the year-on-year growth of current expenditure shall not exceed eighty-five percent (85%) of the average growth of nominal GDP. c) When the debt at the close of the budget year, prior to the year of application of the fiscal rule, is equal to or greater than forty-five percent (45%) of GDP, but less than\n\nto sixty percent (60%) of GDP, the year-on-year growth of current spending shall not exceed seventy-five percent (75%) of the average growth of nominal GDP. d) When the debt at the close of the budget year prior to the year of application of the fiscal rule is equal to or greater than sixty percent (60%) of GDP, the year-on-year growth of total spending shall not exceed sixty-five percent (65%) of the average growth of nominal GDP.\"\n\n\"ARTICLE 14- Publication of the fiscal rule scenario The Ministry of Finance shall communicate the growth rate for current spending resulting from the fiscal rule calculation, using the official debt and average GDP figures. This rate shall be communicated jointly with the budget directives and shall be applied in the formulation of the budget for the following year. In the event that the Ministry of Finance does not communicate the growth rate for current spending, it shall be assumed that the corresponding\n\n...applicable to the budget year shall be the rule of the current scenario.” With respect to Articles 17 and 19 of the Law for the Strengthening of Public Finances (Ley de Fortalecimiento de las Finanzas Públicas), also the object of challenge, the Procuraduría recommends their interpretation conforming, under the risk that not doing so would empty the guarantee of university autonomy of content and render the regulation of constitutional Article 85 ineffective. As will be recalled, the Article 17 in question is challenged because the applicant universities consider that it diverts the constitutional purpose of the FEES resources to ends alien to that provided by Article 85 of the Carta Política in favor of state university higher education, when it establishes: “ARTICLE 17 Destination of free surpluses generated by the application of the rule In the event that public entities that have liabilities generate a free surplus at the end of each budget year, this shall be allocated to amortize their own debt. Regarding the free surplus\n\ngenerated by entities that receive transfers from the national budget as a consequence of the application of the fiscal rule, such surplus (superávit) must be returned to the national budget in the year following that in which said surplus was generated, to be used for debt amortization or public investment.” In our view, when the transcribed precept speaks of free surplus (superávit libre), it is not even applicable to the FEES, because this fund is comprised of resources with a specific destination determined by the Political Constitution, whereby it could only give rise to a specific, non-free surplus (superávit específico no libre). On this point, the Procuraduría had already indicated, since pronouncement 0J-071-2000 of July 3—reiterated in opinion C-274-2006 of July 5—the legal nature of these funds as tied, unavailable, consequently, for the ordinary legislator and the budgeted: “For the purpose of the analysis we are carrying out, we must bear in mind that the special fund for the financing of state higher education (fondo especial para el financiamiento de la educación superior estatal)\n\nitalic\\\">has the characteristic that its resources have a specific purpose assigned by the Political Constitution, specifically, to finance state higher education. From this perspective, these funds, “tied” in the language of the Constitutional Chamber (vote no. 5754-94), cannot be allocated to any other end than that which has been established by the Fundamental Charter. Indeed, only the abolition and reduction of the revenues of this special fund is permitted if other better ones are simultaneously created to replace them. Thus, we can posit a preliminary conclusion, in the sense that the resources that make up the special fund have a specific constitutional purpose and their revenues can only be abolished and reduced if other better ones are created to replace them.” Based on the foregoing, Article 17 of the Public Finance Strengthening Law, by regulating a scenario different from the nature of the FEES resources, namely the so-called surplus\n\nThus, the fact that the funds from FEES are, by their specific and not free purpose, earmarked, cannot be considered unconstitutional for the reasons indicated by the appealing institutions. With respect to the challenged Article 19, the petitioning institutions consider it an undue intrusion by the Executive Branch, specifically by the Technical Secretariat of the Budgetary Authority (Secretaría Técnica de la Autoridad Presupuestaria), into an aspect inherent to their university autonomy, such as the preparation of their budgets, by subjecting their mere presentation to the Comptroller General of the Republic (Contraloría General de la República) to said body certifying compliance with the fiscal rule (regla fiscal). The rule in question reads as follows: “ARTÍCULO 19- Compliance with the fiscal rule during the formulation and budgeting stages The Ministry of Finance (Ministerio de Hacienda) shall make the budgetary allocation for the budget items that make up the central Administration in full compliance with the provisions of this law and in Law No. 8131, Financial Administration\n\nthe Republic and Public Budgets, of 18 September 2001. The Dirección General de Presupuesto Nacional shall verify that the budget modifications and extraordinary budgets comply with the provisions established in Article 11 of the present law and in Law N.° 8131. In the event that such modifications entail non-compliance with the rule established herein, this Directorate must apply the provisions of Article 177 of the Constitución Política, and shall inform the Minister of Hacienda and the President of the Republic. In the case of resources for deconcentrated organs, the Minister of Hacienda shall decide, through fiscal sufficiency criteria, respect for fundamental rights, and following the priorities of the Plan Nacional de Desarrollo, the amount to budget for these organs and their growth. The rest of the non-financial public sector entities must prepare their ordinary budget, extraordinary budget, and budget modifications in full adherence to the provisions of Article\n\n11 of this law. The verification of compliance with this rule shall be the responsibility of the Contraloría General de la República, which shall consider, for purposes of the legality review (bloque de legalidad) it conducts, the certification to be issued by the Secretaría Técnica de la Autoridad Presupuestaria regarding compliance with the fiscal rule (regla fiscal). In the event that the Secretaría Técnica de la Autoridad Presupuestaria certifies a breach of the fiscal rule by non-financial public sector entities, the Contraloría General de la República shall assess that certification and resolve as appropriate. To address the provisions of this rule, the entities referred to in Article 5 of this law, whose budget is subject to approval by the Contraloría General de la República, must submit a copy of their ordinary and extraordinary budgets and budget amendments to the Secretaría Técnica de la Autoridad Presupuestaria. The Secretaría Técnica de la Autoridad Presupuestaria shall verify that the amendments\n\nbudgetary resources and the ordinary and extraordinary budgets of the entities of the rest of the non-financial public sector comply with the provisions established in article 11 of this law. Should situations arise that could lead to non-compliance with the rule, the Secretaría Técnica de la Autoridad Presupuestaria must inform the Contraloría General de la República for the corresponding action. Likewise, the entities of the non-financial public sector shall submit a copy of their quarterly budget execution reports (ejecuciones trimestrales) and their budget liquidation (liquidación presupuestaria) to the Secretaría Técnica de la Autoridad Presupuestaria. The Secretaría Técnica de la Autoridad Presupuestaria must communicate the results of the verifications ordered in this regulation, in accordance with the following deadlines, no later than the last business day of the month of October of each year for the review of initial budgets, and within a period of ten business days, counted from the receipt of the corresponding budget document for extraordinary budgets and modifications.\" (The underlining is not from the original). In coherence\n\nwith the decision rendered by that Constitutional Chamber in resolution No. 919-99 of 9:15 a.m. on February 12, 1999, regarding the constitutionality review of the then bill on Financial Administration of the Republic and Public Budgets, whose Considerando V analyzed a similar scenario in which the rule established that the Budgetary Authority had to issue a certification that the decentralized Administration had complied with the general and specific guidelines of the budget policy, in order to be able to process its budgets, we consider that Article 19 under discussion would not be unconstitutional provided it is interpreted that the certification to be issued by the Technical Secretariat of the Budgetary Authority is merely a communication of information to the Comptroller General of the Republic. Therefore, if the Budgetary Authority were to indicate (sic) that the budget of the respective university does not comply with the fiscal rule, said body could in no way substitute it in its competence to prepare\n\n... reformulate its budget, a substitution that would indeed be considered unconstitutional for violating its university autonomy in the terms explained earlier. Note that the aforementioned article established that the Contraloría, in accordance with its constitutional powers, will evaluate that document submitted by the Budgetary Authority and will resolve as appropriate, without involving this latter body in the preparation of the budgets of such entities beyond that act of information. Finally, Article 26 of the referenced Law No. 9635 is also challenged, as the appellants consider that it subjects their officials involved in the budgetary process to an extraneous sanctioning regime that also breaches university autonomy: “ARTICLE 26- Sanctions. The unjustified noncompliance with the fiscal rule and its control constitutes a serious offense against the Public Treasury, and shall be sanctioned as indicated in Article 68 of Law No. 7428, Ley Orgánica de la Contraloría General de la República, of September 7, 1994. What\n\nbefore, without prejudice to the provisions of Article 339 of Law No. 4573, Criminal Code (Código Penal), of 4 May 1970. It falls to the Legislative Assembly to proceed against the comptroller general and the deputy comptroller general of the Republic who fail in their duty to duly control compliance with the fiscal rule, in the terms established in Article 43 of Law No. 7428, and considering the provisions of Law No. 8292, General Law on Internal Control (Ley General de Control Interno), of 31 July 2002.” The Office of the Attorney General (Procuraduría) considers that the potential application of the transcribed provision to the university officials responsible for preparing the budgets of those teaching institutions does not conflict with their sphere of autonomy, since, as analyzed in the preceding pages, these sanctions fall within the broad regime of control of the Public Treasury (Hacienda Pública) exercised by the Office of the Comptroller General of the Republic (Contraloría General de la República) and which is configured as a constitutional limit to their actions.\n\nIV. CONCLUSION\n\nBased on\n\nbased on the foregoing considerations, it is the opinion of the Procuraduría that: 1) The action is admissible. 2) On the merits, the action must be dismissed if this Chamber understands that the constitutional basis for the fiscal rule provided by the principle of budgetary equilibrium, as expressed in judgment number 2018-19511, is sufficient to validate the restriction that said rule imposes on the exercise of university autonomy guaranteed in Articles 84 and 85 of the Fundamental Norm, insofar as said rule conditions the definition of the revenue and expenditure plan prepared by each state university higher education institution, for the sake of achieving the general financial stability of the State. 3) It is recommended to interpret that Article 17 of the Law for Strengthening Public Finances, insofar as it regulates the “free surplus (superávit libre),” is not applicable to the FEES, since the resources of said fund have a specific destination given by the derived constituent power itself. 4) It is recommended to interpret the\n\narticle 19 of the Law for the Strengthening of Public Finances, in the sense that the certification that the Technical Secretariat of the Budgetary Authority is responsible for issuing to the Comptroller General of the Republic regarding compliance with the fiscal rule (regla fiscal) in relation to the state universities, constitutes a mere communication of information to the Comptroller General of the Republic so that it may resolve as appropriate, without in any way the Budgetary Authority being able to substitute them in its competence to prepare or reformulate the budget of each one of them.”\n\n**7**.- By brief received in the Chamber on August 12, 2019, Enrique Egloff Gerli appears, in his capacity as president of the Asociación Cámara de Industrias de Costa Rica. He proposes joinder (coadyuvancia) in these terms: “**1. The legal content of the principle of balance 1.-** The jurisprudence of this Chamber has specified the scope of this constitutional principle by providing that “the principle of Financial Balance implies that expenses may exceed income, but that not all probable income must be spent. It must be considered that the concept of Budget, per se, is understood\n\nnot only as a unitary and accounting document, but as an instrument of social development and planning of the State's economy, consolidating its forward-looking, planning, and effective control nature, with the purpose of satisfying, within the framework of constitutional principles, the public ends for which it was created” (Voto 5979-2006). 2.- It is worth emphasizing the second content of this principle, in the sense that currently the principle of financial balance does not refer to mere accounting balance, since the Budget must be seen as a technical-organizing instrument of the State's economy, thus consolidating its function of plan and control. 3.- In other words, the principle of budgetary balance, from its substantive angle, attends to the sustainability and health of the State's fiscal accounts in general and only partly to him. 4.- Therefore, the principle of financial balance is applicable to the budget formulation of all public institutions, regardless of the degree of autonomy that the Political Constitution guarantees them for the\n\nthe exercise of their specific duties. The principle of financial equilibrium permeates the budgetary activity of all state entities and organs, which is underscored by the fact that the budgets of the Central Administration must be approved by the Legislative Assembly (article 176 of the Constitution) and those of the other entities and organs with instrumental legal personality by the Comptroller General of the Republic (article 184 subsection 2) of the Constitution). That is, the budgets of all public institutions are invariably approved by heteronomous entities, precisely to guarantee, among other aspects, that the principle of financial equilibrium is respected. **5.-** In this vein, the jurisprudence of that Chamber has established that the purposes of the central Public Administration and of the other public entities are not disconnected from the budgetary rules set forth in the Political Constitution, since “regardless of the degree of autonomy of each institution, **our Magna Carta is clear in encompassing the principle of budgetary equilibrium** (sic) **as a transversal axis of the legal system.** ...\n\nThe foregoing rule bears an obvious relationship to the sound management of public resources, **an obligation that extends to all institutions and public officials** (subsection 11 of the Political Constitution)” (Voto 19511-2018). 6.- The logical legal reason for an external body to approve the budgets of public institutions is precisely to control that in their preparation and content they conform to the fiscal possibilities of the State in general and comply (sic) with the fiscal principles and obligations required by current legislation. **7.**- In the specific case of state universities, the principle of financial equilibrium implies that their budgeted expenditures must not only not exceed the amount of their total revenues (including probable transfers from the Executive Branch), but also that the annual percentage increase in their expenditures must not be higher than the growth of the national economy, so that there is congruence between the probable revenues coming from the central government plus their own income (total revenues) and the percentage of increase in their expenditures for each particular year. 8.- This principle, which pursues a sound administration\n\nfiscal, intends that the expenditures of public institutions, without exception, be adjusted to their probable revenues, which cover both their own revenues and those they receive via transfers from the Executive Branch. There must, therefore, be a reasonable and fiscally sound relationship between the annual increase in expenditures and the probable revenues for each fiscal year of all state institutions. 9.- This relationship must necessarily and logically be established by the Executive Branch, which is the body that has the technical knowledge of what fiscal resources it may transfer to each institution annually. For this reason, the principle of financial equilibrium (equilibrio financiero) imposes on all public institutions, without any exception and regardless of the degree of constitutionally guaranteed autonomy, the obligation to adjust the growth of their budgets to the percentage of expenditures set by the Executive Branch each year. 10.- Let us recall, in any case, that one of the essential contents of this principle consists precisely of serving as a technical organizing instrument of the State's economy, thus consolidating its planning and control function. II.- The\n\n**constitutional basis of the fiscal rule (regla fiscal) 1** - Having clarified the concept of budget balance (equilibrio presupuestario), it is necessary to analyze the basis and content of the so-called fiscal rule (regla fiscal). **2.** - The fiscal rule (regla fiscal) derives directly from the principle of financial balance (equilibrio financiero). Indeed, if the fiscal rule (regla fiscal) is a specific mechanism to limit the growth of current spending, it is clear that its constitutional basis is found in the aforementioned principle of budget balance (equilibrio presupuestario). **3.** - One could argue that the fiscal rule (regla fiscal) is not expressly contemplated in the Constitution, and therefore it would not be a principle that could transversally permeate the budgets of all state institutions, especially those endowed with special autonomy at the constitutional level. **4.** - In the case of constitutional principles, we must remember that there are several types: first, those that are directly derivable from the ideology that permeates the system. For example, the democratic principle and the principle of political pluralism. **5.** Secondly, we have the principles that derive from the interpretation of two or more constitutional norms. For example, the constitutional guarantee of due process, a principle that is derived from the harmonious interpretation of the\n\nof Articles 39 and 41 of the Constitution. 3.- In third place, there are those principles that are presupposed by ordinary legislation to justify its constitutional validity. Its foundation is the Kelsenian principle of legal regularity, according to which the validity of a norm depends on its conformity with the superior stratum in the hierarchy of sources, such that every norm, ultimately and specifically in the case of laws, in order to be valid, must conform to a constitutional norm or principle. For example, the principle that establishes that mineral wealth is a public domain asset (bien demanial), which is not enshrined in the Constitution but rather in the Mining Code. However, it is peacefully accepted that the principle according to which mineral wealth is a public domain asset (bien demanial) finds its foundation in the Constitution itself with the status of a principle. 4.- Precisely, the fiscal rule (regla fiscal), although expressly enshrined only at the legal level, is in truth a constitutional principle derived from the constitutional norm that enshrines the principle of budgetary equilibrium,\n\nas well as the content of Article 9 of Chapter IV of the Law for the Strengthening of Public Finances, whose validity presupposes the existence of the constitutional principle of the fiscal rule according to the demands of the principle of legal regularity. 5.- In other words, the norm contained in Article 9 Chapter IV of the Law for the Strengthening of Public Finances is one of those constitutional principles presupposed by ordinary legislation in order to find its basis of validity in a higher norm and, in that way, comply with the Kelsenian principle of legal regularity. 6.- Therefore, the fiscal rule is an authentic constitutional principle that has the normative force of such principles and, therefore, integrates the parameter of constitutional validity. III.- Confrontation between the challenged legislation and the constitutional principle of the fiscal rule 1.- Articles 5, 6, 11, and 14 of the Law for the Strengthening of Public Finances find express constitutional basis in the principle of the fiscal rule, which, as was demonstrated in the previous section, has constitutional lineage. 2-\n\nIndeed, numeral 5 is founded on the cited constitutional principle insofar as it establishes that its scope of application is all non-financial public sector (sector público) entities and bodies. In reality, it meant state sector (sector estatal), since non-state public entities form part of the public sector (sector público) without, however, being subject to the fiscal rule (regla fiscal). **3.**.- Article 6 is limited to establishing the exceptions to the application of the fiscal rule (regla fiscal). The UCR could only allege that such a norm is unconstitutional by omission, since it does not include it among the institutions exempted from the application of the fiscal rule (regla fiscal). However, it does not do so. In any case, the exempted cases are those institutions that do not exercise public management, but rather activities of a financial nature, as is the case, among others, of the administration of the IVM funds by the CCSS. Consequently, this provision also finds express foundation in the constitutional principle of the fiscal rule (regla fiscal). **4.**.- The third norm, that is, Article 11, is limited to enshrining technical criteria for determining the growth of current spending (gasto corriente) in order\n\n...of establishing, in a technical manner, the current expenditure of the budgets of the entities and organs of the non-financial state sector. This is a technical mechanism to make possible and viable the concrete application of the fiscal rule. Therefore, if the latter has the rank of a constitutional principle, the challenged Article 11 has express constitutional foundation in that principle. **5.-** Article 14 also does not present defects of unconstitutionality, since the determination of the current expenditure growth rate resulting from the fiscal rule calculation is a matter whose competence is granted to the Executive branch and not to each institution in particular. The exercise of this competence by that Branch does not in any way harm the constitutionally guaranteed autonomy of state universities. 6.- Article 17 is also not unconstitutional, since this rule is not applicable to state universities. In effect, this rule regulates a different legal situation from the nature of the FEES resources; therefore, this alleged defect of unconstitutionality is legally nonexistent. 7.- The alleged violation of Article 19 is also not tenable,\n\nSince that legal provision does not grant the Budgetary Authority decision-making powers over the budgets of the state universities, but merely authorizes it to communicate to the Comptroller General's Office whether the budgets of those institutions comply with the fiscal rule. Therefore, the Budgetary Authority cannot give orders to the universities to re-elaborate their budgets if it determines that they violate the fiscal rule. Its competence is limited (se circunscribe) to notifying the CGR of any irregularities found. **8.-** The CGR, in the exercise of the powers granted to it by Article 184.2 of the Political Constitution, is the state body competent to obligate (obligar) the state universities to re-elaborate their budgets when they contravene the fiscal rule, under penalty (so pena) of denying their approval. **9.-** Finally, the sanctions established in Article 26 for the university officials responsible for preparing the budget of those institutions is not contrary to their constitutionally guaranteed autonomy, given that such sanctioning powers fall within the public treasury (Hacienda Pública) control regime exercised by the CGR and which configure a specific limit to such autonomy. Thus, these must be understood\n\n7. The Attorney General's Office, on behalf of the State, answered the action. It pointed out that, having reviewed articles 9, 10, and 11 of Law 9635, the principle of intangibility of the public domain was undermined, since in the State's opinion, public property had been irrationally converted into private property only to be reacquired by the State; that due to a clear conceptual confusion, the rule eliminated the prohibition on alienating and seizing public domain property, transforming it from imprescriptible to prescriptible, and considered that it turned into aliens and forfeiters a series of individuals who, according to what was reported, had been paying for decades to have a decent place to live. It cited the ruling of the Constitutional Chamber, Voto 4654-2003. It emphasized that the law would turn into mere private assets a series of properties that have historically belonged to the public domain; that ownership in the concept of private property, as established in article 45 of the Political Constitution, is entirely alien to public domain goods, which would be degraded with the application of the law; in short, \"individuals who possess public domain property will become owners by virtue of a law that, precisely, orders that the condominium regime be applied to them, implying in practice that they will be able to act as true owners with all the powers of sale, constitution of rights, pledge, mortgage, etc., in open contradiction to the regime of use and enjoyment regarding public property, which only authorizes a purely tenuous possession, insusceptible of transforming into a right of private property, and furthermore subject to conditions of public interest and exercise of police power, preeminently and necessarily typical of the conduct of every public institution.\" PETITION. Based on the legal reasons invoked, I request that this action of unconstitutionality be dismissed in all its aspects in a judgment, because the challenged regulations are in conformity with the Law of the Constitution.\"\n\n8.- By resolution of 13:50 hours on 13 August 2019, the Presidency of the Chamber accepted the answers to the hearings granted and accepted the joinder of Enrique Egloff Gerli, filed in his capacity as president of the Asociación Cámara de Industrias de Costa Rica.\n\n9.- By a writing incorporated into the digital case file on 22 August 2019, substitute magistrate Marta Eugenia Esquivel Rodríguez filed a recusal (inhibitoria).\n\n10.- By resolution of 13:40 hours on 22 August 2019, the Presidency of the Chamber rejected the recusal of substitute magistrate Marta Eugenia Esquivel Rodríguez.\n\n11.- By a writing received in the Chamber on 30 August 2019, Gastón Baudrit Ruíz appeared, in his capacity as special judicial attorney-in-fact for the plaintiffs. He states the following: \"With the purpose of clarifying some inaccuracies contained in the arguments presented by the Procuraduría General de la República, the Ministerio de Hacienda and the Contraloría General de la República in the present action, to the detriment of the correct interpretation that should be\n\ngiven our constitutional regime, we consider it necessary to indicate: **1.- The attributes of the whole do not follow its components:** The characteristics that the National Budget must comply with according to the constitutional principles and norms in force have been very well expressed. None of the submissions—including that of the Office of the Attorney General of the Republic (Procuraduría General de la República)—have entered into considering or assessing the differences between the projection and composition of the current expenses of the national budget, subject to the fiscal rule, from what constitutes the Special Fund for the Financing of State University Higher Education (Fondo Especial para el Financiamiento de la Educación Superior Universitaria Estatal, FEES). THE (sic) FEES is not a budget but rather a pure and simple financial obligation on the part of the Costa Rican State, expressed through the execution of cash transfers, not public debt. This obligation is included within the State's obligation to allocate no less than 8% of the Gross Domestic Product to public spending on Public Education (Article 78 of the Political Constitution). **2.- Constitutional growth rule for the FEES:** In the same way as the existence of the fiscal rule for the budget has been insisted upon\n\nnational, none of the arguments presented in this case file (expediente) has considered the constitutional rule for the growth of the FEES, which, as if it were a university-specific fiscal rule, is contained in Article 85 of the Constitución Política. This constitutional provision states that the FEES, as a financial obligation chargeable to the public treasury, must be \"adjusted each year according to the variation in the purchasing power of the currency,\" which constitutes a specific fiscal growth rule for that fund, and which has been in effect since the constitutional reform of 1981 was approved. The fiscal rule of legal origin invoked in this case file by the Procuraduría General de la República, the Ministerio de Hacienda, and the Contraloría General de la República does not have the effect of nullifying the special rule of constitutional origin that is specific to the FEES. The principle of fiscal equilibrium does not authorize non-compliance with an express precept of the Constitution. Any eventual impossibility that probable revenues might not cover budgeted expenses would not extinguish the state's obligation to transfer the FEES amounts. Such impossibility would\n\norigin, at most, a delay (morosidad) in fulfilling that obligation, not its reduction or extinction. The exceptional occasions when the FEES has had to grow above this constitutional range have been justified by the state universities before the Executive Branch, which has assessed and accepted the increases that the FEES has required “for the good performance of the state university higher education institutions,” as indicated by Article 85 of the Constitution.\n\n**3.- Composition of the university budget and the fiscal rule:** The composition of the university budget is constitutionally associated with the fulfillment and execution of the National Plan for State University Higher Education Development (Plan Nacional de Desarrollo de la Educación Superior Universitaria Estatal, PLANES). This plan must include both operating expenditures (egresos de operación) and investment expenditures (egresos de inversión) deemed necessary for the good performance of the state universities, as stated in Article 85 of the Magna Carta. The definition and proportion between one type of expenditure and the other is part of the exercise of the autonomy of organization and governance (autonomía de organización y gobierno) that the Political Constitution confers on the university authorities in its article\n\n84. If a fiscal rule of legal rank were imposed, this constitutional precept would be infringed, imposing external limits on this capacity for self-definition of needs in order to maintain good performance in the activities that the state universities provide in the exercise of their mission. The foregoing does not mean, nor imply, unjustified or excessive growth. The university budget is limited by the amount that the National Budget allocates as a transfer from the FEES. In this sense, it is clear that the university budget has the constitutional guarantee of budgetary equilibrium: there is no constitutional or legal authorization that permits the state universities to budget public debt, a possibility that does justify the existence of the fiscal rule when dealing with the national budget. Transferring the “fiscal rule” to the composition of the university budget would mean that the Executive Branch (Ministry of Finance) would be the one to define the limit percentage, maximum, of current expenditure (gasto corriente) that can be allocated to meeting the needs of the public universities, nullifying the content of the National Plan for the Development of State University Higher Education (Plan Nacional de Desarrollo de la Educación Superior Universitaria Estatal, PLANES), substituting the exercise of the autonomy of organization and governance\n\nof the university authorities and preventing them from fulfilling their public power-duty (potestad-deber pública) to attend to the needs inherent in the proper performance of the university institutions. **4.- University autonomy (autonomía universitaria) and responsibility in the exercise of public function:** It is intended to allege that defending the constitutional regime of university autonomy would imply authorizing or condoning a regime of impunity (régimen de impunidad), which we reject as unfounded. University autonomy, like any regime of independence, necessarily entails the correlative existence of a direct and absolute system of responsibility and accountability (rendición de cuentas). In the present case, the first austerity measure applied to the university budget has been to maintain, for the year 2020, the same budget as the 2019 fiscal year, without an increase in constant colones, that is, with only the adjustment for the accumulated variation in the purchasing power of the currency. That “rule” for the allocation of the FEES, of constitutional rank, replaces the “fiscal rule” (regla fiscal), of merely legal rank. As evidence of the responsible exercise of the public function and the administration of public resources that are transferred to our institutions, we provide a copy of the\n\nof the university funding agreement for the 2020 period and its annexes, which contain relevant indicators and also demonstrate the austerity that university government authorities have adopted in the administration of their own resources, with knowledge of and in response to the fiscal situation the country is experiencing in general. The savings derived from the application of such measures are estimated at more than forty-seven billion colones. Likewise, a copy of the report on the compliance with performance indicators of the FEES (Fondo Especial para la Educación Superior, FEES) according to PLANES for the year 2017 is provided as evidence of the existence and correct exercise of the regime of responsibility and accountability in the exercise of public function, which implies the constitutional guarantee of university autonomy. The 2018 indicators are in the process of verification to likewise be subject to publication. University performance indicators are public and can be consulted on the web pages of the state universities and of CONARE: https://www.conare.ac.cr/images/articulos/OPES-49-2018.pdf\n\n**5.- Questioning of the existence of the \"university treasury\" (hacienda universitaria):** The separation\n\nof assets constitutionally established in favor of state university higher education institutions is enshrined in the second paragraph of article 84 of the Political Constitution, by stipulating that “the State shall provide them with their own assets (patrimonio propio) and shall collaborate in their financing,” which is reiterated in the first lines of article 85. This university assets (patrimonio universitario) is subject to the political, administrative, and organizational autonomy (autonomía de administración y de organización) that the state universities possess. It is constitutionally subordinated to the fulfillment of the proper mission of these institutions and their development and planning are also subject to the National Plan for State University Higher Education (Plan Nacional de Desarrollo de la Educación Superior Universitaria Estatal), provided for in article 85 of the Constitution. For this reason, it is not only legitimate but constitutionally correct to identify that asset universe (universo patrimonial) as the “university treasury (hacienda universitaria),” whose existence is also guaranteed by the autonomy in economic matters that was expressly constituted by the original framer in favor of the public university. University autonomy (autonomía universitaria) in Costa Rica is not only administrative, but also governmental autonomy (autonomía gubernativa) and organizational autonomy (autonomía organizativa). For this reason, the university treasury (hacienda universitaria) does not belong to a decentralized entity (ente descentralizado)\n\nis not only administratively autonomous, but is the property of an institution that also enjoys political and organizational decentralization. This political and organizational autonomy means that the university treasury (hacienda universitaria) is separate from the public treasury (hacienda pública) and should not be confused with it. We consider that understanding the existence of this constitutionally separate patrimony and its regime for administration, governance, and organization is necessary to comprehend the reason why legal provisions that imply preventing the university government authorities from exercising their full capacity to acquire rights and contract obligations against their own patrimony are, for this same reason, contrary to the constitutional norm. The obligation to return the free surplus (superávit libre) to the national budget (Article 17 of Ley 9635) not only infringes Articles 84 and 85 of the Constitution, but also violates Article 45 of the Magna Carta. The assets that make up the university treasury are the private property of each of the state universities. If, for example, the State needed a strip of university land to expand a road, it must buy it or expropriate it, paying its fair value in advance. Any legal norm that\n\n...impose its free transfer, would clearly be unconstitutional. The obligation established by Article 17 of Law 9635 seriously harms the university treasury (hacienda universitaria) and constitutes a confiscation, clearly unconstitutional. **6.- The FEES and constitutional budgetary principles:** In the various arguments that have been made before this Constitutional Chamber (Sala Constitucional) in the present action, an attempt has been made to apply the same rules of the national budget to the university budget, which is not appropriate. Just as the execution of the university budget is not subject to the National Treasury (Tesorería Nacional), nor to the principle of a single cash fund (principio de caja única), nor is it justified that it should be subject to the legal fiscal rule (regla fiscal), as has been alleged. The Political Constitution contains specific rules and principles for the university regime, whose coexistence with other rules and principles contained therein cannot be interpreted as contrary to the Political Constitution. The rules and principles relating to university assets, their planning, the formulation of their budgets, their financing, the adjustment \"rule\" specific to the FEES, the independence of functions, administration, politics, and organization of state universities, possess a direct constitutional origin. It must be remembered\n\nthat the regime of university autonomy in its dimensions of administrative, policy or governance, organizational, contractual, economic, and patrimonial autonomy was established directly by the original constituent power and remains in force. These different dimensions of university autonomy are inseparable from one another. To disregard any one of them means violating university autonomy. Although no distinction of any kind should be made regarding constitutional norms, the difference between the rules specific to the national budget and the norms applicable to university budgets must be respected and enforced, since, in both cases, they exist and possess constitutional origin.\n\n**7.- University autonomy is not a simple administrative decentralization (descentralización administrativa):** Costa Rican university autonomy is not reduced to a simple administrative decentralization. State universities do not merely possess independence in their functions. Simple autonomous institutions possess this type of autonomy and are subject to the law regarding governance (Article 188 of the Constitution). University autonomy is something very different. Costa Rican state universities hold much more than administrative autonomy or independence of functions: they also have full legal capacity (capacidad jurídica plena) to\n\n... and to organize itself. This involves a \"full\" legal capacity (capacidad jurídica plena), meaning complete, excluding, and exclusive. This full legal capacity is not shared with the Executive Branch or the Legislative Branch. Costa Rican university autonomy (autonomía universitaria) encompasses, among other aspects, the administrative, political or governance, and organizational facets. These last two prevent interference, respectively, from the Government and the Legislative Assembly in the various spheres of university activity and structure. Furthermore, we must emphasize that Costa Rican university autonomy has very unique connotations, which state universities in other countries do not possess, despite their centuries-long existence and great prestige. The peculiar legal nature of universities in Costa Rica prevents the blind application of foreign legal texts, ignoring this singular character. The arguments outlined in this case file (expediente), drawn from works by Spanish authors, are incorrect. The Spanish Constitution “…recognizes the autonomy of the Universities, in the terms that the law establishes” (Article 27.10), that is, it allows the law to set restrictions or conditions. This does not mean that the law can eliminate autonomy. The\n\nauthors and Spanish courts have considered that there exists an “essential core (núcleo esencial)” of university autonomy that excludes the possibility of legal regulations. In Costa Rica, the law cannot restrict nor define the scope of university autonomy. Costa Rican university autonomy is not reduced to a diminished essential core, nor is it circumscribed only to minimum basic and typical features, as - erroneously - has been argued in the present case file (expediente). Public university institutions are legal persons that, in addition to possessing independence in their functions, enjoy full, complete legal capacity to acquire rights and contract obligations, to provide for their own government, and to self-organize. No other Costa Rican public institution possesses an autonomy with similar scope. Public universities cannot be legally regulated as if they lacked this singular autonomy regime, established by the Political Constitution. Conclusion: Public universities have not closed their eyes to the serious economic crisis that the country is undergoing. As expressed before, by their own decision they have adopted measures of spending containment, of austerity, in accordance with the current reality. The\n\ndecisions taken, and those that may be taken in the future, must respect the Rule of Law (Estado de Derecho). The solutions applied to overcome these difficult times are necessary, but they cannot be imposed by trampling legitimate rights, nor by violating express norms of the Political Constitution. This cannot be the remedy to the fiscal crisis. The university authorities would be remiss if they had a passive and irresponsible attitude toward the harmful consequences of the application of the legal norms being denounced as unconstitutional in the present action. Future university students, justly, would claim for such irresponsibilities. Costa Rican citizens, as well. For all of them it would be unforgivable for the university authorities to tolerate, without any reaction, the serious violations derived from the application of norms contrary to the Political Constitution. We respectfully request the Magistrates to declare this action well-founded and to declare unconstitutional, by omission, the articles that have been challenged.”\n\n**12**.- By a writing received in the Chamber on October 16, 2019, Marta Acosta Zúñiga appeared, in her capacity as Comptroller General of the Republic (contralora general de la República). She declares the following: *“Pursuant to the representation on record, in response to the action of unconstitutionality*\n\n...filed by Mr. Henning Jensen Pennington and others against Articles 5, 6, 11, 14, 19, and 26 of Title IV of Law No. 9635 of December 3, 2018 (fiscal rule) expediente No. 19-011540-0007-CO, I hereby outline the main budgetary activities that the law reserves for the last quarter of the year, so that they may be considered by this Court, especially in light of any sizing that may be ordered for this study phase, pursuant to the provisions of Article 91 of the Law of Constitutional Jurisdiction and in addition to the order issued at 8:35 a.m. on July 5, which admitted the action in question. The budget expresses in financial terms the institution's annual plan, through the estimation of revenues and the expenditures necessary to achieve the objectives and goals of the established budget programs (programas presupuestarios). The budget cycle (ciclo presupuestario) encompasses formulation (formulación), approval (aprobación), execution (ejecución), control, and evaluation (evaluación). For the Central Government, the draft ordinary and extraordinary budget bill of the Republic must be submitted by the Executive Branch (Ministry of Finance)\n\n... to the Legislative Assembly for approval no later than September 1st, and the respective law must be definitively approved before November 30th (Articles 121.11 and 178 of the Political Constitution [C Pol]). For their part, as established by Article 184 of the Constitution and Article 18 of the Organic Law of the Contraloría General de la República, the municipalities, autonomous and semi-autonomous institutions, the rest of the decentralized administration, and public enterprises must submit their budget for approval to the Contraloría General de la República no later than September 30th; the final decision (approve or reject, totally or partially), which by provision of Article 34 of Law 7428 is deemed firm from the moment it is issued, must be made before the following economic year, that is, before December 31st. In these cases, the Contraloría General must consider the certification that the Technical Secretariat of the Budgetary Authority will issue regarding compliance or non-compliance with the fiscal rule (Article 19 LFFP). The budget runs from January 1st to December 31st, according to the principle of annuality (Articles 176 and 178 of the Political Constitution; Article 5 ff. of the Organic Law of the Contraloría General de la República; Article 13 of Law 8131; and Article 1 of Law 6955) and is published in La Gaceta no later than December 31st. Of course, the budget constitutes only an estimate of probable income and a limit on expenditures within the period, which may be modified by extraordinary budgets. And if by December 31st the ordinary budget has not been definitively approved, the previous year's budget continues in effect (Articles 176 and 178 of the Political Constitution, in relation to Article 51 of the General Public Administration Law and Article 48 of the Organic Law of the Contraloría General de la República).\n\nThe preceding paragraphs illustrate the normal or ordinary budget cycle, where a series of subjects, stages, and monitoring mechanisms of constitutional and legal origin converge. From them, one can directly infer principles of great importance: the principle of legality, annuality, and also specificity or quantitative limit (Article I.4 TCA), universality, and unity. However, the budget cycle is susceptible to special variations caused by specific normative bodies, such as those relating to transfers and uses of funds from the collection of the single fuel tax (Articles 5 and 15 of Law 8114), or the National Emergency Fund, which is outside the principle of annuality and any spending limitation (Article 44 of Law 8488).\n\nof the Political Constitution and Article 5 of the Financial Administration of the Republic and Public Budgets Law). For the 2020 budget period, the fiscal rule established in Title IV of the Public Finance Strengthening Law sets, in the budget formulation phase, a cap on the growth of current expenditure within the budget of non-financial public sector institutions, taking as a reference the current expenditure included in the approved budget of the previous year (2019) for this type of expenditure. The increase in the current expenditures of the initial budget may only be 4.67%. The limit on the growth of budgeted current expenditure imposed by the fiscal rule during the budget formulation and approval phases aims to stabilize the growth of debt, in addition to minimizing the probabilities of future expenditure expansions that are not sustainable over time and that impact the quality of life of individuals and affect the future provision of public services. By reason of the foregoing, to report that in order to comply with what was ordered by the Constitutional Chamber within the framework of the cited action\n\nof unconstitutionality for the next budget approval for the year 2020, the Office of the Comptroller General of the Republic (Contraloría General de la República) shall proceed with the respective proceeding in accordance with the provisions of Article 82 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional) and the other applicable technical regulations except for the composition of the Constitutional Court (Tribunal Constitucional).”\n\n**13.-** By document received in the Chamber on November 21, 2019, Noel Cruz Muñoz, Andrea Chacón Chacón and Carlos Boschini Castillo appear, on their own behalf as president of the National University Student Federation (Federación de Estudiantes de la Universidad Nacional), president of the University of Costa Rica Student Federation (Federación de Estudiantes de la Universidad de Costa Rica) and president of the Student Federation of the Costa Rica Institute of Technology (Federación de Estudiantes del Instituto Tecnológico de Costa Rica). They state the following: *“The student federations of the public universities, the National University Student Federation (Federación de Estudiantes de la Universidad Nacional, FEUNA), the Student Federation of the Costa Rica Institute of Technology (Federación de Estudiantes del Instituto Tecnológico de Costa Rica, FEITEC) and the University of Costa Rica Student Federation (Federación de Estudiantes de la Universidad de Costa Rica, FEUCR), reaffirm our commitment to Costa Rican society, which is why we have requested that the constitutional budget that must be allocated to public universities be guaranteed. Given this concern, within the framework of the negotiation of the Special Fund for Higher Education (Fondo Especial para la Educación Superior, FEES) carried out by the commission of the*\n\n... of transition, marked by a turbulent social and political context, we have raised, before different national and university authorities, our main concerns, demands, and proposals. These positions correspond to a defense of the higher education budget within a framework of full respect for the constitutional norm, that yes, without neglecting to mention the aspects of improvement that we find in our higher education centers. In light of these concerns, from the student federations of the public universities, we respectfully request the prompt resolution of the action of unconstitutionality processed under case file 19-000990-0007-CO, filed by the rectors Henning Jensen Pennington in his capacity as rector of the Universidad de Costa Rica, Alberto Luis Salom Echeverría in his capacity as rector of the Universidad Nacional, Julio César Calvo Alvarado in his capacity as rector of the Instituto Tecnológico de Costa Rica, Rodrigo Arias Camacho in his capacity as rector of the Universidad Estatal a Distancia, and Marcelo Prieto Jiménez in his capacity as rector of the Universidad Técnica Nacional, regarding the reduction of the Fondo Especial para el Financiamiento de la Educación Superior, this due to the cut approved by the Asamblea Legislativa in the amount of\n\n...of ten billion colones to the budget of public universities for the year 2019. Furthermore, we request the resolution of the unconstitutionality action (acción de inconstitucionalidad) filed under case file 19-011540-0007-CO, also brought by the aforementioned plaintiffs, which refers to Ley 9635 Ley de Fortalecimiento de las Finanzas Públicas. As a group of federations of public universities, we consider that the resolution of the previously mentioned unconstitutionality actions should be of priority cognizance for this Chamber. This is because the impacts that may arise from the application of the aforementioned provisions could directly affect the public interest. The existence of an official criterion from the Constitutional Chamber (Sala Constitucional) regarding this cut of ten billion colones and with respect to the application of the Ley de Fortalecimiento de las Finanzas Públicas is fundamental for the projection and planning of our public universities. Within the framework of the discussion and future approval of the national budget for the year 2020, a resolution regarding the matters raised above will be able to prevent future unconstitutional practices that affect the reality of...\n\n14.- By a document incorporated into the digital case file on January 24, 2020, Ana María Hernández Segura appears, in her capacity as acting rector of the Universidad Nacional. She states the following: \"By resolution at 08:35 hours on July 5, 2019, the Constitutional Chamber (Sala Constitucional) granted leave for the action filed against Articles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. 9635 of December 3, 2018, the Public Finance Strengthening Law (Ley de Fortalecimiento de las Finanzas Públicas), ordering: 'Legal effects of the filing of the action: The terms of Articles 81 and 82 of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional) are recalled, which provide the following: \"Article 81. If the President considers that the requirements referred to have been met, he shall grant an audience to the Attorney General's Office (Procuraduría General de la República) and to the counterparty appearing in the main matter, for a period of fifteen days, so that they may state what they deem appropriate. At the same time, he shall order a note be sent to the court or body hearing the matter, so that it does not issue the final resolution before the Chamber has ruled on the action, and shall order the publication\n\n...a notice (aviso) in the Judicial Bulletin (Boletín Judicial), for three consecutive times, informing the courts and the bodies that exhaust the administrative route (órganos que agotan la vía administrativa) that this lawsuit has been filed, so that in the processes or procedures in which the application of the law, decree, provision, agreement or resolution is discussed, no final resolution shall be issued either while the Chamber (Sala) has not made its pronouncement on the case. If the action is filed by the Attorney General of the Republic (Procurador General de la República), the hearing shall be granted to the person who appears as the opposing party in the main matter.\", \"Article 82. In proceedings in progress, no stage other than that of issuing the final resolution shall be suspended, unless the action of unconstitutionality (acción de inconstitucionalidad) refers to norms that must be applied during the proceedings.\" In the present case, the norms that are the subject of the action refer to the formulation of the institutional budgets that must be submitted for approval by the Comptroller General of the Republic (Contraloría General de la República). In accordance with the provisions of articles 33 and 34 of the Organic Law of the Comptroller General (Ley Orgánica de la Contraloría), No. 7428 of September 7, 1994, the challenge of the decisions\n\ntome said controlling body (sic) is regulated as follows: \"Article 33.- Challenge of acts. The definitive acts issued by the Contraloría General de la República shall be subject to the common regime for the challenge of administrative acts, contained in the Ley General de la Administración Pública and in the Ley Reguladora de la Jurisdicción Contencioso Administrativa, when it is considered that they injure subjective rights or legitimate interests or prevent their creation. Article 34.- Acts not appealable administratively. The following acts of the Contraloría General de la República are excepted from the rule contemplated in the previous article and, from the moment they are issued, shall become final: (...) c) Acts related to budgetary matters.\"\n\nAs noted, budgetary matters constitute an act that is not appealable by legal provision, meaning any decision by the Contraloría that concludes a proceeding necessarily becomes a final act, with which there would be no way whatsoever to issue a resolution in this matter that puts an end to a proceeding without simultaneously incurring a violation of the provisions of Article 81, second paragraph, of the Ley de la Jurisdicción Constitucional, No. 7135 of October 11, 1989.\n\nNevertheless, by means of official communication number DFOE-SOC-1366-19, a copy of which is enclosed, the Contraloría General de la República disregards the order issued by this Constitutional Court, unilaterally ordering the filing without processing (archivo sin trámite) of the budgets of the Universidad Nacional for the 2020 fiscal year. Furthermore, in said communication it points out that “budget execution is the exclusive responsibility of the head of the institution (jerarca) and subordinate officeholders, which must be carried out in strict adherence to legal and technical provisions, among which is the Law for the Strengthening of Public Finances, No. 9635.” The foregoing is extremely serious, since the cited communication possesses no recourse whatsoever, as has been indicated, having the same legal effects as a final administrative decision (resolución final en sede administrativa) regarding the approval, rejection, or filing without processing (as occurred in this case) of the claimants’ budget for the 2020 fiscal year. The budget approval process under the responsibility of the Contraloría General de la República should have been carried out without considering the application of the norms challenged according to what was indicated in the resolution of 08:35 on July 5, 2019, that is, without a cap on the current expenditure of the state universities.\n\ny and without subsequent effect on the surplus, as indicated by the Comptroller General's Office itself through a document filed on July 30, 2019, in the present case file (expediente), namely: **“REQUEST FOR PROMPT RESOLUTION TO AVOID FURTHER DETRIMENT TO THE FISCAL SITUATION AND THE PUBLIC TREASURY** In view of the suspensive effects on the application of the challenged legislation —solely and exclusively— with respect to the plaintiffs (state universities), as a consequence of the admission and processing of this unconstitutionality action (acción de inconstitucionalidad), in accordance with the provisions of the resolution of 08:35 hours on July 5, 2019, this Comptroller Office deems it pertinent —respectfully— to request this Honorable Constitutional Court for the prompt attention and resolution of this process, since its delay could entail extremely adverse effects for the financial situation of the State, causing significant harm to the Public Treasury. **As set forth in the initial sections of our submission, the direct consequence of this action** in the budget approval process under the responsibility of the Comptroller General's Office —with respect to the plaintiffs— would lead to carrying out the review\n\nof the budget without considering the application of the challenged rules, that is, among others, without a cap on the current expenditure of the state universities and without subsequent effect on the surplus. It is for this reason that a special consideration is requested regarding the compelling reasons that—in the opinion of this Office of the Comptroller General (Contraloría General)—warrant the greatest possible speed that can be granted to the resolution of this action of unconstitutionality (acción de inconstitucionalidad); in strict adherence to the legal system and the exercise of the jurisdictional powers that this Honorable Constitutional Chamber (Sala Constitucional) is charged with.” Therefore, on behalf of my client, I request that this Chamber order the Office of the Comptroller General (Contraloría General) to render void the referenced official letters (oficios), so that in their place the said oversight body proceeds to carry out the review of the budget submitted by our institution without considering, for that purpose, the application of the challenged rules, just as the Contraloría General itself acknowledged in the written submission of July 30, 2019, already indicated.”\n\n**15.-** By written submission received at the Chamber on January 30, 2020, Luis Paulino Méndez Badilla appears before this body, in his capacity as rector of the Technological Institute of Costa Rica (Instituto Tecnológico de Costa Rica). He states the following:\n\nPursuant to Article 73, subsection b) of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional): \"ARTICLE 73.- The action of unconstitutionality (acción de inconstitucionalidad) shall be appropriate: (...) b) Against subjective acts of public authorities, when they infringe, by action or omission, any constitutional norm or principle, if they are not susceptible to the remedies of habeas corpus (hábeas corpus) or amparo (amparo). (...)\" Likewise, Article 75 of the same legal body cited above, indicates: \"ARTICLE 75.- To file the action of unconstitutionality (acción de inconstitucionalidad) it is necessary that there be a matter pending resolution before the courts, including of habeas corpus (hábeas corpus) or of amparo (amparo), or in the proceeding to exhaust the administrative channel, in which that unconstitutionality is invoked as a reasonable means of protecting the right or interest that is considered injured. The prior pending case will not be necessary when, due to the nature of the matter, there is no individual and direct injury, or it concerns the defense of diffuse interests, or those that pertain to the community as a whole. Nor will it be required for the Comptroller General of the Republic, the Attorney General of the Republic, the Prosecutor General of the Republic, and the Defender of the Inhabitants. In\n\nin the cases of the two preceding paragraphs, once the action has been filed, the procedures set forth in the following articles shall be followed, to the extent they are compatible.\" In accordance with the legal provisions cited, our standing is based on the resolution issued at 08:35 hours on July 5, 2019, by the Constitutional Chamber (Sala Constitucional), which granted leave to proceed with the unconstitutionality action filed against Articles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. 9635 of December 3, 2018, Law for the Strengthening of Public Finances (Ley de Fortalecimiento de las Finanzas Públicas), processed under case file: 2019-011540-0007 -CO, stipulating: \"Legal effects of filing the action: The terms of Articles 81 and 82 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), which provide the following, are recalled: 'Article 81. If the Presiding Judge deems the requirements referred to are met, he shall grant a hearing to the Office of the Attorney General of the Republic (Procuraduría General de la República) and to the counterparty appearing in the principal matter, for a period of fifteen days, so that they may state what they deem appropriate. At the same\n\ntime will send a note to the court or body hearing the matter, so that it does not issue the final ruling before the Chamber has ruled on the action, and shall order that a notice be published in the Judicial Bulletin (Boletín Judicial), for three consecutive times, informing the courts and bodies that exhaust the administrative route that this lawsuit has been filed, so that in the proceedings or procedures in which the application of the law, decree, provision, agreement, or resolution is discussed, a final ruling is also not issued while the Chamber has not issued its ruling on the case. If the action was filed by the Attorney General of the Republic (Procurador General de la República), the hearing shall be given to the person appearing as the opposing party in the principal matter.”\n\n\"Article 82. In proceedings in progress, no stage shall be suspended other than that of issuing the ruling\n\nthe final resolution, unless the unconstitutionality action refers to norms that must be applied during the proceeding.” (The bold and underlining do not belong to the original) NORMS THAT ARE THE SUBJECT OF THIS ACTION FOR OMISSION. They refer to the formulation of the institutional budgets that must be submitted for approval by the Contraloría General de la República. In accordance with the provisions of articles 33 and 34 of the Ley Orgánica de la Contraloría, No. 7428 of September 7, 1994, the challenge of the decisions made by said audit body is regulated as follows: “Article 33.- Challenge of acts. The final acts issued by the Contraloría General de la República shall be subject to the common regime for challenging administrative acts, contained in the Ley General de la Administración Pública and in the Ley Reguladora de la Jurisdicción Contencioso Administrativa, when it is considered that they injure subjective rights or legitimate interests or prevent their creation. Article 34.- Acts not appealable administratively. Excepted from the rule contemplated in the preceding article and from the moment\n\nare issued, the following acts of the Contraloría General de la República shall become final: (...) c) Acts related to budgetary matters.\" Pursuant to Article 34, subsection c) of the Ley Orgánica de la Contraloría General, the administrative acts in budgetary matters issued by the controlling entity are not appealable by legal provision, meaning any decision by the Contraloría that concludes a proceeding in budgetary matters necessarily becomes a final act. However, through official letter number DFOE-SOC-1369-19, a copy of which is attached, the Contraloría General de la República disregards the order issued by this Constitutional Court in the aforementioned resolution, unilaterally ordering the dismissal without proceeding of the budget of the Instituto Tecnológico de Costa Rica, for the 2020 fiscal year. Furthermore, in said official letter it states that \"budget execution is the exclusive responsibility of the senior official (jerarca) and subordinate heads, which must be carried out in strict adherence to legal and technical provisions, among which is the Ley Fortalecimiento de las Finanzas Públicas, No. 9635.\" GRIEVANCE. The foregoing is extremely serious, because official letter DFOE-SOC-1369-19,\n\ndoes not have any recourse, as has been indicated, having the same legal effects as a final resolution in the administrative venue regarding the approval, disapproval, or dismissal without processing (as occurred in the present case) of the plaintiff's budget for the 2020 fiscal year. The budget approval process under the responsibility of the Contraloría General de la República should have been carried out without considering the application of the questioned norms, as indicated in the resolution of 08:35 hours on July 5, 2019, that is, without a cap on current spending for state universities and without subsequent effect on the surplus, as the Contraloría General itself indicated through a brief submitted on July 30, 2019, in the present expediente, namely: \"REQUEST FOR PROMPT RESOLUTION TO AVOID FURTHER AFFECTATION TO THE FISCAL SITUATION AND THE PUBLIC TREASURY In view of the suspensive effects on the application of the questioned regulations -solely and exclusively- with respect to the plaintiffs (state universities), as a consequence of the admission and processing of this action of unconstitutionality, in accordance with the provisions\n\nat 08:35 hours on July 5, 2019, this Oversight Body deems it pertinent—respectfully—to request of this Honorable Constitutional Court the prompt attention and resolution of the present proceeding, since its delay could entail extremely adverse effects for the financial situation of the State, causing significant harm to the Public Treasury. As set forth in the initial sections of our submission, the direct consequence of this action in the budget approval process under the purview of the Office of the Comptroller General—with respect to the plaintiffs—would lead to the review of the budget without considering the application of the challenged norms, that is, among others, without a cap on the current expenditure of the state universities and without subsequent effect on the surplus. It is for this reason that special consideration is requested regarding the compelling grounds that—in the opinion of this Office of the Comptroller General—warrant the greatest possible speed that can be granted to the resolution of this unconstitutionality action; in strict adherence to the legal system and the exercise of the jurisdictional powers vested in that Honorable Constitutional Chamber.”\n\nThe action of the Office of the Comptroller General of the Republic (Contraloría General de la República) becomes unconstitutional by omitting the order issued by the high constitutional court, in the resolution of 08 hours 35 minutes of July 5, 2019, processed under case file: 2019-011540-0007-CO, given that, in said resolution, the court or body hearing the matter was ordered not to issue the final resolution before the Chamber had ruled on the action. By the comptroller entity decreeing in official communication DFOE-SOC-1369-19 the dismissal without processing (archivo sin trámite) of the budget of the Costa Rica Institute of Technology (Instituto Tecnológico de Costa Rica, TEC) for the 2020 fiscal year (ejercicio económico), it grossly omitted and disobeyed the legal mandate contained in article 81 of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional), since, by dismissing without processing the ordinary budget submitted by TEC for the 2020 fiscal year, it issued a final act, which is unappealable (irrecurrible) administratively, as article 34, subsection c) of Law No. 7428 forcefully establishes that the administrative acts issued by the Office of the Comptroller General of the Republic in budgetary matters are unappealable. Said action leaves it in a clear state of defenselessness (indefensión)\n\nto the Instituto Tecnológico de Costa Rica, since the controlling body should have complied with the provisions in the aforementioned resolution of the Sala Constitucional, that is, the Contraloría General de la República should have refrained from issuing a final act when it analyzed the institution's budget for the 2020 fiscal year. Finally, it is desired to warn the honorable magistrates of the Sala Constitucional of the terrible contradiction into which the Contraloría General de la República fell, because the controlling body, aware of the legal effects of the resolution that gave course to the unconstitutionality action processed under expediente: 2019-011540-0007-CO, urged the Sala Constitucional, through a brief filed on July 30, 2019, for the prompt resolution of the unconstitutionality action with the purpose of avoiding greater harm to the fiscal situation and public treasury; nonetheless, it proceeded to issue a final act in budgetary matters by decreeing the dismissal without processing (archivo sin trámite) of the budget submitted by TEC for the 2020 fiscal year. With the issuance of the final act by decreeing the dismissal without processing of the TEC budget, in application\n\nof Article 34, subsection c) of the Organic Law of the Contraloría General de la República, the due process amply recognized in the jurisprudence of the Sala Constitucional was violated, suffice it to mention only the paradigmatic Resolution No. 01739 1992. The legal effects of the action deployed by the comptroller entity, apart from being harmful to our interest, are dangerous, because it advances results and legal effects to a matter that is still pending resolution before the Sala Constitucional, thereby removing efficacy and validity from the content of the legal mandate of Article 81 of the Law of the Jurisdicción Constitucional. (...) PETITION. By reason of the constitutional, legal and jurisprudential basis, I request on behalf of my client that this Sala order the Contraloría General to set aside the official communication DFOESOC-1369-19, issued by the comptroller organ and, in its place, proceed to review the budget presented by our institution, without considering for that purpose the application of the questioned norms, as the Contraloría itself acknowledged in the brief filed on July 30, 2019 already indicated.”\n\n16.- By brief received in the Sala on the\n\nFebruary 5, 2020, Fernando García Santamaría, Luis Paulino Méndez Badilla, Alberto Luis Salom Echeverría, Rodrigo Arias Camacho, and Luis Fernando Chaves Gómez appear, in their capacity as rectors, in the respective order, of the University of Costa Rica, Costa Rica Institute of Technology, National University, State Distance University, and National Technical University.\n\nThey sustain the following: \"By resolution of 08:35 hours on 5 July 2019, the Constitutional Chamber (Sala Constitucional) gave course to the action filed against articles 5, 6, 11, 14, 17, 19 and 26 of Title IV of Law No. 9635 of 3 December 2018, Law to Strengthen Public Finances (Ley de Fortalecimiento de las Finanzas Públicas), ordering: 'Legal effects of the filing of the action: The terms of articles 81 and 82 of the Constitutional Jurisdiction (Jurisdicción Constitucional) law are recalled, which provide the following: \"Article 81. If the President considers the requirements that have been made to be fulfilled, he shall grant a hearing to the Attorney General's Office of the Republic (Procuraduría General de la República) and to the counterparty appearing in the principal matter, for a period of fifteen days so that they may state what they deem appropriate. At the same time, he shall order a note be sent to the court or body hearing the matter, so that it does not issue the final resolution before the Chamber (Sala) has ruled on the action, and he shall order an announcement be published in the Judicial Bulletin (Boletín Judicial), three consecutive times, making known to the courts and bodies\n\nthat exhaust the administrative channel established for that claim, so that in the processes or procedures in which the application of the law, decree, provision, agreement, or resolution is discussed, no final resolution shall be issued either while the Chamber has not made its pronouncement on the case. If the action is brought by the Attorney General (Procurador General de la República), the hearing shall be given to the party appearing as the opposing party in the main matter.”, \"Article 82. In pending proceedings, no stage other than that of issuing the final resolution shall be suspended, unless the unconstitutionality action (acción de inconstitucionalidad) refers to norms that must be applied during the proceedings.” In the present case, the norms that are the subject of the action determine the formulation of the institutional budgets that must be submitted for approval by the Comptroller General of the Republic (Contraloría General de la República). In accordance with the provisions of Articles 33 and 34 of the Organic Law of the Comptroller General, No. 7428 of September 7, 1994, which state: “Article 33.- Challenge\n\nthe acts. The final acts issued by the Office of the Comptroller General of the Republic shall be subject to the ordinary regime for challenging administrative acts, contained in the General Law of Public Administration and in the Law Regulating the Contentious-Administrative Jurisdiction, when it is considered that they injure subjective rights or legitimate interests or that they prevent their emergence. Article 34.- Acts not subject to administrative appeal. The following acts of the Office of the Comptroller General of the Republic are excepted from the rule set forth in the preceding article and, from the time they are issued, shall become final: (...) c) Acts related to budgetary matters.” Since a budgetary matter is an act not subject to appeal by legal provision, we are necessarily in the presence of a final act, and there would therefore be no way to issue a resolution on this matter without simultaneously violating the provisions of the second paragraph of Article 81 of the Law of Constitutional Jurisdiction, No. 7135 of October 11, 1989. However, by means of official letters numbers DFOE-SOC-1366-19, DFOESOC-1367-19, DFOE. SOC-1368-19, DEOE-SOC-1369-19, DFOE.SOC.1370-19 and DFOt-SOC-1371-19, copies of which are attached, the Office of the Comptroller\n\nof the Contraloría General de la República disregards the order issued by this Constitutional Court, unilaterally ordering the dismissal without processing (archivo sin trámite) of the budget requests of our institutions for the 2020 fiscal year. Moreover, in said official communications, it indicates that \"the budget execution is the exclusive responsibility of the [Contralor] and the subordinate heads, which must be carried out in strict adherence to legal and technical provisions, among which is the Ley Fortalecimiento de las Finanzas Públicas, N.º 9635.\" The foregoing is extremely serious, because the cited official communication has no recourse whatsoever, as has been indicated, having the same legal effects as a final resolution in the administrative venue regarding the approval, rejection, or dismissal without processing (as occurred in the present case) of the budget of the claimants for the 2020 fiscal year. The budget approval process by the Contraloría General de la República should have been carried out without considering the application of the challenged rules, as indicated in the resolution of 08:35 hours of 5 July 2019, that is, without a limit (tope) on the current expenditure of the state universities.\n\nand without subsequent effect on the surplus (superávit), as indicated by the Comptroller General's Office (Contraloría General) on page 57 of its submission filed on July 30, 2019, in the present case file, in which it expressly states: “REQUEST FOR PROMPT RESOLUTION TO AVOID FURTHER AFFECTATION OF THE FISCAL SITUATION AND THE PUBLIC TREASURY. In view of the suspensive effects on the application of the challenged regulations —solely and exclusively— with respect to the plaintiffs (state universities). As a consequence of the admission and processing of this acción de inconstitucionalidad (constitutional challenge), pursuant to the provisions of the resolution at 08:35 hours on July 5, 2019, this Oversight Body deems it pertinent —respectfully— to request this Honorable Constitutional Court (Honorable Tribunal Constitucional) for the prompt attention and resolution of this proceeding, since its delay could bring about highly adverse effects on the financial situation of the State, causing significant harm to the Public Treasury. As set forth in the initial sections of our submission, the direct consequence of this action in the budget approval process (trámite de aprobación presupuestaria) under the responsibility of the Comptroller General's Office —regardin\n\nthe plaintiffs—would lead to conducting the review of the budget without considering the application of the challenged norms, that is, among others, without a ceiling on current spending by the state universities and without subsequent effect on the surplus. It is for this reason that special consideration is requested regarding the compelling reasons that—in the opinion of this Office of the Comptroller General (Contraloría General)—merit the greatest possible speed that can be granted to the resolution of this action of unconstitutionality; with strict adherence to the legal system and the exercise of the jurisdictional powers proper to that Honorable Constitutional Chamber (Sala Constitucional).’ For the foregoing, we request that this Chamber order the Office of the Comptroller General to set aside the indicated official letters, so that instead that comptroller body may proceed to review the budgets submitted by our institutions without considering for that purpose the application of the challenged norms, just as the Office of the Comptroller itself acknowledged in the writing submitted on July 30, 2019, already indicated.”\n\n**17.-** By a writing incorporated into the digital case file on September 14, 2022, substitute magistrate Garita Navarro filed a motion for recusal (inhibitoria).\n\n18.- By resolution issued at 3:16 p.m. on September 14, 2022, the Presidency of the Chamber rejected the petition filed by substitute magistrate Garita Navarro and declared him qualified to hear the sub lite.\n\n19.- The hearing provided for in articles 10 and 85 of the Ley de la Jurisdicción Constitucional is dispensed with, based on the power granted to this Chamber by numeral 9 eiusdem, as this resolution is deemed sufficiently grounded in evident principles and norms, as well as in the jurisprudence of this Court.\n\n20.- The prescriptions of law have been complied with in the proceedings.\n\nDrafted by magistrate Castillo Víquez; and,\n\nConsidering:\n\nI.- Preliminarily. Magistrate Garro Vargas noted that, in view of the ruling by the Presidency of the Constitutional Chamber on the motion for recusal (inhibitoria) filed by magistrate Garita Navarro, she deems it unnecessary, for reasons of procedural economy (economía procesal), to file a motion for recusal on similar grounds ‑-being a professor at the University of Costa Rica--.\n\nII.- Regarding the joinder (coadyuvancia) filed by the president of the Asociación Cámara de Industrias de Costa Rica and the briefs submitted by the presidents of the student federations of the state universities.\n\nArticle 83 of the Ley de la Jurisdicción Constitucional establishes that within 15 days following the first publication of the edict contemplated in the second paragraph of ordinal 81 eiusdem, the parties appearing in the matters pending as of the date of the filing of the action or those with a legitimate interest may appear in order to join (coadyuvar) in the allegations that may justify its appropriateness or inappropriateness, or to expand, as applicable, the grounds of unconstitutionality in relation to the matter of interest to them.\n\nIn this case, by resolution issued at 1:50 p.m. on August 13, 2019, the Presidency of the Chamber accepted the joinder (coadyuvancia) of Enrique Egloff Gerli, in his capacity as president of the Asociación Cámara de Industrias de Costa Rica, and he is therefore considered a party to this proceeding.\n\nSubsequently, in a brief received on November 21, 2019, the presidents of the student federations of the state universities appeared in the proceeding.\n\nNonetheless, they did this outside the deadline set forth in the previously mentioned numeral 83, since the first publication occurred on July 18, 2019, and they did not provide such document until November 21, 2019.\n\nTherefore, for procedural reasons, it is improper to consider those organizations as parties in the sub lite.\n\nIII.- On the admissibility of the action. The action of unconstitutionality requires specific formalities, which must be satisfied so that the Chamber may validly hear the merits of a challenge in such procedural avenue.\n\nPrecisely, Article 75 of the Constitutional Jurisdiction Law regulates the requirements for admissibility of the unconstitutionality action. In the first place, it requires a prior matter pending resolution, whether in judicial or administrative proceedings (in the procedure to exhaust it), in which unconstitutionality has been invoked as a reasonable means to protect the right or interest considered harmed. The second and third paragraphs of that rule contemplate scenarios where, exceptionally, the prior matter is not required, such as the non-existence of an individual and direct injury due to the nature of the matter, defense of diffuse or collective interests, or when the action is filed directly by the Comptroller General of the Republic, the Attorney General of the Republic, the Prosecutor General of the Republic, or the Ombudsman.\n\nIn this regard, the claimants explicitly allude that their standing derives directly from the 2nd paragraph of Article 75 of the Constitutional Jurisdiction Law, since there is no individual and direct injury. They maintain that the proceeding is brought in defense of diffuse interests that concern the community as a whole, and therefore it is not possible to obtain scenarios of singular application. They argue that, in budgetary matters, there are no appealable acts, which makes it impossible to challenge and eventually form a prior administrative file, in which the unconstitutionality could be alleged.\n\nr the unconstitutionality. They note that the defense of diffuse interests (intereses difusos) is related to the financing of the fundamental right to state university higher education and the control over the management of public funds.\n\nBased on the foregoing, the Presidency of the Chamber, in the resolution of 8:35 a.m. on July 5, 2019, admitted this action, ordering: “The standing (legitimación) of the plaintiffs derives from Article 75, paragraph 2, of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), insofar as they appear in defense of diffuse interests (intereses difusos) to safeguard the public funds that must be allocated to the financing of state higher education and to the fundamental right to education.” This reasoning is shared by the full bench of this Tribunal, since the arguments mentioned relate to the right to education and the public funds assigned to state universities, which constitutional jurisprudence has qualified as adequate to support standing via the protection of diffuse interests (tutela a intereses difusos) (for example, see judgment no. 2019008620 of 9:20 a.m. on May 15, 2019). Ergo, it is confirmed that the action is admissible.\n\n**IV.- Regarding the plaintiffs' briefs concerning the alleged non-compliance with the resolution of 8:35 a.m. on July 5, 2019, by the Office of the Comptroller General of the Republic (Contraloría General de la República).**\n\nFirst, the Presidency of the Chamber, through the resolution\n\nat 8:35 a.m. on 5 July 2019, it granted leave to proceed with the unconstitutionality action filed by the claimants against subsections 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. 9635 of 3 December 2018, entitled ‘Ley de Fortalecimiento de las Finanzas Públicas’; furthermore, it ordered: “This action is admitted for meeting the requirements referred to in the Ley de la Jurisdicción Constitucional in its articles 73 to 79. The standing (legitimación) of the claimants stems from Article 75, paragraph 2°, of the Ley de la Jurisdicción Constitucional, insofar as they appear in defense of diffuse interests in safeguarding of the public funds that must be allocated to the financing of state higher education and to the fundamental right to education. Publish an advisory three consecutive times in the Boletín Judicial regarding the filing of the action. Legal effects of the filing of the action: The terms of Articles 81 and 82 of the Ley de la Jurisdicción Constitucional are recalled, which provide as follows: ‘Article 81. If the President considers the requirements set forth are met, he shall grant a hearing to the Procuraduría General de la República and to the counterparty appearing in the principal matter, for a period of fifteen days,\n\nso that they may state whatever they deem appropriate. At the same time, it shall order a note to be sent to the court or body hearing the matter, so that it does not issue the final ruling before the Chamber has pronounced on the action, and it shall order a notice to be published in the Boletín Judicial, three consecutive times, informing the courts and the bodies that exhaust the administrative route that this action has been filed, so that in the proceedings or procedures in which the application of the law, decree, provision, agreement, or resolution is discussed, a final ruling is also not issued while the Chamber has not made its pronouncement on the case. If the action is filed by the Procurador General de la República, the hearing shall be granted to the person appearing as the opposing party in the main matter.\", \"Article 82. In proceedings in progress, no stage other than that of issuing the final ruling shall be suspended, unless the acción de inconstitucionalidad (constitutional challenge action) refers to rules that must be applied during the processing.\" Within the fifteen days following the first publication of the aforementioned notice, those appearing as parties in the\n\npending matters as of the date this action was filed, in which the application of the challenged provision is being discussed or in those with a legitimate interest, in order to assist regarding its appropriateness or inappropriateness, or to expand, as applicable, the grounds of unconstitutionality in relation to the matter of interest to them. It is also made known, furthermore, that in accordance with articles 81 and 82 of the Constitutional Jurisdiction Law and as the Chamber has repeatedly resolved (resolutions 0536-91, 0537-91, 0554-91 and 0881-91), this publication does not suspend the validity of the norm in general, but only its application in the cases and conditions indicated.\"\n\nIn addition, the plaintiffs based their standing on paragraph 2 of subsection 75 of the Constitutional Jurisdiction Law and, as developed supra, the action is admitted based on that normative provision.\n\nNow, in briefs subsequent to the filing of this proceeding, a claim is made that the Contraloría General de la República ordered the archiving of the processing of the ordinary budgets 2020 of the universities and ordered compliance with the Public Finance Strengthening Law, even though the challenged norms were suspended.\n\nOn the matter, in vote no.\n\n1991000537 of the 16:15 hours of 12 of March of 1991 this Court held:“As the Chamber already resolved in vote 536-91 of the 16:00 hrs of today, referring to the scope of Article 81 of the Ley de la Jurisdicción Constitucional, .”.. the publication ordered by that article regarding the filing of the unconstitutionality action (acción de inconstitucionalidad), suspends only the acts of application of the challenged norm by the judicial authorities in the proceedings, or by the administrative ones in the procedures aimed at exhausting the administrative route, but not its validity and general application, whether to the benefit or detriment of the individual as appropriate .” As a consequence of the foregoing, persons who, invoking Article 75, second paragraph of that Law, come to file the unconstitutionality action directly, by definition lack a judicial proceeding or administrative procedure in which the application can be suspended\n\nIn accordance with this precedent, in the *sub iudice*, the plaintiffs lack prior processes or proceedings on the basis of which it would be appropriate to suspend the application of the challenged norms.\n\n**V.- Purpose of the action.** The plaintiffs allege unconstitutionality by omission with respect to Article 85 of the Political Constitution and because the FEES was not exempted from the application of Articles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. 9635 of December 3, 2018, called ‘Ley de Fortalecimiento de las Finanzas Públicas’, insofar as it has a constitutional origin and is subject to a determination regime in the Constitution itself, which ordinary law can neither abolish nor repeal. They also claim unconstitutionality by omission with reference to Articles 84 and 85 of our Magna Carta, because the state universities were not excluded from compliance with Articles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. 9635, despite the fact that they enjoy full legal capacity to acquire rights and contract obligations, as well as to establish their own organization and government, which empowers them to do the following: 1) definition and approval of the Plan Nacional de Desarrollo para la Educación Superior Universitaria Estatal with a five-year term; 2) formulation and approval of their institutional budgets to implement that plan without intervention from the Executive Branch or its government offices. In addition to the foregoing, they request: “*To dimension the effects of the judgment that upholds this action, warning the Executive Branch, through the Ministerio de Hacienda, the Autoridad Presupuestaria, and the Contraloría General de la República, to consider the FEES and the state universities as exempted from compliance with the*\n\n...the fiscal rule (regla fiscal) provided in Title IV of Law No. 9635 to the formulation, approval, liquidation, evaluation, and monitoring of university budgets. (...) To order both the Ministry of Finance, the Budgetary Authority, and the Comptroller General of the Republic to refrain from actions or omissions that directly or indirectly apply the fiscal rule to the university budgets and treasury, nor to the constitutionally corresponding annual amount of the FEES.\"\n\n**VI.- Regarding the challenged regulations.** The unconstitutionalities by omission are stated in relation to ordinals 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. 9635 of December 3, 2018, called 'Law for the Strengthening of Public Finances'.\n\nThese were in force at the time the action was filed (interposición de la acción); they are transcribed below:\n\n“ARTICLE 5- Scope of application. The fiscal rule (regla fiscal) shall be applicable to the budgets of the entities (entes) and bodies (órganos) of the Non-Financial Public Sector (Sector Público no Financiero).\n\nARTICLE 6- Exceptions. The following institutions are exempt from the coverage scope of this title:\n\na) The Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) (CCSS), solely with regard to the resources of the disability, old age, and death (invalidez, vejez y muerte) regime (IVM) and the non-contributory regime (régimen no contributivo) administered by that institution.\n\nb) Any public enterprise (empresa pública) that participates directly in any activity open to the competition regime (régimen de competencia), but only in relation to that activity. This rule shall cease to apply when the enterprise requests a financial bailout (rescate financiero) from the Executive Branch (Poder Ejecutivo) or when its debt-to-assets coefficient exceeds fifty percent (50%).\n\nc) The Costa Rican Petroleum Refinery (Refinadora Costarricense de Petróleo) (Recope), solely with regard to the petroleum invoice (factura petrolera).\n\n(…)\n\nARTICLE 11- Debt ranges that must be considered to determine the growth of current expenditure (gasto corriente).\n\nThe current expenditure (gasto corriente) of the budgets of the entities (entes) and bodies (órganos) of the Public Sector (Sector Públic\n\nThe Non-Financial Public Sector will grow according to the following parameters of Central Government debt:\n\na) When the debt at the close of the budget year prior to the year of application of the fiscal rule does not exceed thirty percent (30%) of GDP, or the current expenditure-to-GDP ratio of the Central Government is seventeen percent (17%), the year-over-year growth of current expenditure shall not exceed the average nominal GDP growth.\n\nb) When the debt at the close of the budget year prior to the year of application of the fiscal rule is equal to or greater than thirty percent (30%) of GDP, but less than forty-five percent (45%) of GDP, the year-over-year growth of current expenditure shall not exceed eighty-five percent (85%) of the average nominal GDP growth.\n\nc) When the debt at the close of the budget year prior to the year of application of the fiscal rule is equal to or greater than forty-five percent (45%) of GDP, but less than sixty percent (60%) of GDP, the year-over-year growth of current expenditure shall not exceed seventy-five percent (75%)\n\nnominal.\n\nd) When the debt at the close of the budget year prior to the year of application of the fiscal rule is equal to or greater than sixty percent (60%) of GDP, the year-over-year growth of total expenditure shall not exceed sixty-five percent (65%) of the average growth of nominal GDP.\n\n(…)\n\nARTICLE 14. Publication of the fiscal rule scenario. The Ministerio de Hacienda shall communicate the growth rate of current expenditure resulting from the calculation of the fiscal rule, using official debt and average GDP figures. This rate shall be communicated jointly with the budget directives and shall be applied in the formulation of the budget for the following year. In the event that the Ministerio de Hacienda does not communicate the growth rate of current expenditure, it shall be assumed that the applicable rate for the budget year shall be the rule of the current scenario.\n\n(…)\n\nARTICLE 17- Destination of free surpluses generated by the application of the rule. In the event that public entities with liabilities generate a free surplus at the end of the budget year, this shall be allocated to amortizing their own debt. In the case of the surplus\n\nfree surplus (superávit libre) generated by entities that receive transfers from the national budget as a consequence of the application of the fiscal rule, such surplus (superávit) must be returned to the national budget in the year following that in which said surplus (superávit) was generated, to be used for debt amortization or public investment.\n\n(…)\n\nARTICLE 19- Compliance with the fiscal rule during the formulation and budgeting stages.\n\nThe Ministerio de Hacienda shall make the budgetary allocation of the budgetary titles that make up the central Administration in full adherence to the provisions of this law and of Ley N.º 8131, Administración Financiera de la República y Presupuestos Públicos, of 18 September 2001.\n\nThe Dirección General de Presupuesto Nacional shall verify that budgetary modifications and extraordinary budgets comply with the provisions of article 11 of this law and of Ley N.º 8131. In the event that such modifications imply non-compliance with the rule established herein, this Dirección must apply the provisions of article 177 of the Constitución Política, and shall inform the minister of Hacienda and the president of the República.\n\nIn the case of resources for deconcentrated bodies, the Minister of Finance (ministro de Hacienda) shall decide, based on criteria of fiscal sufficiency (suficiencia fiscal), respect for fundamental rights, and following the priorities of the National Development Plan (Plan Nacional de Desarrollo), the amount to be budgeted to these bodies and its growth.\n\nThe rest of the Non-Financial Public Sector (Sector Público no Financiero) entities must prepare their ordinary budget, extraordinary budget, and budget modifications (modificaciones presupuestarias) in full compliance with the provisions of Article 11 of this law. The verification of compliance with this rule shall be the responsibility of the Office of the Comptroller General of the Republic (Contraloría General de la República), which shall consider, for purposes of the legality review (bloque de legalidad) it performs, the certification that the Technical Secretariat of the Budgetary Authority (Secretaria Técnica de la Autoridad Presupuestaria) shall issue on compliance with the fiscal rule (regla fiscal). In the event that the Technical Secretariat of the Budgetary Authority certifies a breach of the fiscal rule by entities of the Non-Financial Public Sector, the Office of the Comptroller General of the Republic shall assess that certification and shall resolve as appropriate.\n\nTo address the provisions of this rule, the entities of Article 5 of this law, whose budget is subject to approval\n\nby the Comptroller General of the Republic (Contraloría General de la República), must submit copies of their ordinary and extraordinary budgets, and budget modifications, to the Technical Secretariat of the Budgetary Authority (Secretaria Técnica de la Autoridad Presupuestaria).\n\nThe Technical Secretariat of the Budgetary Authority will verify that the budget modifications and extraordinary budgets of the entities of the rest of the Non-Financial Public Sector (Sector Público no Financiero) comply with the provisions of article 11 of this law. Should situations arise that could lead to non-compliance with the rule, the Technical Secretariat of the Budgetary Authority must inform the Comptroller General of the Republic accordingly. Likewise, the entities of the Non-Financial Public Sector will remit copies of their quarterly executions and their budget liquidation to the Technical Secretariat of the Budgetary Authority.\n\nThe Technical Secretariat of the Budgetary Authority must communicate the results of the verifications mandated by this regulation, in accordance with the following deadlines, no later than the last business day of October of each year for the review of initial budgets, and within a period of ten business days, counted from receipt of the\n\n(...)\n\n*ARTICLE 26- Sanctions.* The unjustified breach of the fiscal rule and the control thereof constitutes a serious offense against the Public Treasury, and shall be sanctioned as indicated in article 68 of Law No. 7428, Organic Law of the Office of the Comptroller General of the Republic, of 7 September 1994. The foregoing is without prejudice to the provisions of article 339 of Law No. 4573, Penal Code, of 4 May 1970.\n\nIt is incumbent upon the Legislative Assembly to proceed against the comptroller and the sub-comptroller general of the Republic who fail in their duty to duly control compliance with the fiscal rule, under the terms established by article 43 of Law No. 7428, and considering the provisions of Law No. 8292, General Law of Internal Control, of 31 July 2002.”\n\nRegarding this regulation, the plaintiff parties accuse unconstitutionality by omission (inconstitucionalidad por omisión) on the basis of numbers 84 and 85 of the Political Constitution:\n\n“ARTICLE 84.- The University of Costa Rica is an institution of higher culture that enjoys independence for the performance of its functions and full legal capacity to acquire rights and contract obligations, as well as to establish its own organization and governance.\n\nThe other state institutions of university-level higher education shall have the same functional independence and equal legal capacity as the University of Costa Rica.\n\n*The State shall provide them with their own patrimony and shall collaborate in their financing.*\n\n*(Thus amended by the sole article of Law N° 5697 of June 9, 1975)*\n\n*ARTICLE 85.- The State shall provide the University of Costa Rica, the Technological Institute of Costa Rica, the National University, and the State Distance University with their own patrimony and shall create for them their own revenues, independently of those generated within these institutions.*\n\n*In addition, it shall maintain—with current revenues and with others that may be necessary—a special fund for the financing of State Higher Education. The Central Bank of Costa Rica shall administer that fund and, each month, shall place it in twelfths, to the order of the aforementioned institutions, according to the distribution determined by the body in charge of the coordination of state university higher education. The revenues of that special fund may not be abolished or diminished, unless other, better ones that substitute them are simultaneously created.*\n\n*The body in charge of the coordination of State University Higher Education shall prepare a national plan for this education, taking into account the guidelines established by the current National Development Plan.*\n\n*That plan must be completed, at the latest, by June 30 of years divisible by five and shall cover the following five-year period.*\n\nIt will include both the operating expenses and the investment expenses deemed necessary for the proper performance of the institutions mentioned in this article.\n\nThe Executive Branch shall include, in the ordinary expenditure budget of the Republic, the corresponding allocation, as set forth in the plan, adjusted according to the variation in the purchasing power of the currency.\n\nAny dispute that arises regarding the approval of the budgetary amount for the State Higher Education national plan shall be resolved by the Legislative Assembly.\n\nTransitory.- During the five-year period of 1981-1985, the distribution of the special fund referred to in this article shall be made as follows: 59% for the Universidad de Costa Rica; 11.5% for the Instituto Tecnológico de Costa Rica; 23.5% for the Universidad Nacional; and 6% for the Universidad Estatal a Distancia.\n\n(Thus amended by Article 1 of Law No. 6580 of May 18, 1981).”\n\n**VIII.- On the autonomy of state universities.** Regarding this aspect, the Chamber ruled in judgment No. 2019006935 of 11:40 a.m. on April 24, 2019:\n\n**“V.- On university autonomy.** From its inception, the Chamber addressed the scope of university autonomy established in Article 84 of the Political Constitution, in the following sense:\n\n“VI.- MEANING OF THE CONCEPT OF AUTONOMY.- (...) As provided in Article 84 of the Political Constitution, the Universities of the State are endowed with independence for the performance of their functions and with full legal capacity to acquire rights and contract obligations, as well as to establish their own organization and government. That autonomy, which has been classified as special, is complete and, therefore, different from that of the rest of the decentralized entities (decentralized entities) in our legal system (primarily regulated elsewhere in the Political Charter: Articles 188 and 190), and means, to begin with,\n\npart of its most important aspects, that those (sic) are outside the direction of the Executive Branch and its hierarchy, that they possess all the administrative faculties and powers necessary to carry forward the special purpose legitimately entrusted to them; that they can self-determine, in the sense that they are enabled to establish their plans, programs, budgets, internal organization and structure their own governance. They have regulatory power (autonomous and of execution); they can self-structure, distribute their competencies within the internal sphere of the entity, deconcentrate in what is legally possible and licit, regulate the service they provide, and decide freely on their personnel (as this Chamber already established in Resolution No. 495-92). These are the administrative, political, organizational, and financial modalities of autonomy that correspond to public universities. University autonomy has as its principal purpose, to procure for the entity all the necessary legal conditions so that it carries out with independence its mission of higher culture and education. (...) the university, as a center of thought\n\n\">free, it must and has to be free from pressures or measures of any nature that tend to prevent it from fulfilling, or that threaten, that, its great purpose.-\n\nVII.- THE LIMITS (sic) OF LEGISLATIVE POWER IN RELATION TO UNIVERSITY AUTONOMY.- (...) Although it is true—as has already been demonstrated—that the Legislative Assembly can regulate matters concerning universities, it is forbidden from preventing, subtracting or diminishing from those institutions those powers that are necessary for them to fulfill their corresponding purpose and that form (sic) their own Autonomy. That is to say, to express it in the terms of certain relevant doctrine, those entities have the initial, independent and unrestricted ownership and exercise of all administrative and teaching powers for the fulfillment of their material specialization, without this (sic) being able to be undermined by the Law. (...)\" (The highlighting is from the original). (Judgment number 1993-1313, of 13:54 hours on March 26, 1993. In a similar vein, see judgments number 1997-04570, of 12:51\n\nof the 14:49 hours of August 1, 1997, and 2004-10049 of the 14:49 hours of September 13, 2004)\n\nIn summary of the foregoing, the public universities of our country enjoy a privileged autonomous status within the decentralized public sector, since this independence encompasses all areas (administrative, political, financial, and organizational). In the exercise of said autonomy, according to the cited precedent, they may self-structure, distribute their competencies within the internal sphere of the entity, decentralize (desconcentrarse) to the extent legally possible and lawful, regulate the service they provide, and freely decide on their personnel, among other things. To this end, they may issue the regulations required for their organization:\n\n\"In reality, Article 84 of the Constitution establishes a regulatory reserve in favor of the universities, in the sense that their regulatory power (poder reglamentario) is the only one competent to regulate the organization of the university service; provisions that thus integrate a particular legal subsystem. The foregoing, however, should not be interpreted to mean\n\n...detached from state regulations. As has been rightly affirmed, the university institution is one more institution within the State and must operate within the framework of the general legal system.” (judgment No. 2002-8867 of 14:45 hours of September 11, 2002, reiterated in No. 2015-16454 of 9:05 hours of October 23, 2015).\n\nUnder that scheme, the University Council (Consejo Universitario) approved in session No. 3784-01 of June 26, 1991, the “Regulations of the Academic Salary System (Régimen Salarial Académico) of the University of Costa Rica,” published in Supplement (Alcance) to the University Gazette (Gaceta Universitaria) No. 5-91 of August 19, 1991, which are being challenged here. Now, even though this regulation was issued by the University Council in the exercise of that autonomy, the truth is that its articles would not be exempt from complying with the parameters of constitutionality, to which every legal system must be subject, and under that specification the allegations raised by the plaintiffs are hereby reviewed.”\n\n**VIII.- Regarding the Special Fund for Higher Education (FEES).**\n\nRegarding the scope of the FEES, this Court ruled in resolution no. 2018019511 of 11:45 p.m. on November 23, 2018, as follows:\n\n\"(…) it is pertinent to clarify the scope of the Special Fund for Higher Education (Fondo Especial para la Educación Superior, FEES), as regulated in the constitutional articles related to the financing of public universities and in other laws, with respect to what is proposed in the legislative bill “Strengthening of Public Finances.”\n\nLaw no. 5909 of June 10, 1976, “Tax Reform Law,” in article 7, states:\n\n“ARTICLE 7.- Special fund for the financing of Higher Education.-\nFor the purposes of the provisions of articles 84 and 85 of the Political Constitution, a special fund is created for the financing of Higher Education, which shall be composed of the following resources:\na) The proceeds from the Tax on Transfers of Real Estate, created by article 3 of this law;\nb) Twenty-five percent (25%) of the income tax revenues, which sum may reach up to thirty percent (30%) of such revenues; and\nc) The proceeds from the tax on bearer-share corporations, created by article 2 of this law.\nThe Banco Central de Costa Rica shall make the corresponding separations for the formation of the fund, which shall be distributed in accordance with the rules and principles established in the Cooperation Agreement for Higher Education in Costa Rica.”\n\nSubsequently, through law no. 6450, “Reform of the Fiscal Code, Income Tax Law, Law Creating the Ministry of Public Works and Transport,” of July 15, 1980, it was provided:\n\n“Article 3.- From the resources coming from the increased revenues achieved with the reforms introduced by this law, the sums of thirty million colones (₡ 30,000,000.00) and fifteen million colones (₡ 15,000,000.00) shall be allocated as own and independent revenues of the Universidad Nacional and the Instituto Tecnológico de Costa Rica, respectively.\nFrom the resources originating due to the reforms to the Income Tax Law, the sum of one hundred sixty-two million, eight hundred thousand colones (₡ 162,800,000.00) shall become part of the Special Fund for Higher Education, and, additionally, on a one-time basis in this year 1980, the sum of sixteen million, five hundred thousand colones (₡ 16,500,000.00) for the Universidad Estatal a Distancia and two million colones (₡ 2,000,000.00) for the Consejo Nacional de Investigaciones Científicas y Tecnológicas.\nAny surplus produced by the revenues created by this law shall go to swell the funds of the Caja Única del Estado.\nFor 1981 onwards, the Special Fund for Higher Education shall be increased by sixteen million, five hundred thousand colones (₡ 16,500,000.00) over the one hundred sixty-two million, eight hundred thousand colones (₡ 162,800,000.00) with which the Fund is swelled according to the provisions of the second paragraph of this article, thereby rising to the amount of one hundred seventy-nine million, three hundred thousand colones (₡ 179,300,000.00). On the understanding that as of 1981, the Universidad Estatal a Distancia is integrated into this Fund.”\n\nNow, at the dates of the aforementioned laws, articles 84 and 85 of the Political Constitution stipulated:\n\n“Article 84.--The University of Costa Rica is an institution of higher culture that enjoys independence for the performance of its functions, and full legal capacity to acquire rights and contract obligations, as well as to establish its own organization and government.\nArticle 85.--The State shall endow the University of Costa Rica with its own patrimony; it shall create the necessary revenues for it and contribute to its maintenance with a sum no less than that representing ten percent of the annual expenditure budget of the Ministry in charge of public education, an amount that shall be transferred in monthly installments. (*).”\n\nIt was not until the constitutional reform introduced through law no. 6580 of May 18, 1981, that the special fund for the financing of higher education was incorporated into our Magna Carta:\n\n\"Article 85.- The State shall endow the University of Costa Rica, the Instituto Tecnológico de Costa Rica, the Universidad Nacional, and the Universidad Estatal a Distancia with their own patrimony and shall create their own revenues, independently of those originating within these institutions.\nFurthermore, it shall maintain—with current revenues and with others that may be necessary—a special fund for the financing of State Higher Education. The Banco Central de Costa Rica shall administer that fund and, each month, shall place it in twelfths, to the order of the cited institutions, according to the distribution determined by the body in charge of the coordination of state university higher education. The revenues of that special fund may not be abolished or diminished unless other improved substitutes are simultaneously created.\nThe body in charge of the coordination of State University Higher Education shall prepare a national plan for this education, taking into account the guidelines established by the current National Development Plan.\nThat plan must be completed no later than June 30 of the years divisible by five and shall cover the immediate subsequent five-year period. It shall include both operating expenses and investment expenses deemed necessary for the proper functioning of the institutions mentioned in this article.\nThe Executive Branch shall include, in the ordinary expenditure budget of the Republic, the corresponding appropriation indicated in the plan, adjusted according to the variation in the purchasing power of the currency.\nAny difference that arises regarding the approval of the budgetary amount of the national plan for State Higher Education shall be resolved by the Legislative Assembly.”\n\nTransitory.- During the 1981-1985 five-year period, the distribution of the special fund referred to in this article shall be made as follows: 59% for the University of Costa Rica; 11.5% for the Instituto Tecnológico de Costa Rica; 23.5% for the Universidad Nacional; and 6% for the Universidad Estatal a Distancia.\"\n\nLater, law no. 7386 of March 18, 1994, reformed the first paragraph of article 3 of law no. 6450, “Reform of the Fiscal Code, Income Tax Law, Law Creating the Ministry of Public Works and Transport,” of July 15, 1980:\n\n“Article 3.- From the revenues achieved with the income tax, Income Tax Law, No. 7092 of April 21, 1988, the following sums shall be allocated for 1993: one hundred thirty million colones (₡ 130,000,000) for the Instituto Tecnológico de Costa Rica; two hundred sixty million colones (₡ 260,000,000) for the University of Costa Rica, which shall be distributed as follows: seventy-five million colones (₡ 75,000,000) for the Sede de Paraíso de Cartago and the remaining one hundred eighty-five million colones (₡ 185,000,000) for development programs; two hundred sixty million colones (₡ 260,000,000) for the Universidad Nacional, which shall be distributed as follows: two hundred million colones (₡ 200,000,000) for the Central Campus, thirty million colones (₡ 30,000,000) for the Sede Regional Brunca, and thirty million colones (₡ 30,000,000) for the Sede Regional Chorotega. The amounts shall constitute own and independent revenues of each Institution starting from the fiscal period of 1994 and, subsequently, shall be updated annually according to the inflation index, using a procedure similar to that used in the requalification of the Fund for Higher Education.”\n\nAdditionally, through law no. 7676 of July 23, 1997, which reformed article 78 of the Political Constitution, higher education was incorporated into the category of public expenditure destined for state education:\n\n“ARTICLE 78.- Preschool and general basic education are compulsory. These and diversified education in the public system are free and paid for by the Nation.\nIn state education, including higher education, public expenditure shall not be less than six percent (6%) annually of the gross domestic product, in accordance with the law, without prejudice to the provisions established in articles 84 and 85 of this Constitution.\nThe State shall facilitate the continuation of higher studies for those lacking pecuniary resources. The awarding of scholarships and financial aid shall be in charge of the Ministry of the respective sector, through the body determined by law.\n\nTransitory (article 78).- As long as the law referred to in the second paragraph of article 78 of the Constitution is not enacted, the gross domestic product shall be determined according to the procedure that the Executive Branch establishes by decree.”\n\nLikewise, law no. 8457 of October 4, 2005 (called “Reform of the Fiscal Code, Income Tax Law, Law Creating the Ministry of Public Works and Transport”), added article 3 bis to law no. 6450 of July 15, 1980:\n\n“Article 3 bis.- From the revenues achieved with the income tax, according to the Income Tax Law, no. 7092, of April 21, 1988, and its reforms, for 2006, the same sum budgeted by virtue of the application of the preceding article for the University of Costa Rica and the Universidad Nacional shall be allocated to the Universidad Estatal a Distancia. Said amount shall constitute own and independent revenue of the Institution, starting from the fiscal period of 2007; in addition, subsequently, it shall be updated annually according to the inflation index, using a procedure similar to that used in the requalification of the Fund for Higher Education.”\n\nFurthermore, by means of law no. 8954 of June 9, 2011, article 78 of the Political Constitution was reformed to increase the percentage of public expenditure on state education from 6% to 8% of the gross domestic product.\n\nSubsequently, through law no. 9131 of April 8, 2013 (called “Reform of law no. 6450, 'Reform of the Fiscal Code, Income, Higher Education Fund, Bearer Shares'”), the following was added to the end of the first paragraph of article 3 of law no. 6450 of July 15, 1980:\n\n“The amount transferred to the Instituto Tecnológico de Costa Rica shall be the same as that for the University of Costa Rica and the Universidad Nacional, and shall be used for the establishment and development of university campuses in the province of Limón and in the Península de Osa area; likewise, for other projects of the Institute.”\n\nNow, in the sub lite, articles 3 and 3 bis of law no. 6450, which are sought to be repealed, regulate different scenarios.\n\nFirst, article 3 establishes:\n\n1. Own and independent revenues for the public universities.\na. First, own revenues are set for the University of Costa Rica (₡ 260,000,000), the Universidad Nacional (₡ 260,000,000), and the Instituto Tecnológico de Costa Rica (₡ 130,000,000), as well as an updating method similar to that used in the requalification of the Fund for Higher Education.\nb. Additionally, on a one-time basis in 1980, the sum of ₡ 16,500,000 was granted to the Universidad Estatal a Distancia and ₡ 2,000,000 to the Consejo Nacional de Investigaciones Científicas y Tecnológicas.\n2. Resources of the Special Fund for Higher Education specifically:\na. First, an initial amount of ₡ 162,800,000 is determined.\nb. From 1981 onwards, the fund is increased by ₡ 16,500,000 over the ₡ 162,800,000 with which the Fund is swelled, according to the provisions of the second paragraph of this article. Thus, this amount rises to ₡ 179,300,000, on the understanding that the Universidad Estatal a Distancia is integrated into this Fund starting in 1981.\n\nLikewise, article 3 bis provides:\n\n1. Own and independent revenues for the Universidad Estatal a Distancia and its method of updating, according to the inflation index, using a procedure similar to that used in the requalification of the Fund for Higher Education. This university is entitled to the same sum budgeted, by virtue of the application of article 3, for the University of Costa Rica and the Universidad Nacional.\n\nRelevantly, it must be emphasized that, although article 78 of the Political Constitution recognizes that higher education is included within the 8% annually of gross domestic product of public expenditure directed to state education, it is no less true that such provision states that this was stipulated “without prejudice to the provisions established in articles 84 and 85 of this Constitution.”\n\nArticle 84 of our Magna Carta establishes that the University of Costa Rica is an institution of higher culture that enjoys independence for the performance of its functions and full legal capacity to acquire rights and contract obligations, as well as to establish its own organization and government (the same functional independence and equal legal capacity recognized for the other state university higher education institutions); furthermore, that the State shall endow them with their own patrimony and collaborate in their financing.\n\nFor its part, constitutional article 85 provides:\n\n“The State shall endow the University of Costa Rica, the Instituto Tecnológico de Costa Rica, the Universidad Nacional, and the Universidad Estatal a Distancia with their own patrimony and shall create their own revenues, independently of those originating within these institutions.\nFurthermore, it shall maintain—with current revenues and with others that may be necessary—a special fund for the financing of State Higher Education. The Banco Central de Costa Rica shall administer that fund and, each month, shall place it in twelfths, to the order of the cited institutions, according to the distribution determined by the body in charge of the coordination of state university higher education. The revenues of that special fund may not be abolished or diminished unless other improved substitutes are simultaneously created.\nThe body in charge of the coordination of State University Higher Education shall prepare a national plan for this education, taking into account the guidelines established by the current National Development Plan.\nThat plan must be completed no later than June 30 of the years divisible by five and shall cover the immediate subsequent five-year period.\n\nIt shall include both the operating expenditures and the investment expenditures deemed necessary for the proper performance of the institutions mentioned in this article.\n\nThe Executive Branch shall include, in the ordinary expenditure budget of the Republic, the corresponding item set forth in the plan, adjusted in accordance with the variation in the purchasing power of the currency.\n\nAny dispute that arises regarding the approval of the budgetary amount of the national plan for State Higher Education shall be resolved by the Legislative Assembly.\n\nTransitional.— During the five-year period from 1981 to 1985, the distribution of the special fund referred to in this article shall be made as follows: 59% for the University of Costa Rica; 11.5% for the Technological Institute of Costa Rica, 23.5% for the National University, and 6% for the State Distance University.\n\n(As amended by Article 1 of Law No. 6580 of May 18, 1981).” (Emphasis not in the original).\n\nIt is observed then that the aforementioned provision certainly states that the revenues may not be abolished or diminished unless other improved revenues that substitute them are simultaneously created; however, the foregoing is only directed at the revenues that make up the Special Fund for the Financing of State Higher Education (FEES), and not at those other revenues that are the own revenues of the state universities (“independently of those originating in these institutions,” as constitutional article 85 reads). Likewise, the mandate that this fund be maintained with the current revenues and others that are necessary is explained because before the special fund was constitutionally included, it had already been established by law with the respective resources assigned to it.\n\nPrecisely, Law No. 6450, both in the version prior to the amendment of constitutional Article 85 and in the subsequent one, always provided for differentiated treatment between the own and independent revenues of the universities and the resources of the Special Fund for Higher Education (FEES). Furthermore, in the modifications that said law underwent (subsequent to the cited constitutional amendment), it was recorded that the procedure for updating own revenues was assimilated to that used in the requalification of the Fund for Higher Education, which confirms that these are two distinct matters.\n\nBy virtue of the foregoing, since the revenues contemplated in the first paragraph of article 3 and article 3 bis of Law No. 6450 are the universities' own revenues and independent of those originating within them, such sums are not covered by the constitutional guarantees of the FEES (impossibility of abolishing or diminishing revenues without creating others that substitute them). Furthermore, with respect to the remaining paragraphs of the aforementioned Article 3, although they refer to resources assigned to the FEES, it is no less true that they contain nominal amounts in favor of the universities, such that article 24 of Title IV “Fiscal Responsibility of the Republic” of the consulted bill respects the content of Article 85 of the Political Constitution. That provision establishes:\n\n“ARTICLE 24- Budgetary allocation\n\nThe National Budget Directorate (Dirección General de Presupuesto Nacional) shall make the budgetary allocation of the transfers using the criteria of the previous article. Said allocation may not be less than the budget in force at the time of the approval of this law.”\n\nIn that sense, this article guarantees that the items repealed from the FEES may not be diminished with respect to the budget in force at the time of the law’s approval.\n\nHowever, the legislature in the consulted bill also extended the application of the aforementioned provision to the repealed own revenues, such that no decrease in income is observed that would render the constitutional purposes of the universities nugatory or that would mean the State is not guaranteeing their revenues and their own patrimony.\n\nIn relation to the projections by the consulting party with which they seek to exemplify a decrease in the nominal amount guaranteed by article 24 of the bill, such doubts refer to future and uncertain situations that cannot be assessed in the abstract by this Chamber. Indeed, should such a scenario arise, it would not necessarily entail an automatic violation of the Constitution’s Law, since it would be necessary to analyze the particularities of the specific historical moment, as well as the eventual content and respective application of the normative provisions that were in force at such a juncture.\n\nThe petitioners also allege a violation of the principles of progressivity and non-regressivity related to the fundamental right to education.\n\nOn this point, Article 2.1 of the International Covenant on Economic, Social and Cultural Rights establishes:\n\n“Article 2\n\n1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” (Emphasis not in the original).\n\nLikewise, Article 1 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador” provides:\n\n“Article 1\n\nObligation to Adopt Measures\n\nThe States Parties to this Additional Protocol to the American Convention on Human Rights undertake to adopt the necessary measures, both domestically and through cooperation among the States, especially economic and technical, to the maximum extent of available resources and taking into account their degree of development, in order to achieve progressively, and in accordance with their domestic legislation, the full realization of the rights recognized in this Protocol.” (Emphasis not in the original).\n\nThus, in the first place, it is observed that when applying a control of conventionality in matters of social rights, a relevant aspect to consider is the financial sustainability and availability of the State’s economic resources, even according to its level of development, which depends on the economic context at a given historical moment and on the technical basis used to justify some type of measure, always seeking the greatest possible realization of such rights in accordance with what economic circumstances permit. Precisely, that progressive achievement of which the norms speak undoubtedly constitutes an objective to be reached, but subject to an inexcusable condition: that there indeed be resources.\n\nIn the second place, the principles of progressivity and non-regressivity do not imply a right to the immutability of the legal system. By way of example, in matters of environmental human rights, this Chamber has stated:\n\n“From the principle of progressivity of human rights and the principle of non-retroactivity of norms to the detriment of acquired rights and consolidated legal situations, enshrined in article 34 of the Magna Carta, derives the principle of non-regressivity or irreversibility of the benefits or protection achieved. The principle stands as a substantive guarantee of rights, in this case, the right to a healthy and ecologically balanced environment, by virtue of which the State is obliged not to adopt measures, policies, nor approve legal norms that worsen, without reasonable and proportionate justification, the situation of the rights achieved up to that point. This principle does not imply an absolute irreversibility since all States experience national situations, of an economic, political, social nature or caused by nature, that negatively impact the achievements reached up to then and oblige a downward rethinking of the new level of protection (…) Consequently, in application of these two principles, this Constitutional Chamber has established that it is constitutionally valid to expand by executive decree the physical extension of protection areas (principle of progressivity); however, the reduction can only be done by law and upon prior completion of a technical study adjusted to the principles of reasonableness and proportionality, the demands of ecological equilibrium and a healthy environment, and the general well-being of the population, which serves to justify the measure.” (Judgment No. 2012-013367 of 11:33 on September 21, 2012, emphasis not in the original; in the same sense see judgments No. 2017-005994 of 11:00 on April 26, 2017 and 2014-012887 of 14:30 on August 8, 2014).\n\nThe foregoing applies not only to environmental human rights but to all rights in general, as a thesis of principle. Neither the right of progressivity nor that of non-regressivity oppose the mutability inherent in law (permanent and inevitable modification), since no right is immutable or eternal, given that this would mean the petrification of the legal system and would cause Law to cease being a dynamic means for solving society’s problems, which perpetually vary over time. What the aforementioned principles do demand is that the tenor should always and preferably aspire to increase the coverage of human rights and likewise of social rights for the sake of the Social Rule of Law; however, such a goal is not alien to the socio-economic context of a specific historical juncture nor to the obligation to carry out an exercise of weighing and optimizing the various constitutional principles, rights, and values at play (for example, between the principle of the Social Rule of Law and that of Budgetary Equilibrium), such that in the context of a particularly serious State financial unsustainability, duly accredited from a technical standpoint, measures can be taken to alleviate the situation, provided these are adopted safeguarding the fundamental rights enshrined in the Political Constitution and the instruments of international human rights law ratified by Costa Rica, as well as the essential qualities of the country’s political regime (in a democratic, free, independent, multiethnic, and pluricultural republic, whose Government is popular, representative, participatory, alternative, and responsible), which implies that the remedies in question cannot empty any constitutional right of content, a situation that, in the present case and at this time, is not observed to be occurring with the challenged regulation.”\n\n**IX.- On the Alleged Unconstitutionalities.** The moving parties accuse unconstitutionality by omission in relation to Article 85 of the Political Constitution. They argue that the FEES was not exempted from the application of Articles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No.\n\n9635, despite the fact that its origin and fixing regime are of a constitutional nature, meaning that ordinary law cannot come to restrict it. They allege an unconstitutionality by omission with respect to articles 84 and 85 of the Magna Carta, since the state universities were not relieved of complying with Articles 5, 6, 11, 14, 17, 19 and 26 of Title IV of Law No. 9635, even though they enjoy full legal capacity to acquire rights and contract obligations, as well as to establish their own organization and government, which empowers them for the following: 1) definition and approval of the National Development Plan for State University Higher Education with five-year validity (Plan Nacional de Desarrollo de la Educación Superior Universitaria Estatal, PLANES); 2) formulation and approval of their institutional budgets to comply with that plan without the intervention of the Executive Branch or its government bodies. They state that, by virtue of such independence, they possess the power to formulate and approve the National Development Plan for the purposes of university education, in which task they annually formulate and approve their institutional budgets. They argue that, through the annual allocation of funds with specific constitutional destination for the FEES, the State provides budgetary content to the state universities so that they may carry out their purposes and tasks, as well as their annual operational plans, in accordance with the current PLANES and their powers of governmental independence, including university planning, organization, and administration. They consider that the annual execution of the PLANES and the annual disbursement of the FEES were subjected to conditions not authorized by article 85 of the Political Constitution. They reproach that the state universities were made subject, in matters of political independence, administration, and government, to the directives and orders of the Executive Branch, both through the Ministry of Finance and the Budgetary Authority, which transgresses the power of self-determination of the state universities to establish\n\nplans, programs, and budgets, an integral part of university autonomy. They argue that state universities are outside the scope of the Budgetary Authority (Autoridad Presupuestaria). They add: *\"as recognition of their constitutional independence in matters of policy, administration, and governance, as expressly provided by article 1°, subsection d) of the Financial Administration and Public Budgets Law (Ley de Administración Financiera de la República y Presupuestos Públicos), N°8131 of September 18, 2001, published in the official gazette La Gaceta number 198 of October 16, 2001. \"ARTICLE 1.- Scope of application This Law regulates the economic-financial regime of the organs and entities that administer or are custodians of public funds. It shall be applicable to: (...) d. The state universities, the municipalities, and the Caja Costarricense de Seguro Social, solely with respect to compliance with the principles established in title II of this Law, regarding responsibilities and to provide the information required by the Ministry of Finance for its studies. In all other respects, they are excepted from the scopes and the application of this Law.\"* They argue that the regime of constitutional independence conferred on the UCR is special and differs from that established for the other autonomous institutions by the Political Constitution (Constitución Política). They refer to the fact that in the minutes of the Constituent Assembly it was clarified that the regime of the institutions\n\n...autonomous institutions did not apply to the UCR: “Messrs. TREJOS and ESQUIVEL amended their motion in the following terms: ‘Appoint the directors of the autonomous institutions, in accordance with the law.’” The preceding wording was also objected to by several Representatives. Mr. ORTIZ asked if all directors of the autonomous institutions are going to be appointed by the Executive. If this is so, what will the situation of the University of Costa Rica be? Or will the Executive appoint only the directors whom the law empowers it to? Mr. FACIO clarified that, within the general structure of the 1949 Project, the University of Costa Rica is considered not as an autonomous institution but as an independent institution of higher culture. If that definition is maintained, there will not be the problem that Mr. Gonzalo Ortiz has raised.”\n\nThey add that the regime of autonomous institutions, regulated in Articles 188 and following of the Fundamental Law, considered their independence in matters of government, for which reason they could not be subjected to the centralized planning of the State through the National Development Plan; however, after the constitutional reform of provision 188 (introduced by Law No. 4123 of May 31, 1968), the autonomous institutions became subject to the law\n\nin matters of governance, differentiating and distancing itself from the independence regime in force for university governance. They explain that the reform to ordinal 84 of the Political Constitution (effected by law no.\n\nof the state university higher education institutions’ the same attributes of functional independence and full legal capacity, inherent to their university autonomy, with full independence in matters of governance, which includes planning, administration, and organization. They mention that the regime of independence enjoyed by the state higher education university institutions encompasses the administrative, political, organizational, and inherent modalities of university autonomy, which has been classified as special, complete, and distinct from the rest of the decentralized entities contemplated in Articles 188 to 190 of the Political Constitution. They indicate that constitutional provision 84 preserves, contains, and guarantees the exercise of the public powers inherent to those university institutions. The foregoing implies that “a) They are (sic) outside the direction of the Executive Branch and its hierarchy, b) They have all the administrative faculties and powers necessary to carry out the special purpose legitimately entrusted to them. c) They enjoy the power of self-determination to establish their plans, programs, budgets, internal organization, and to structure their own government. d) They carry out their mission of higher culture and education with independence. e) They impart teaching, conduct and deepen scientific research, cultivate the arts and letters in their maximum expression, analyze and criticize, with objectivity, elevated knowledge, and rationality, the social, cultural, political, and\n\neconomic well-being of its people and the world, propose solutions to the great national problems, serve as driving forces for ideas and actions to achieve development at all levels, without prejudice to other specialties or subjects assigned to it.\" They assert that the essential content of constitutional article 84 prescribes that the university, as a center of free thought, must and has to be exempt from pressures or measures of any nature that tend to prevent it from fulfilling its great missions or that threaten this (they mention rulings nos.\n\n495-92 and 1313-93 of the Constitutional Chamber (Sala Constitucional). They state that the independence of self-governance vested in state university centers prevents the Executive Branch (Poder Ejecutivo) and its dependencies from interfering in university governance and planning. They recount that the independence of organization that state universities exclusively possess allows them to organize internally, to deconcentrate for the pursuit of their own purposes, and to provide themselves with the required internal regulations with complete disregard for Parliament. They maintain that state institutions of higher education, when they enact their organic statutes, issue an act that by its nature has the rank of material law, since they substitute for the competence of the Legislative Assembly (Asamblea Legislativa). They add that just as ordinary law depends to a degree on the Magna Carta (Carta Magna), university statutes depend directly on the constitutional norm. They assert that the power and independence of university organization precludes the Legislative Branch from issuing laws on the governance, organization, or administration of the universities, or that prevent the latter from fully exercising their legal capacity to acquire rights and contract obligations, or that likewise restrict or truncate the free fulfillment of their mission. They explain that, in accordance with Articles 84 and 85 of the Political Constitution (Constitución Política), the framework of constitutional independence conferred upon state universities also includes that of ownership and free disposal over their own assets (patrimonio propio), constitutionally separated from that of the State. They add: \"Over this patrimonial estate, called the University Treasury (Hacienda Universitaria), separate from the Public Treasury (Hacienda Pública), these institutions exercise their constitutionally guaranteed power of self-determination through their full legal capacity to acquire rights and contract obligations. This University Treasury\n\ncomprises all of its assets, both material and financial and budgetary, which remain subject exclusively to the constitutional university power of self-determination.” They note that, in the administration of its “University Treasury (Hacienda Universitaria)”, all state universities have exercised their full legal capacity to acquire and confer rights and to contract obligations with their own assets in the exercise of their constitutional independence in matters of administration and governance, without requiring additional authorizations or approvals external or extraneous to their own governing authority. They indicate that, as part of the exercise of this power of asset disposition and political, administrative, and governmental independence, constitutional article 85 establishes that state universities shall have their own National Plan for the Development of Higher Education (Plan Nacional de Desarrollo de Educación Superior) that determines the needs and specifies the quantification of the FEES, as well as the expenditures and investments that must be considered annually by these universities for the formulation of their institutional budgets, in such a way that each annual operational plan (plan operativo anual) fulfills the purposes, goals, and objectives described in the plan for the respective five-year period. They assert that, on the occasion of the foregoing, the national budget cannot detail the destination or expenditure line items of the universities, but rather must contain a pure and simple transfer, not subject to legal conditions not foreseen or authorized by constitutional article 85. They argue that any transfer destined for the financing of the FEES is ‘tied’ to the fulfillment of the purposes established in the PLANS, as regulated by article 85 of the Fundamental Law, such that no surplus\n\nbudgetary may have a destination different from that constitutionally established, such that there can be no reimbursement of sums to the single treasury of the State. Concerning the challenged ordinal paragraphs 5 and 6, they state that ordinary law cannot render constitutional provisions ineffective. They add that, with or without an express exception in subparagraph 6, its application to state universities contradicts their constitutional regime, because it conditions the transfer of the FEES to legal-type restrictions (fiscal rule (regla fiscal)) and violates their regime of autonomy in this matter. They explain that the universities would be subject to the direct intervention of the Executive Branch and its government policies through the Ministry of Finance and the Budgetary Authority, as established in the challenged Articles 11, 14, and 19. They mention that the foregoing renders ineffective the annual indexation that constitutional subparagraph 85 orders for the FEES, as well as nullifying the operational and investment needs contained in the PLANS for the fulfillment of the universities' purposes aimed at guaranteeing the fundamental right to education, which is also established by ordinal paragraph 78 of the Magna Carta by requiring the State to invest no less than 8% of the Gross Domestic Product in Education, without restrictions derived from the so-called fiscal rule (regla fiscal) being able to be imposed. They state that the Constitution is violated by applying the fiscal rule to state universities and subjecting them to the sanctioning regime of the challenged subparagraph 26. They argue that not only are mandatory regulations stipulated for the formulation of university budgets contrary to the constitutional regime (which is of direct application\n\nand immediate), but also that administrative and criminal sanctions are contemplated against the authorities that contravene the challenged clauses 5, 6, 11, 14, and 15. They indicate that the \"constitutional violation due to the omission incurred in Title IV of Law No. 9635\" is even more evident when its Article 17 orders the return to the national budget of any surplus from the university budget, thereby diverting the constitutional purpose of the FEES transfer for use in a different end - debt amortization or public investment -. They recount that any resulting surplus forms part of the \"University Treasury\" (\"Hacienda Universitaria\") and cannot be returned to the national budget. Therefore, they consider that the application of the fiscal rule (regla fiscal) in the state university sphere would have no consequence whatsoever in favor of the Public Treasury, which renders it unjustified. They consider that the exoneration from the fiscal rule regime provided in Title IV of Law No. 9635 is constitutionally unavoidable, which is why they request that the unconstitutionality by omission of such legal provisions be declared because they violate the state university regime contemplated in Articles 84 and 85 of the Constitution, which are of full, direct, prevailing, and immediate application. They adduce that the Constitutional Chamber, in ruling No.\n\n2018019511 of 21:00 hours on November 23, 2018, ordered that the law \"could regulate the concept of 'public spending' (gasto público) in education, since Article 78 expressly authorizes it\"; however, that authorization neither applies to nor can affect ordinals 84 and 85 of the Constitution itself. They maintain that the exception of the fiscal rule (regla fiscal) for state universities is constitutionally imperative (by application of the aforementioned ordinals), as was justified in the resolution mentioned above with respect to numerals 73 and 177 eiusdem: \"In summary, the fact that the rule in question expressly excludes from the fiscal rule (regla fiscal) the resources of the Disability, Old Age, and Death Regime (Régimen de Invalidez, Vejez y Muerte, IVM) and the Non-Contributory Regime (Régimen No Contributivo) administered by the CCSS, is not per se unconstitutional, since, on one hand, the introduction of such exceptions is constitutionally imperative, and, on the other, such allusion does not prevent the sickness and maternity insurance (seguro de enfermedad y maternidad) from also being excluded by direct application of postulates 73 and 177 of the Political Constitution, so that with regard to such aspects no legal vacuum (vacío jurídico) emerges that contravenes the constitutional order.\" They mention these constitutional violations: \"As a corollary of all the foregoing, in the present case there is\n\nthe concurrence of two constitutional violations by omission in Title IV of Law No. 9635 of November 28, 2018: a) Constitutional violation by omission against Article 85 of the Political Constitution, for not exempting from compliance with Articles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. No. (sic) 9635 of December 3, 2018, the Special Fund for the Financing of State University Higher Education (Fondo Especial para el Financiamiento de la Educación Superior Universitaria Estatal, FEES) which has its own constitutional origin and regime for setting and determination, which ordinary law cannot abolish or repeal. b) Constitutional violation by omission against Articles 84 and 85 of the Political Constitution, for not exempting from compliance with Articles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. No. (sic) 9635 of December 3, 2018, the state universities which have full legal capacity to acquire rights and contract obligations, as well as to provide for their own organization and government, among which are included the definition and approval of their National Development Plan for State University Higher Education (Plan Nacional de Desarrollo para la Educación Superior Universitaria Estatal, PLANES), with a five-year term, as well as\n\nas well as the formulation and approval of their institutional budgets to comply with it, without the intervention of the Executive Branch or its government bodies.” They make the following petition: “Based on all of the foregoing, we request the Constitutional Chamber (Sala Constitucional) to process this action of unconstitutionality, for which we provide copies of the law, and to uphold the unconstitutionality alleged and claimed against articles 5, 6, 11, 14, 17, 19 and 26 of Title IV of Law No. No. (sic) of December 3, 2018, declaring in judgment: (…). B.- The unconstitutionality by omission of articles 5, 6, 11, 14, 17, 19 and 26 of Title IV of Law No. No. (sic) 9635 of December 3, 2018 for violation of article 85 of the Political Constitution, by not exempting the Special Fund for the Financing of State University Higher Education (Fondo Especial para el Financiamiento de la Educación Superior Universitaria Estatal, FEES) from its compliance, which possesses its own constitutional origin and regime for fixing and determination, which ordinary law can neither abolish nor repeal. C.- The unconstitutionality by omission of articles 5, 6, 11, 14, 17, 19 and 26 of Title IV of Law No. No. (sic) 9635 of\n\nDecember 3, 2018, for constitutional violation by omission against Articles 84 and 85 of the Political Constitution, for not exempting the formulation of state university budgets from compliance. D.- To dimension the effects of the judgment that upholds this action, preventing the Executive Branch, through the Ministry of Finance, the Budgetary Authority, and the Comptroller General of the Republic, from considering the formulation, approval, settlement, evaluation, and monitoring of university budgets exempt from compliance with the fiscal rule provided in Title IV of Law No. 9635. D.- To prevent both the Ministry of Finance, the Budgetary Authority, and the Comptroller General of the Republic from refraining from actions or omissions that directly or indirectly apply the fiscal rule to university budgets and finances or to the annual amount of the FEES that corresponds constitutionally.”\n\nFrom the foregoing, it follows that, although the plaintiffs develop arguments concerning university autonomy, the FEES, and the constitutional norms that regulate them, it is no less true that both at the beginning and at the end of their brief they expressly group their arguments into two unconstitutionalities by omission and, in fact, that is how it was literally set forth in their claim.\n\nThus, even though both university autonomy and the FEES find support in constitutional precepts and have been addressed by the jurisprudence of the Chamber (as observed in the preceding considerations), *prima facie* it is unavoidable to analyze the figure of unconstitutionality by omission for the purpose of clarifying whether the allegations of the plaintiff parties are capable of being assessed in the terms formulated by them in the *sub lite*.\n\nIn this regard, the Chamber, in resolution no. 2021017210 of 9:15 a.m. on August 4, 2021, stated:\n\n\"**II.- ON UNCONSTITUTIONALITY BY OMISSION.-** Additionally, it is important to indicate that Article 73 of the Ley de Jurisdicción Constitucional states in subsection f), that an action of unconstitutionality is admissible against the inertia, omissions, and abstentions of public authorities. Based on these norms, it is possible to affirm that, through the action or the consultation of constitutionality, a problem of unconstitutionality by omission may legitimately be raised. However, not every normative omission can be challenged before the constitutional jurisdiction. In the case of laws and other provisions of general scope, this Tribunal has reiterated that the omissions that may be challenged in this venue are only those that occur when confronted with a duty or obligation directly and expressly provided for in the Law of the Constitution or when it involves an implicit norm that entails discrimination against a subject (see, among others, judgments No. 2002-04394, of 4:24 p.m. on May 14, 2002, No. 2005-05649, of 2:39 p.m. on May 11, 2005, No. 2012-014167, of 4:00 p.m. on October 10, 2012, and No. 2015-017330, of 9:30 a.m. on November 4, 2015).\"\n\nAdditionally, this Tribunal ordered in judgment no. 2019013748 of 9:20 a.m. on July 24, 2019:\n\n\"**III.- On unconstitutionality by omission.** Pursuant to the provisions of Article 73 of the Ley de la Jurisdicción Constitucional, it is possible to file an action of unconstitutionality against the inertia, omission, or abstention of public authorities. A reading of subsection f), of the aforementioned article, could lead one to consider that any omission by the branches of government, be it the Executive Branch or the Legislative Branch, is subject to review by the Constitutional Tribunal; however, the truth is that only those omissions that occur as a consequence of an express and direct mandate contained in the Constitución Política may be subject to constitutionality review through the action. On this matter, in vote number 2005-5649 of 2:39 p.m. on May 11, 2005, the following was indicated:\n\n\"III.- REVIEW OF LEGISLATIVE OMISSIONS AND THE PRINCIPLE OF SEPARATION OF FUNCTIONS. The Law of the Constitution, that is, the set of constitutional principles, values, and precepts contained in the Magna Carta, may be violated by public authorities and private individuals through active or omissive conduct. In the specific case of the Asamblea Legislativa, that branch of the State breaches the block of constitutionality by action when it enacts unconstitutional laws or when, during the legislative procedure for their issuance, it incurs substantial defects of such magnitude that they warrant its annulment. The Asamblea Legislativa infringes the parameter of constitutionality by omission when, faced with an express or tacit mandate from the original constituent or the reforming power to enact a law developing a constitutional content or clause, it fails to do so –absolute omission– or when, despite having enacted a law, this law proves discriminatory, by omission, by failing to regulate the situation of a specific sector or group of the population or of the potential addressees it should have included or covered –relative omission–. In both cases, this Constitutional Tribunal has sufficient competence and express normative authorization to exercise constitutionality review and declare a possible unconstitutionality of the omissive conduct. Indeed, Articles 10 and 48 of the Constitución Política and Article 1 of the Ley de la Jurisdicción Constitucional charge this specialized Chamber with safeguarding the supremacy of the Law of the Constitution, so that if this Tribunal deems that conduct by omission of the Asamblea Legislativa breaches it, it is exercising that preeminent and essential function and must so declare to restore the rule of the constitutional order. Note that Article 73 of the Ley de la Jurisdicción Constitucional, in its subsection a), establishes that the action of unconstitutionality shall be admissible 'Against laws and other general provisions, including those originating from acts of private subjects, that infringe, by action or omission, any constitutional norm or principle'; this section covers the case of relative or partial omissions, since it presupposes that a law has already been enacted that is unconstitutional by omission by not including certain material situations, groups, or sectors of addressees it should have encompassed. Subsection f) of that same numeral prescribes that the action of unconstitutionality shall also proceed 'Against the inertia, omissions, and abstentions of public authorities'; there is no doubt that this normative hypothesis covers legislative omissions of an absolute nature, since the Asamblea Legislativa as a branch of the State or public authority must comply with the express or tacit mandates imposed by the original constituent or the reforming power to mediate in the development of certain constitutional clauses or contents. Thus, it is evident that the constitutionality review of legislative omissions does not collide with the principle of separation of functions (Article 9 of the Constitución Política), in this case, regarding those functions established by the Law of the Constitution for the ordinary legislator and those established by it for the Constitutional Tribunal. This type of oversight, far from weakening that principle, enacts and strengthens it, since it clearly demarcates the scope of the powers and competences, by action and omission, of the Legislative Branch in light of the Law of the Constitution. It is necessary to remember that the Constitución Política has normative and direct efficacy that strongly binds all constituted public powers –including the Asamblea Legislativa and this Chamber– and urges them to respect and observe it, to prevent it from being circumvented in an oblique or indirect manner through omissive conduct or legislative silence, this Chamber being, by express constitutional provision (Article 10), its guarantor.\n\nIV.- TYPES OF LEGISLATIVE OMISSIONS REGARDING THE DEVELOPMENT OF CONSTITUTIONAL PRECEPTS. The constituent may provide, implicitly or explicitly, that certain constitutional contents be developed by the legislator. In the first case, even if the constituent does not provide that a law shall regulate the matter, the nature thereof requires legislative mediation for its adequate operative application, that is, these are not complete, self-applicable, or self-executing constitutional norms, but rather they require *interpositio legislatoris*. The foregoing may also occur when, by application of the principle of reservation of law, a specific constitutional clause requires regulation by a legal norm (e.g., the regulation of fundamental rights, the establishment of crimes, penalties, and taxes, etc.). Regarding the hypotheses in which the constituent explicitly imposes on the legislator the development of a specific matter or constitutional content, since they are incomplete precepts, two different cases can be distinguished. The first arises when the legislator expressly establishes that a law shall regulate a specific matter, without indicating a deadline or term to the legislator for its development; in this case, it should even be understood that it must occur within a reasonable period for the effective fulfillment of the mandate and design provided by the constituent, without prejudice, of course, to the faculty of the Asamblea Legislativa to weigh whether such development is politically opportune or convenient at a given moment.\n\nThe second case occurs when the constituent, in addition to mandating the enactment of a law, sets a deadline for the legislator for the development and implementation of a constitutional content, a situation that, in our constitutional system, has occurred, basically, with respect to certain partial reforms to the Constitution, in response to which the derived constituent power understands that they must be legislatively implemented and complemented within a specific period, estimating that there is a certain urgency and celerity or, if you will, urgency in their execution. In this latter hypothesis, where the reforming power sets a specific deadline for the legislator, a sort of self-limitation occurs regarding the time available to process and issue the respective law, since it is the legislative body itself, acting as the reforming power, that restricts or limits the timeframes of that collegial body and its instances –committees–, acting as the ordinary legislator, to process and issue the implementing law. This character of self-restriction, regarding the timelines for substantiating the legislative procedure, imposes on the Asamblea Legislativa a greater and more pronounced responsibility and commitment to process and issue the respective law, since it is that same branch of the State, albeit acting in materially or substantially different functions, that consents to the temporary restriction, aware of the volume of matters in process or in the legislative pipeline, of the timelines of legislative procedures, and of the capacity, limits, and scope of work of the committees and the plenary. It is not superfluous to warn that, absolutely in all the previously mentioned cases, the legislator retains full discretion or freedom to configure the content of the respective law, the only limit thereof potentially being the constitutional parameter itself or the Law of the Constitution.\"\n\nBy virtue of the foregoing, the Chamber has sought to prevent the technical figure of unconstitutionality by omission from being distorted, through arguments by means of which what the promoters sometimes seek is the modification of certain legislative texts in favor of their interests. Evidently, the fact that a text has specific content and omits other content is a simple hermeneutical generality, which only in the specific cases defined by this Tribunal in its jurisprudence on the matter, constitutes the case of unconstitutionality by omission.\"\n\nLikewise, the Chamber resolved in judgment no. 2019009724 of 12:23 p.m. on May 29, 2019:\n\n\"**IV.- On unconstitutionality by omission.** The Sala Constitucional has indicated that the Law of the Constitution may be infringed by action or by omission. Subsection a) of Article 73 of the Ley de Jurisdicción Constitucional indicates that the action of unconstitutionality proceeds against laws and other general provisions, including those originating from acts of private subjects, that infringe, by action or omission, any constitutional norm or principle. Subsection b), for its part, provides that an action may be filed against subjective acts of public authorities, when they infringe, by action or omission, any constitutional norm or principle, if they are not subject to the remedies of habeas corpus or amparo. Finally, subsection f) of this same norm states that the action of unconstitutionality proceeds against the inertia, omissions, and abstentions of public authorities. Pursuant to such norms, it is valid to affirm that, through the action or the consultation of constitutionality, a problem of unconstitutionality by omission may legitimately be raised. However, not every normative omission can be challenged before the constitutional jurisdiction. In the case of laws and other provisions of general scope, the Chamber has reiterated that the omissions that may be challenged in this venue are only those that occur when confronted with a duty or obligation directly and expressly provided for in the Law of the Constitution, or when it involves an implicit norm that entails discrimination against a subject – see, among others, judgments numbers 2015-17330 and 2016-5915-. Likewise, it has been held that the admissibility of an action of unconstitutionality by omission requires demonstrating that the Constitución Política requires, for the full enforceability of its precepts, an action by the Legislative Branch with a specific content - judgment number 2016-6327-.\"\n\nSimilarly, this Tribunal held in resolution no. 2018017681 of 9:40 a.m. on October 24, 2018:\n\n\"**III.- ON UNCONSTITUTIONALITY BY OMISSION.** In relation to Articles 371 and 377 of the Código de Trabajo, it is clear that the claimant's intention is to have the omission that, in his judgment, both norms contain, declared unconstitutional. In judgment No. 2005-05649 of 2:39 p.m. on May 11, 2005, the Chamber defined the most relevant features of this type of unconstitutionality, provided for in Article 73, subsections a) and f), of the Ley de la Jurisdicción Constitucional:\n\n\"The Law of the Constitution, that is, the set of constitutional principles, values, and precepts contained in the Magna Carta, may be violated by public authorities and private individuals through active or omissive conduct. In the specific case of the Asamblea Legislativa, that branch of the State breaches the block of constitutionality by action when it enacts unconstitutional laws or when, during the legislative procedure for their issuance, it incurs substantial defects of such magnitude that they warrant its annulment. The Asamblea Legislativa infringes the parameter of constitutionality by omission when, faced with an express or tacit mandate from the original constituent or the reforming power to enact a law developing a constitutional content or clause, it fails to do so –absolute omission– or when, despite having enacted a law, this law proves discriminatory, by omission, by failing to regulate the situation of a specific sector or group of the population or of the potential addressees it should have included or covered –relative omission–. In both cases, this Constitutional Tribunal has sufficient competence and express normative authorization to exercise constitutionality review and declare a possible unconstitutionality of the omissive conduct.\"\n\nIt is specified therein that this is a specific type of unconstitutionality, to which not any figure framed in an omissive form can be reduced, as also highlighted by the Chamber's resolution No. 2010-8600 of 3:08 p.m. on May 12, 2010:\n\n\"Although this Constitutional Tribunal is empowered to act as a negative legislator, with the power to annul from the legal system all those norms it considers unconstitutional, the truth is that it is impeded from acting as a positive legislator creating norms. On the other hand, even (sic) though this Chamber is competent to hear legislative omissions as established in Article 73 of the Ley de la Jurisdicción Constitucional, it is important to clarify that not every normative omission can be challenged through this means. In that sense, only those omissions that occur as a consequence of an express and direct mandate contained in the Constitución Política may be subject to constitutionality review through the action. Now, in the specific case, the claimant complains that the norms do not indicate the procedure for designating worker representatives in the event of a collective dispute, but the omission challenged by the plaintiff does not originate from an express mandate of the constituent; rather, it is an omission that the plaintiff claims to find in the text of the article, without the duty to legislate in the sense explained by the claimant originating from the Constitución Política. Likewise, as this is a Tribunal that acts as a negative legislator, it is clear that a potential favorable judgment, with the consequent elimination of the norm, would not remedy the omission indicated by the promoter, so the action filed in those terms lacks utility and is therefore manifestly inadmissible. As in this case, what is challenged is not the text of the norms themselves, but that which –in the claimant's opinion– they omit, this Tribunal cannot rule in order to supplant the competences of other organs or branches. Under such circumstances, the action is inadmissible regarding this point.\"\n\nThus, the Chamber has sought to prevent the technical figure of unconstitutionality by omission from being distorted, through arguments by means of which what is sought is the modification of certain legislative texts in favor of specific interests. Evidently, the fact that a text has specific content and omits other content is a simple hermeneutical generality, which only in the specific cases defined by the Chamber since judgment No. 2005-5649, constitutes the case of unconstitutionality by omission. That is, only when the gap implies the violation of an express constitutional mandate, is it possible to exercise the review in question. The admissibility of an action of unconstitutionality by omission requires demonstrating that the Constitution demands, for the full enforceability of its precepts, an action by the Legislative or Executive Branch, with a specific content.\"\n\nPrecisely, in the *sub lite*, the plaintiff parties explicitly accuse an unconstitutionality by omission in numerals 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. 9635 in relation to ordinals 84 and 85 of the Ley Fundamental. For the purposes of resolving this point, one must begin with the positive-legal content of such provisions, to whose literal wording reference is made:\n\n\"ARTICLE 84.- The University of Costa Rica is an institution of higher culture that enjoys independence for the performance of its functions and full legal capacity to acquire rights and contract obligations, as well as to establish its own organization and governance. The other state institutions of university higher education shall have the same functional independence and equal legal capacity as the University of Costa Rica.\n\nThe State shall endow them with their own patrimonio and shall collaborate in their financing.\n\n(Thus amended by the sole article of Law No. 5697 of June 9, 1975)\n\nARTICLE 85.- The State shall endow with their own patrimonio the University of Costa Rica, the Instituto Tecnológico de Costa Rica, the Universidad Nacional, and the Universidad Estatal a Distancia and shall create their own revenues, independently of those originated within these institutions.\n\nFurthermore, it shall maintain – with the current revenues and with others that are necessary – a special fund for the financing of State Higher Education. The Banco Central de Costa Rica shall administer this fund and, each month, shall place it in twelfths, at the disposal of said institutions, according to the distribution determined by the body responsible for the coordination of state university higher education.\n\nThe revenues of that special fund may not be abolished or diminished unless other improvements are simultaneously created to replace them.\n\nThe body responsible for coordinating State University Higher Education shall prepare a national plan for this education, taking into account the guidelines established by the current National Development Plan.\n\nThat plan must be completed no later than June 30 of years divisible by five and shall cover the immediately following five-year period. It shall include both the operating expenditures and the investment expenditures deemed necessary for the proper performance of the institutions mentioned in this article.\n\nThe Executive Branch shall include, in the ordinary expenditure budget of the Republic, the corresponding item set out in the plan, adjusted according to the variation in the purchasing power of the currency.\n\nAny dispute that arises regarding the approval of the budgetary amount of the national plan for State Higher Education shall be resolved by the Legislative Assembly.\n\nTransitory.- During the 1981-1985 five-year period, the distribution of the special fund referred to in this article shall be made as follows: 59% for the University of Costa Rica; 11.5% for the Costa Rica Institute of Technology; 23.5% for the National University; and 6% for the State Distance University.\n\n(Thus amended by Article 1 of Law No. 6580 of May 18, 1981).”\n\nNow, taking into consideration the allegations of the plaintiffs and the content of the transcribed articles, no omission of an express and direct mandate (duty or obligation) contained in the Political Constitution to enact laws is apparent, nor is the development of any discriminatory situation to the detriment of specific sectors or groups of the population. Precisely, from a technical-legal point of view, the acción de inconstitucionalidad is a process vested with particular formalities, in which legal counsel is indispensable and regarding which the Chamber must limit itself to the points raised concretely and in the specific manner in which the petitioners do so. Therefore, since in the sub lite the plaintiffs are accusing an unconstitutionality by omission, they bear the elementary obligation to demonstrate that they find themselves in one of the scenarios of omission developed by the jurisprudence cited ut supra, because only in such specific cases is it legally plausible that a transgression like the one alleged by the plaintiffs could be configured.\n\nIn fact, the filing brief accuses the unconstitutionality of seven articles of Law No. 9635 by virtue of the application of the fiscal rule to the state universities and the FEES; however, based on the plaintiffs' petition and the development they themselves made in the action, the Chamber does not perceive any unconstitutionality by omission concerning Articles 84 and 85 of the Political Constitution.\n\nConsequently, in the terms formulated by the plaintiffs themselves, any inertia on the part of the Legislative Assembly susceptible to being declared an 'omission by unconstitutionality' through this action is dismissed, since the foregoing requires, as a sine qua non condition, that the existence of an express and direct positive-legal mandate in the Fundamental Law be demonstrated, the breach of which would give support to the alleged omission, which in the sub lite the plaintiffs forget in their argumentative development. The logical-legal derivation of the foregoing is that the request for dimensioning formulated by the plaintiffs is equally improper.\n\nFinally, after the course of the action and the hearings granted, the attorney-in-fact of the plaintiffs appears to clarify and refute the criteria of the Procuraduría General de la República, the Contraloría General de la República, and the Ministerio de Hacienda; likewise, he develops additional arguments of unconstitutionality and reiterates that what is requested is that the unconstitutionality by omission be declared. However, such allegations do not form part of the object of the sub iudice, because they were raised at a procedural stage not provided for in the legal system for those purposes.\n\n**X.- Different reasons of Judge Rueda Leal in relation to the alleged unconstitutionalities by omission.** Of relevance for the analysis of the sub examine, I state several technical-legal aspects of the unconstitutionality by omission that are essential to make a plausible constitutional review viable on the matter.\n\nIn this regard, precisely, in the cases developed in the jurisprudence cited ut supra, unconstitutionalities by omission arise; however, this type of injury to the constitutional order is not restricted to such scenarios but also emerges when the legislative inaction itself breaches the valid exercise of some fundamental right or weakens its protection. Not in vain does Article 2 of the American Convention on Human Rights impose on States the adoption of domestic law provisions to make the rights and freedoms of that instrument effective. Analogously, for the sake of the real validity and full lived experience of fundamental rights, these must be instrumentalized through lower-ranking norms, as occurs with extraordinary frequency, which imposes an obligation on the legislator, the omission of which may be the object of a constitutional review by this jurisdiction.\n\nNow, before such scenarios, it is up to the plaintiff to reasonably develop the grounds for the unconstitutionality by omission that they seek to have declared by the Chamber. On this point, it must be noted that the argumentative thread of an unconstitutionality by action is substantially different from that of one by omission: while the former is declared by virtue of the direct clash of a norm with the bloque de constitucionalidad, the latter finds its genesis in a legal gap (laguna jurídica), that is, in an inertia in the obligation to legislate in accordance with the Law of the Constitution that reaches such magnitude that it comes to lacerate the essential content of a fundamental right.\n\nIn the specific case, I precisely consider that the argumentation of the plaintiffs is incoherent with their claim of unconstitutionality by omission in the sub lite. Certainly, the petitioner reasons the unconstitutionality of the subjection to the fiscal rule of both the FEES and the budgets of the state universities; however, instead of requesting the unconstitutionality of the legal norm that provides for such subjection (according to the argumentative line developed in the filing brief), what he does is to require an unconstitutionality by omission in relation to a set of norms that apply to all entities and organs of the non-financial public sector; moreover, the plaintiffs suggest the existence of a clear and evident unconstitutionality by omission.\n\nThe foregoing it does, however, without developing or explaining it as such; instead, it simply and plainly limits itself to mentioning it in a timely manner in very specific sections of its filing brief and in the prayer for relief.\n\nBased on the foregoing reasoning, I dismiss the action.\n\n**XI.- Documentation provided to the case file.** The parties are warned that if they have provided any document on paper, as well as objects or evidence contained in any additional device of an electronic, computer, magnetic, optical, telematic nature or produced by new technologies, these must be withdrawn from the office within a maximum period of 30 business days counted from the notification of this ruling. Otherwise, all material that is not withdrawn within this period will be destroyed, pursuant to the provisions of the \"Reglamento sobre Expediente Electrónico ante el Poder Judicial\", approved by the Corte Plena in session no. 27-11 of August 22, 2011, article XXVI, and published in the Boletín Judicial number 19 of January 26, 2012, as well as in the agreement approved by the Consejo Superior del Poder Judicial, in session no. 43-12 of May 3, 2012, article LXXXI.\n\n**Por tanto:**\n\nBy majority, the acción de inconstitucionalidad is dismissed, as an unconstitutionality by omission was not substantiated in the specific case. Magistrate Garro Vargas enters a note. Magistrate Rueda Leal gives different reasons regarding the alleged unconstitutionalities by omission. Magistrate Cruz Castro dissents and declares the acción de inconstitucionalidad with merit for direct and flagrant violation of university autonomy.\n\n\n\n**Fernando Castillo V.**\n**Presidente**\n\n\n\n**Fernando Cruz C.** **Paul Rueda L.**\n\n\n\n**Luis Fdo. Salazar A.** **Jorge Araya G.**\n\n\n\n**Anamari Garro V.** **José Roberto Garita N.**\n\n\n\n\nExp: 19-011540-0007-CO\n\nRes. n.°2022-023239\n\nNOTE OF MAGISTRATE GARRO VARGAS.\n\nIn the specific case, I have leaned toward dismissing the acción de inconstitucionalidad filed, accepting the considerations of the majority. However, I have deemed it necessary to enter a note to outline my position.\n\nFirstly, it is necessary to point out that the acción de inconstitucionalidad is a formal process. For example, since vote **n.°1996-0679** this Court warned the following:\n\n*“The Sala Constitucional is subject to the Constitution and to the Law, especially the law that governs it. In that sense, if the legislator wanted, in use of its discretionary powers, that the acción de inconstitucionalidad be a formalist remedy -contrary to the remedies of habeas corpus and amparo-, this instance cannot resolve against the express text of the law, to eliminate legal requirements, considered necessary by the legislator. Thus, if the petitioner did not comply with the indicated prevention, the processing of this action must be denied by legal imperative of article 80 of the Ley de la Jurisdicción Constitucional”.* (The highlighting does not correspond to the original).\n\nThus, the processes of constitutionality control are formal not only regarding admissibility aspects, but also in relation to the argumentation itself. On this specific aspect, article 78 of the Ley de la Jurisdicción Constitucional establishes that when filing the acción de inconstitucionalidad, the grounds shall be set forth in a clear and precise manner, with specific citation of the norms or principles that are considered infringed. In accordance with that provision, this Court has maintained a solid jurisprudential line to the effect that whoever promotes an acción de inconstitucionalidad has the burden of demonstrating how that provision infringes the Law of the Constitution and, additionally, must indicate why the claim should be upheld. For example, since judgment **n.°2016-000341** this Court has textually warned the following:\n\n*“I.- ON THE DISMISSAL OF THE ACTION, DUE TO THE OMISSION OF THE PETITIONING PARTY TO SUPPORT OR EXPLAIN THE REASONS WHY IT CONSIDERS THE CHALLENGED NORM UNCONSTITUTIONAL. The Ley de la Jurisdicción Constitucional, in its article 3, provides that “The Constitución Política shall be deemed infringed when that results from the comparison of the text of the questioned norm or act, its effects, or its interpretation or application by public authorities, with the constitutional norms and principles”.*\n\nNow, for this Court to consider the violation established and to be able to declare the unconstitutionality of the challenged norm or act, with the consequent annulment and expulsion from the legal system, whoever brings an action of unconstitutionality bears the burden of demonstrating how that provision infringes Constitutional Law and, additionally, must indicate why the claim should be upheld. This is termed by this Chamber as the burden of argumentation, that is, that “a norm that facially appears contrary to the Constitution shifts the burden of argumentation to those who maintain that in reality there is no conflict between that norm and the Political Constitution; the opposite occurs if one acts against a norm that upon first examination does not appear contrary to the Constitution, in which case it is the claimant who must advance arguments that convince of the unconstitutionality” (see judgment No. 0184-95 of 4:30 p.m. on January 10, 1995).” (The highlighting does not correspond to the original. Considerations that have been reiterated by the Chamber, at least, in judgments numbers 2017-003591, 2018-006098 and 2019-008101).\n\nConsequently, the argumentative burden falls upon the claimant, and it is not for this Chamber to remedy such omissions. The logic and scope of the jurisdictional body's conduct are governed by principles different from those applied in proceedings for jurisdictional guarantees of fundamental rights (amparo remedies and habeas corpus remedies), which are summary and informal. In those, the aim is to protect the fundamental rights of specific individuals; in constitutional control proceedings, the aim is to verify whether the challenged norm should be expelled from the legal system, thus protecting—in the first instance—its purity, as a condition of the legal soundness of the Rule of Law. As what the claimant seeks is not a trivial matter, but precisely the declaration of unconstitutionality of a norm, it is understandable why the proceeding is formal both in the admission phase and in the hearing stage, when analyzing the claimant's allegations on the merits.\n\nIn this specific case, it was alleged that there was an unconstitutionality by omission. The Chamber noted beforehand that the concept used does not coincide with what it understands as such according to its reiterated case law. Therefore, without ruling on whether or not the application of the fiscal rule is appropriate in the case of public universities, it considered that the action should be dismissed.\n\n**Anamari Garro V.**\n**Magistrada**\n\n**Exp. 19-011540**\n\n**Dissenting vote of Magistrate Cruz C. The budgetary independence of the Universities: fundamental principle of constitutional autonomies.**\n\nUnlike the majority opinion, I consider that this action should be granted due to the direct and flagrant violation of the challenged norms against university autonomy, as I indicate below.\n\nThe majority considers in this vote that there is no unconstitutionality because unconstitutionality by omission was not proven. Certainly, the claimant in its petition, instead of requesting the unconstitutionality of the legal norm that mandates such subjection, requests an unconstitutionality by omission in relation to a set of norms that apply to all entities and bodies of the non-financial public sector. However, from its line of argument, it is understood that the unconstitutionality it requests is the subjection to the fiscal rule of both the FEES and the budgets of the state universities. I consider that this Chamber cannot fall into such extreme formalities when the unconstitutionality is evident, as in this case. The unconstitutionality is evident, whether by action or by omission. Furthermore, the breach of constitutional mandates regarding the financing of universities has become a reiterated practice. In its trajectory, the Chamber has demonstrated a propensity towards substantive interpretations, avoiding literal or formal interpretations, especially in the face of an evident injury to university autonomy.\n\nArticles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. 9635 of December 3, 2018, called \"Ley de Fortalecimiento de las Finanzas Públicas,\" are unconstitutional for including and subjecting public universities to the fiscal rule, which constitutes a direct and flagrant violation of university autonomy.\n\nNote that the claimants develop arguments around university autonomy, the FEES, and the constitutional articles that regulate them. Thus, the unconstitutionality is both by action and by omission. The foregoing for three main reasons:\n\n- From Constitutional Articles 84 and 85, it follows that university autonomy of public universities is safeguarded, which implies an obligation for the State, including the Legislative Branch, which prevents both positive actions (issuing norms that violate the scope of this autonomy) and failing to issue them (omitting to issue norms that violate said autonomy).\n- The fiscal rule is a norm of legal and not constitutional rank. There has been no constitutional reform in our country to grant such a rule a supra-legal character that it does not possess, nor one above the rest of fundamental rights. The principle of budget equilibrium, contained in Constitutional Article 176, does not encompass the fiscal rule, which is of later and recent creation and of legal character. In the prevailing political times, and without much discussion, such a restriction will likely be imposed, because the most important thing in the situation we are living through seems to be the equilibrium of the meager public finances. \"Fiscalism\" is gaining space and is imposed, regrettably, above social and individual rights.\n- The Special Fund for the financing of state higher education (FEES) enjoys special constitutional protection, which cannot be conditioned by a legal norm that goes against university autonomy. It is a serious transgression that faces few objections from the political system. Despite what the Constitution and the interventions of the members of the Constituent Assembly establish, the letter and spirit of the Constitution are ignored by the political instances that govern from Parliament and the Executive Branch.\n\nThe Constituent enshrined in the Political Constitution that the public university, as a center of free thought, must and has to be exempt from pressures or measures of any nature that tend to prevent it from fulfilling, or threaten, its great mission (see Judgment No. 1993-1313 of 1:54 p.m. on March 26, 1993, and No. 2016-002419 of 11:31 a.m. on February 17, 2016), so that the constituents did not want either the Executive or the Legislative Branch to use budgets as a mechanism to influence, pressure, or manipulate public universities.\n\nFurthermore, as I have already expressed, I consider that the fiscal rule finds no constitutional support but is a legal norm that cannot prevail over Constitutional Articles 84 and 85.\n\nRegarding the scope of university autonomy, recall what the case law of this Chamber has indicated (see vote No. 2021-017098). According to Constitutional Article 84 (“ARTICLE 84.- The University of Costa Rica is an institution of higher culture that enjoys independence for the performance of its functions and full legal capacity to acquire rights and contract obligations, as well as to establish its own organization and government. The other state institutions of university higher education shall have the same functional independence and equal legal capacity as the University of Costa Rica. // The State shall endow them with their own patrimony and shall collaborate in their financing.”) public universities or state universities enjoy a special degree of autonomy, which can be called university autonomy. According to constitutional case law, such autonomy encompasses administrative, political, financial, and organizational autonomy. Therefore, public universities possess all the administrative faculties and powers to carry out their mission. Thus, they can self-determine, in the sense that they are empowered to establish their own plans, programs, budgets, internal organization, and structure their own government, all within the limits established by the Political Constitution itself and the special laws that regulate their organization and operation (see vote No. 2012-011473). The Political Constitution establishes that universities enjoy independence for the performance of their functions and full legal capacity to acquire rights and contract obligations, as well as to establish their own organization and government. The jurisprudential line of the Chamber has been clear in establishing that public universities have the highest degree of autonomy, which is self-organizational autonomy or full autonomy. That autonomy, which has been classified as special, is complete and, therefore, distinct from that of the rest of the decentralized entities of our legal system (regulated mainly in another part of the Political Charter: Articles 188 and 190), and means that they are outside the direction of the Executive Branch and its hierarchy, that they possess all the administrative faculties and powers necessary to carry forward the special purpose legitimately entrusted to them. They can self-determine, in the sense that they are enabled to establish their own plans, programs, budgets, internal organization, and structure their government. Furthermore, public universities have regulatory power (autonomous and executional); they can self-structure, distribute their competencies within the internal scope of the entity, deconcentrate to the legally possible and licit extent, regulate the service they provide, and freely decide regarding their personnel. All these are powers of the administrative, political, organizational, and financial modalities of autonomy that correspond to public universities. The main purpose of university autonomy is to provide the entity with all the necessary legal conditions to carry out its mission of higher culture and education independently. (see judgment No. 1992-495, No. 1993-1313, No. 2002-8867, and No. 2008-013091). This follows from the words of Constituent Fernando Baudrit when he said:\n\n\"What we seek is to avoid for the University the threat of future Congresses moved by politicking interests ... Tomorrow, if the University does not adapt to the prevailing political climate, a Congress, with the purpose of liquidating it, could easily achieve this by reducing the State subsidy. I already said that if we were not living under the current regime, the University would have disappeared, or it would have become a docile dependency of the Executive Branch. There were already schemes, in this very chamber, and by the last Congress in that sense. They were even considering the names of the persons who would replace us in the direction of the University. Who assures us that in the future a similar situation could not arise? Precisely to prevent this from possibly happening. It is necessary, indispensable, to endow the University of Costa Rica with a genuine administrative, teaching, and economic independence.\" (Acta 160, 4/X/1949, tomo III, p.395.).\"\n\nThis autonomy is intimately related to the academic freedom of universities and to universities being crucibles (scenario of the fusion of very diverse ideas) for the creation of thought, criticism, and construction of knowledge. A basic function in any democratic society. Thus, the autonomy of public universities protects them from the Executive Branch and the rest of the Public Administration; but also from the law, to prevent the legislator from delegating to administrative authorities powers capable of imposing on universities decisions regarding the scope of their competencies, such as the regulation of courses, social action, research, entrance examinations, conferral of university academic degrees, among others, as this Chamber has repeatedly stated in judgments No. 1993-1313 and No. 1996-276.\n\nUniversity autonomy is necessary for the institution to fulfill its objectives, which would run the risk of being hindered if intrusion by the Executive and Legislative Branches is permitted. This Chamber has warned that public universities are not simple teaching institutions but have higher purposes, committed to the development of the country in general and of Costa Ricans in particular. It specifically stated: (…) The main purpose of university autonomy is to provide the entity with all the necessary legal conditions to carry out its mission of higher culture and education independently. In this sense, the University is not a simple teaching institution (…), for it is responsible for the complex function, integral to its nature, of carrying out and deepening scientific research, cultivating the arts and letters in their maximum expression, analyzing and criticizing, with objectivity, elevated knowledge, and rationality, the social, cultural, political, and economic reality of its people and the world, proposing solutions to great problems and therefore, in the case of underdeveloped or poorly developed countries like ours, serving as a driver of ideas and actions to achieve development at all levels (spiritual, scientific, and material), contributing with that work to the effective realization of the fundamental values of Costa Rican identity, which can be summarized … in those of democracy, the Social Rule of Law, the essential dignity of the human being and the 'system of liberty', as well as peace (article 12 of the Political Constitution) and Justice (41 idem); in short … that the University, as a center of free thought, must and has to be exempt from pressures or measures of any nature that tend to prevent it from fulfilling, or threaten, its great mission (…)” (judgment No. 2008-013091)\n\nThe Constitutional Chamber, when analyzing the issue of university autonomy, has defined very specific aspects that affect the materialization of said autonomy, such as that related to the salary of university officials. Thus, in judgment No. 2015-10248, it addresses the topic of salary in the following terms: “…the university autonomy that assists public higher education centers (established with constitutional rank) extends so that these—through their highest hierarchical bodies—establish the manner in which they will resolve the remunerative regime of their servants “…always attending to elementary constitutional principles that govern the entire public apparatus, such as reasonableness and proportionality, as well as the adequate safeguarding of public finances (…).” However, in the exercise of its autonomy, the UNED has the possibility of recognizing in a differentiated manner the payment of annuities (anualidades) of persons who come from working outside that institution, since the specificity of the university dynamic and its administration justifies a different valuation between the annuity (anualidad) coming from another public agency and that developed properly within the university. Thus, it is reasonable that time served within the organizational structure of the UNED is recognized with a greater salary increase (plus salarial) than that worked in other public agencies.\n\nFurthermore, Constitutional Articles 84 and 85 protect the revenues of the FEES in the sense that these may not be abolished or diminished unless others are created to substitute them, as well as that the intention of the derived legislator with the constitutional reform to Article 78 Constitutional that raised to 8% of the Gross Domestic Product (GDP) the amount of the national budget destined for the financing of education—including public higher education—was to improve and strengthen public education through greater public investment, in order to enhance the exercise of the fundamental right to education that constitutes an essential element for the social and economic development of individuals (see Judgment No. 2019-024746 of 10:30 a.m. on December 12, 2019).\n\nThus, it is clear then that the Special Fund for the Financing of Higher Education enjoys constitutional rank; and, therefore, special protection by reason of its nature and the purposes for which it was created. What was intended to guarantee was the effective constitutional autonomy of the financing of public higher education entities, without establishing a fixed percentage of the national budget for this purpose, but which, at the same time, with the delivery of those resources each year, allows for the protection of the autonomy and independence of public universities, all aimed at a final objective which is the effective exercise of the right to education of the population. Institutions that cultivate knowledge and research require a jurisdictional protection (fuero) that guarantees a reasonable distance from the political storms that inevitably afflict the Executive Branch and Parliament. Knowledge and the objectivity of investigations cannot fall under the control of those who every four years exercise power in the Administration or Parliament. Those political storms, sometimes so passionate and out of control, cannot reach an activity as important as that of the Universities. That is the spirit of the constitutional norms I am commenting on. It is a singular autonomy of our Constitution, which responds to the historical-political experiences of the forties of the last century.\n\nThe Constituent concentrated on shielding the state resources that would finance higher education against external political influences and pressures, in such a way as to guarantee the independence and autonomy of public universities, since they did not want the Executive Branch or the Legislative Branch to use budgets as mechanisms to influence, pressure, or manipulate the universities, to the point that, subsequently, through constitutional reform in the year 1981, the right of amendment of the budget legislator was categorically limited, by establishing their intervention exclusively for the moment when there is no agreement between the Executive Branch and the National Council of Rectors (CONARE). See vote No. 2022-017987. All these lessons about checks and balances have been gradually forgotten, and the interest in influencing the Universities grows, despite what the Constitution and the express will of the constituents indicate.\n\nThis trend is apparent in the fiscal rule (regla fiscal), because it would be limiting what is established in Article 85 of the Constitution, regarding the protection of higher education.\n\nRemember that this Constitutional Court has indicated that the right to education is conceived not only as a right of citizens, but also as a public service, as a positive provision provided to the inhabitants of the Republic by public administrations and, as such, is subject to continuity, regularity, efficiency, effectiveness, equality, and universality, such that, as part of that efficiency, it is logical to think that the entire conglomerate of economic resources it has—FEES and those from other sources—be channeled towards its fulfillment, thereby allowing the educational offering to be expanded, more technology to be acquired, personnel hiring to be improved, the number of available spaces for first admission to different degree programs to be increased, extension and community outreach programs to be broadened, more sectors to be generated in which remunerated services can be provided, scholarship programs for people with limited resources to be extended, among others, without ever losing sight of the fact that the state university does not have a profit motive but does have an interest in improving its offering for the benefit of the student body and the community. Without ignoring that the University also has a mission in research and community outreach (acción social). From a fundamental rights perspective, this Court could not dissociate the resources that the state university obtains from the very special function granted to it under Articles 84 and 85 of the Constitution. It is not a simple teaching institution—teaching, research, and extension—but rather a complex function, an integral part of its nature to carry out and deepen scientific research, to cultivate the arts and letters in their highest expression, to analyze and criticize, with objectivity, elevated knowledge, and rationality, the social, cultural, political, and economic reality of its people and the world, to propose solutions to the great problems and to serve as a driving force for ideas and actions to achieve development at all levels (spiritual, scientific, and material), contributing with that work to the effective realization of the fundamental values of the Costa Rican identity, which can be summarized as those of democracy, the Social State based on the Rule of Law, the essential dignity of the human being, and the system of freedom, in addition to peace (Article 12 of the Political Constitution), and Justice (Article 41 idem) (see ruling No. 1313-93 of 13:54 on March 26, 1993).\n\nNote the seriousness of what the challenged norms establish, subjecting the public universities to the fiscal rule (Art. 5), not excluding them from its application (Art. 6), establishing debt ranges for current expenditure growth (Art. 11), that the Ministry of Finance will issue a communication and guidelines for budget formulation (Art. 14), establishing the destination of surpluses (Art. 17), compliance with the fiscal rule during the formulation and budgeting stage (Art. 19), and sanctions for non-compliance with the fiscal rule (Art. 26). The fiscal rule becoming an imposition, it is a subjection to a kind of “straitjacket” for the State Universities regarding what the central government provides on the matter, and furthermore, to the detriment of their autonomy and the high purposes and duties that were granted to them.\n\nOf note in this regard is what the Office of the Attorney General (Procuraduría General de la República) itself indicated in its report, when it states, regarding Art. 17, that free surplus (superávit libre) is not even applicable to the FEES, as this fund is comprised of resources with a specific destination determined by the Political Constitution. These are tied, unavailable funds, consequently, for the ordinary and budgetary legislator. The special fund for financing state higher education possesses the characteristic that its resources have a specific destination assigned by the Political Constitution, specifically, to finance state higher education. From this perspective, these “tied” funds (Voto No. 5754-94) cannot be destined for any purpose other than that which has been set by the Fundamental Charter. For the foregoing, Article 17 of the Public Finance Strengthening Law cannot encompass the FEES resources due to their specific and non-free destination, so it can never be understood that the FEES is included within the scope of the challenged Art. 17.\n\nFurthermore, regarding the challenged Article 19, in the same sense as indicated by the Office of the Attorney General, the Budgetary Authority (Autoridad Presupuestaria) could in no way substitute for the Public Universities in their competence to formulate or reformulate their budget.\n\nFor all of the foregoing, I consider that Articles 5, 6, 11, 14, 17, 19, and 26 of Title IV of Law No. 9635 of December 3, 2018, called “Public Finance Strengthening Law,” are unconstitutional for including and subjecting the public universities to the fiscal rule, which constitutes a direct and flagrant violation of university autonomy, in the terms indicated.\n\nA separate comment is warranted regarding the practical irrelevance of a decision by this Constitutional body, because the budget has already been executed contrary to what the Constitution dictates. The decision, even if it had been favorable, has very little practical relevance. There are many ways to evade the Constitutional mandate, despite oaths and promises. This trend that ignores the mandate of the fundamental constitutional pact is reiterated in almost all budgets, and even though the unconstitutionality may be upheld, the decision has little practical relevance. The Constitution and its mandates can be weakened or repealed by repeated political practices that contradict the ideological foundation and the text of the Constitution itself. Respect for the Constitution must be a priority for those who exercise the Executive Power and the Parliament; it is not only the competence of a body with as much political weakness as the Constitutional Court.\n\n**Fernando Cruz C.**\n\n**Magistrate**\n\nExp: 19-011540-0007-CO 1" }