Res. n.°2024-013908
CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE. San\nJosé, at twelve hours and ten minutes on the twenty-first of May, two thousand\ntwenty-four.
Optional legislative consultation on constitutionality\nfiled by the legislators ADA ACUÑA CASTRO, ELIÉCER FEINZANG MINTZ, GILBERTO CAMPOS\nCRUZ, JOHANA OBANDO BONILLA, JORGE ANTONIO ROJAS LÓPEZ, JORGE DENGO ROSABAL,\nKATTIA CAMBRONERO AGUILUZ, LUIS DIEGO VARGAS RODRÍGUEZ, MANUEL MORALES DÍAZ,\nPAOLA NÁJERA ABARCA, PILAR CISNEROS GALLO and WALDO AGÜERO SANABRIA, regarding the bill “Creation\nof the canton of Colorado, twelfth canton of the province of Guanacaste”,\nwhich is being processed in legislative file n.°22.643.
WHEREAS:
1.- At 15:10 hrs. on 18\nApril 2024 the legislators filed an\noptional consultation on constitutionality regarding the bill “Creation of the canton of Colorado,\ntwelfth canton of the province of Guanacaste”, which is being processed in\nlegislative file n.°22.643.
On\nthe identification of the bill submitted for consultation
The bill was\npresented on the initiative of –among others– deputies Mileydi Alvarado Arias,\nDragos Dolanescu, and Franggi Nicolas. It seeks the creation of the XII canton\nof the province of Guanacaste, with the name Colorado, resulting from the\nsegregation of the fourth district, Colorado, from the canton of Abangares.
On the doubts\nof constitutionality regarding the substance of the bill\n
Challenged\narticles and alleged defects:
The 12 articles\nof the bill are challenged. The consultants point to the following defects: 1)\nthe alleged infringement of the principles of reasonableness and\nproportionality, by attempting to create a canton with less than 1% (one\npercent) of the national population, which is what is provided in the\nAdministrative Territorial Division Law (Ley de División Territorial\nAdministrativa, LDTA); 2)\nthe possible violation of the democratic principle, by violating the procedure\nof an ongoing plebiscitary process; 3) the eventual violation of the\nprinciple of legality, because it contravenes the LDTA and 4) the alleged\nviolation of art. 168 of the Constitution, which requires respecting the LDTA.
Relevant legal regulations
Regarding this Law n.°4366, of 19 August 1969, they state the\nfollowing:
In its art. 1, the National Commission for Administrative\nTerritorial Division (Comisión Nacional de División Territorial Administrativa,\nCNDTA) is created, whose function is to advise the Public Powers (Legislative\nAssembly, Executive Branch, and municipalities), in matters of administrative\nterritorial division. Said commission is composed of the Minister of\nGovernance, the director of the National Geographic Institute (IGN) and that of\nthe National Institute of Statistics and Censuses (INEC), who may be\nrepresented by officials of their respective entities.
Art. 9 of Law n.°4366 refers to the number of inhabitants\nthat the territory of the canton to be created must have. In this regard, said\narticle states:
“Hereinafter, no territory shall be\nerected into a canton that does not have at least one percent of the total\npopulation of the country, nor shall any existing canton be dismembered if,\nafter the dismemberment, it does not have at least a minimum population of the\naforementioned percentage.
By exception, new cantons may be created\nthat do not reach said population, in very remote places with difficult\ncommunication with their administrative centers, provided that the National\nCommission for Administrative Territorial Division so recommends, after\nconducting the relevant studies.”
Art. 13 establishes that the interested parties in the creation\nof a new canton must present to the Legislative Assembly proof that the\nterritory to be constituted conforms to what art. 9 indicates and that the rest\nof the canton to be dismembered also meets those conditions.
They cite, in this regard, what was resolved by the Chamber in\njudgment n.°2002-05801.
Relevant institutional opinions
On the position of the Municipal Council of Abangares, where\nColorado currently belongs
The opinion of that council is that the current canton should\nbe maintained, since its dismemberment would only benefit a reduced number of\nthe population. It refers to the latest published index, since the approximate\npopulation of the district of Colorado is 4,000 inhabitants and violates the\nrequirement of 1% (one percent) of the country's population to form a canton,\nwhereby the legislative procedure that has given continuity to the project\ncontravenes the LDTA\nand, thereby, the principle of legality. The foregoing, without also taking\ninto consideration that the District Municipal Council of Colorado does not\neven have the necessary and urgent infrastructure to be a canton, has deficient\naqueduct and sewerage services, and lacks the necessary institutional framework\n(banks, health, social services, among others).
In another vein,\nthey state that on 7 October 2022, the draft regulation for the plebiscitary\nconsultation of the inhabitants of the Canton of Abangares was published in the\nOfficial Gazette La Gaceta, to define –in accordance with the democratic\nconstitutional principle– whether the inhabitants agreed or not with the\ndivision of their own canton. They indicate that the plebiscite process was\nunderway, with a second publication of the regulation dated 24 October 2022,\nmeaning that the present project under consultation would also be violating the\ndemocratic constitutional principle.
On the opinion\nof the Supreme Electoral Tribunal (TSE)
In accordance\nwith the provisions of art. 97 of the Political Constitution and considering\nthat the establishment of a new administrative unit directly affects the\ncomposition of the canton, the number of inhabitants of each district, and,\nconsequently, the eventual integration of the municipal council and the\ndistrict councils, it was considered that the TSE should be mandatorily\nconsulted, since it has interpreted that electoral matters are acts related to\nsuffrage that not only include those specific to the casting of the vote, but\nall those described in the Constitution itself or in the electoral laws and\nthat are directly or indirectly related to electoral processes, elections or\nconsultations whose origin, direction and oversight has been entrusted to this\nTribunal. In this regard, the TSE in its report n.°TSE-2629-2021 of 4 November\n2021 determined that it did not agree with said project because it does not\nmeet the population requirement, nor is it so far from its administrative\ncenter, all in accordance with the provisions of the administrative territorial\ndivision legislation.
On the opinion\nof the CNDTA
The technical\nbody's response is that it is recommended not to create a new canton, as it\ndoes not meet the minimum population requirement. The population required to be\na canton is 52,133 inhabitants, whereas the population of Costa Rica –according\nto the 2022 indicators– was 5,213,362 inhabitants, and the population of\nColorado does not even reach 5,000 inhabitants.
Conclusion
They note a clear violation of the rule and procedure\nestablished by the LDTA in arts. 9 and 13 and, therefore, of the principle of\nlegality established in art. 11 and of art. 168 of the Constitution, for not\nmeeting the population requirement at the time the bill was processed.
2.-\nIn a resolution issued at 15:04 hrs. on 19 April 2024 by the Presidency of the\nChamber, the consultation on constitutionality was accepted and the\ncorresponding legislative file, or a certified copy thereof, was requested from\nthe Directorate of the Legislative Assembly, through its President.
3.- By resolution of the Presidency of\nthe Chamber at 14:32 hrs. on 25 April 2024, the certified copy of the\nrequested legislative file was accepted and it was assigned to the office of\nMagistrate Garro Vargas to whom it corresponds by rotation. Consequently, the\ndeadline for evacuating the consultation expires on 25 May 2024.
4.-\nThe prescriptions of law have been observed in the processing of the case.
Drafted by Magistrate Garro Vargas; and,
CONSIDERING:
I.- ON OPTIONAL CONSULTATIONS ON CONSTITUTIONALITY
The prior advisory opinion on legislative projects may be\nrequested on a mandatory basis –art. 96, subsection a) of the Constitutional\nJurisdiction Law (Ley de la Jurisdicción Constitucional, LJC)– or on an\noptional basis –subsections b), c) and ch) of the same regulation–. In this\nlatter case, there are three scenarios: in the first, it is the parliamentary\nbody itself that performs it –when formally processed with the signature of at\nleast ten legislators–; in the second, it concerns the consultation on bills\nreferring to the constitutional competence of the Supreme Court of Justice, the\nTSE, or the Comptroller General of the Republic, a consultation that must be\npresented by these same bodies; and, in the third, the consultation may be\nexercised by the Ombudsman when they consider that fundamental rights or\nfreedoms are being infringed.
Art. 98 of the LJC prescribes that in the case of bills\nother than constitutional reforms, the legislative consultation must be filed\nafter the bill has been approved in the first debate and before receiving final\napproval in the second debate. Finally, it should be noted that art. 99 of that\nlaw orders that optional consultations must be formulated in a reasoned\nmemorandum, expressing the challenged aspects of the bill, as well as the\nreasons for which there are doubts or objections regarding its\nconstitutionality.
II.- ON THE ADMISSIBILITY OF THIS OPTIONAL CONSULTATION ON\nCONSTITUTIONALITY
The case under study is an optional legislative consultation\non constitutionality. In accordance with art. 96 of the LJC, this type of\nconsultation must be raised by at least ten legislators, once the bill has been\napproved in the first debate. In this case, twelve deputies signed the\nconsultation. Likewise, the bill being processed under legislative file n.°22.643\nwas approved in the first debate procedure by the Legislative Plenary in\nordinary session n.°126 of 19 February 2024. Thus, having met the stated\nadmissibility requirements, the Chamber proceeds to hear the consultation\nfiled.
Regarding the procedure, it is important to note that in the\ncase of optional legislative consultations on constitutionality –such as the\none now being heard–, and in accordance with the application and integration of\nthe provisions of arts. 99 and 101 of the LJC, this Chamber has indicated that\nits review is limited solely to the specific arguments raised by the consulting\ndeputies in their filing brief, and not to others that could be derived but\nwere not so raised. In advisory opinion n.° 2022-9345 this Chamber warned the\nfollowing:
“In effect, through judgment number\n2001-11643 –reiterated, among others, in judgments numbers 2012-9253, 2017-11714\nand 2021-21204–, the Chamber stated:
‘It must also be remembered that the same\nlaw provides in its article 101 that the Chamber shall evacuate the\nconsultation by issuing an opinion \"on the aspects and grounds consulted\nor on any others it considers relevant from a constitutional point of view\",\nbut the court interprets that \"the aspects and grounds consulted\"\nare those which, according to article 99, question or object to the project, or\nground the doubt that the legislators may have about it. Given, therefore, that\nthe consultation departs from what is legally established, it is not admitted;\nif the court, notwithstanding, were to admit and absolve it, it would place\nitself in a situation outside the scope of its powers.’
This criterion was reiterated and\nconsolidated by the Chamber's jurisprudence, when determining, in the\naforementioned judgment number 2012-9253 that:
‘[T]his is so because «in the case of\noptional legislative consultations, ‘the competence of the Constitutional\nChamber originates from the doubts or constitutional objections raised by the\nlegislators’ –judgment 2001-12459–, so that if such arguments do not exist as\nsuch, or when the consulting deputies themselves state they have no doubts\nabout the constitutionality of the consulted norms or projects, it would be\ninappropriate for the Chamber to issue any opinion, as it would be dealing with\ncases that transcend the Chamber's powers regarding legislative consultations\non constitutionality -judgment 2002-3460–.’
In this sense, it is necessary to\nindicate that this Chamber will only address the allegations raised in a\npunctual manner by the consultants and not other general questions of\nconstitutionality of the bill in question, in accordance with the\nprovisions of article 99 of the law governing this jurisdiction, for which\nreason any pronouncement on procedural and substantive defects not alleged in\ntime by the consulting deputies is omitted” (The\nhighlighting does not correspond to the original).
In the same vein as set forth, this Chamber will rule\nexclusively on the doubts of constitutionality duly grounded by the legislator\npromoters of this consultative process.
III.- PRELIMINARY DELIMITATION OF THE OBJECT OF THIS\nCONSULTATION
In line with the foregoing and, in relation to the specific\ncase, it must be emphasized that this Court is not required to make any\nconsideration on the initial section of the optional consultation on\nconstitutionality in which the legislators recount the political timeliness and\nsuitability of what they call the “ultra-fragmentation” of the administrative\nterritorial division of Costa Rica and set out their vision of the State, and\nadvocate for a regionalization, which in their view would be more efficient in\npursuit of a “decentralizing political process”. In effect, it does not concern\nthis Chamber to make a political assessment of such statements, even more so\nwhen they are not directed at attacking any specific aspect of the bill\nsubmitted for consultation. This Court has insisted in its jurisprudence that\nit is not its place to calibrate aspects of timeliness and suitability of bills\nand, specifically, in advisory opinion n.°2021-000026 stated the following:
“The\nfirst point that must be clarified is that the Constitutional Chamber, in\nmatters of optional consultations, according to its reiterated jurisprudence,\nonly rules on the issues consulted, not on the entirety of the bill, such that\nit cannot be interpreted that beyond that scope, there exists a kind of\nendorsement of the consulted bill with respect to that on which there is no\nruling. In effect, the Chamber does not rule on aspects of timeliness and\nsuitability of bills, a matter reserved for the legislator, nor does it rule on\nextremes not consulted. In such a way that there may well be conflicts\nwith the Constitution in a given bill, on which no consultation was made and\nthere is no ruling by this Court through the prior consultation on\nconstitutionality. Naturally, for those aspects, should they exist, the avenue\nof subsequent judicial review remains open, which is the action of\nunconstitutionality, to guarantee the supremacy of the Political Constitution.\n(in that sense see judgments 2001-11643, 2001-12459, 2012-9253, 2019-9220,\namong others)”. (The highlighting corresponds to\nthe original).
It must also be remembered that the power to create new\ncantons was granted by the constituent power to the Legislative Assembly\n–subject to certain rules derived from the Political Constitution itself and\nothers self-imposed in ordinary legislation–. For that very reason, this\nChamber is not called upon to make any reflection on what the model of the\nState should be that, respectful of the constitutional design, is most suitable\nor efficient. It is true that in repeated resolutions the Chamber has\nhighlighted “the importance that the original constituent power has given to\nterritorial integrity”, which is reflected in the text of art. 168 of the\nPolitical Constitution itself (see judgments n.°1995-2009, n.°1998-7294 and\nn.°2002-5801). However, for purposes of ruling on the exercise of that\npower by the Legislative Assembly, the task of this Court is limited to\nverifying compliance with the constitutional and legal requirements –understood\nas a mandatory parameter self-imposed by the Legislative Assembly itself for\nsuch exercise–, but not to make an assessment of timeliness and suitability on\nthe political decision it entails. For this reason, in resolution n.°2023-06227,\nit was warned that it is the Legislative Assembly that corresponds, by\nconstitutional mandate, to decide on the best administrative territorial\ndivision of the country. Thus, it was said that the Constitutional Chamber\n“has no competence whatsoever to rule on the suitability or timeliness of\nhaving created the district of Birrisito”.
\n\nThen, echoing its own precedents and, as relevant, the following considerations were made:\n\n\"**Based on that norm, this Chamber has held that the procedure for creating provinces and cantons is a matter reserved to law; that is, the exclusive competence of the Legislative Assembly**: a) regarding the creation of provinces, it is indicated that it must be processed through the same procedure for partial reform of the Political Constitution, in addition to convening a provincial plebiscite (see in this regard Judgment No. 1994-4091 of 15:12 hours on 9 August 1994); and b) regarding the creation of cantons, the Political Constitution requires that the bill establishing a new canton must be approved by a qualified majority; namely, a vote of two-thirds of the members of the Assembly (see Judgment No. 1995-2009 of 10:30 hours on 21 April 1995). (...)\n\nA) Territorial division in Costa Rica. This Court has stated, in Judgment No. 2002-005801 of 17:30 hours on 12 June 2002, that the Costa Rican State, despite being unitary and its territories not enjoying true political autonomy from the central power, is indeed divided into spatial circumscriptions of various degrees such as provinces, cantons, districts, villages, among others; a distribution that has been designated by law as the Administrative Territorial Division through a law with that name, No. 4366 of 19 August 1969. This Chamber, through Judgment No. 1994-4091 of 15:12 hours on 9 August 1994, established that:\n\n \"(...) **From a political standpoint, the discussion on the best administrative territorial division is a matter for the Political Branches of the State, particularly the Legislative Assembly, since it is not the function of this Chamber to decide on the advisability or not of varying the distribution of the national territory for the better allocation of public resources, for the correct administration of communal interests, nor for electoral or administrative planning purposes**, etc... .\n\n (...) ...especially since in our case, the division of our geography into provinces, cantons, districts, neighborhoods and hamlets, as long as Costa Rica remains the absolutely unitary State that it is, cannot have a political character but only an administrative one, without prejudice to the fact that, when it comes to determining territorial jurisdiction, as entities called to fulfill a generality of purposes and encompass a generality of people—the citizens (munícipes)—certain original self-governing powers must be recognized, although never in the sense of true political self-determination. Therefore, what is at stake here is not any problem of political self-determination nor, consequently, of original competences other than the administrative ones derived from the national legal order.\"\n\nFrom Judgment No. 1994-4091 cited, two important elements to consider emerge: a) **that for this Court, it is the Legislative Assembly that, by constitutional mandate, is responsible for deciding on the best administrative territorial division of the country**; and b) that the division of the territory is administrative and, therefore, does not correspond to an original right of the communities to political self-determination (see in that regard Judgment No. 1995-2009 of 10:30 hours on 21 April 1995).\n\nBased on the foregoing, it is clear that, in the present matter, **the Chamber will not rule on the advisability or not of creating the district of Birrisito, since, as has already been said in the past, the discussion on the best administrative territorial division of the country is a matter for the Political Branches of the State, particularly the Legislative Assembly, in exercise of the powers derived from Articles 105 and 121, subsection 1), of the Political Constitution**. (...)\n\nVI.- Continuation. From the preceding items, several conclusions can be drawn to demonstrate that the plaintiff is not correct regarding this extreme:\n\na) Firstly, as this Court has already pointed out, **the discussion on the best administrative territorial division of Costa Rica is a matter for the Political Branches of the State, particularly the Legislative Assembly**. Article 168 of the Constitution is very clear in stating that this Branch can create provinces and cantons. And, according to the theory of implied powers, it is also admissible that the Legislative Assembly can create districts, since the delegation made in Article 14 of Law No. 4366 is neither permanent nor exclusive, such that the Legislative Assembly could create districts or modify or repeal what is established in said norm.\n\nb) It is not the function of this Chamber to resolve on the advisability or not of varying the distribution of the national territory for the better allocation of public resources, for the correct administration of communal interests, nor for electoral or administrative planning purposes, **so that this Court has no competence whatsoever to pronounce on the advisability or opportunity of having created the district of Birrisito**. (...)\" (The emphasis does not correspond to the original).\n\nIn the same vein, it is necessary to anticipate that this Chamber will not rule—in general terms—on the advisability or not of the creation of the canton of Colorado in the province of Guanacaste. And, as has been said, it will also not make any pronouncement on the initial reflections of the consulting legislators.\n\n**IV.- PURPOSE OF THE CONSULTATION**\n\nOnce the foregoing is clarified, it should be noted that the doubts of constitutionality regarding the bill \"Creation of the Canton of Colorado, twelfth canton of the province of Guanacaste,\" being processed in legislative file **No. 22,643**, can be grouped into two grievances that will be developed in independent sections.\n\nIn the first place, the consultants consider that the bill violates the principles of reasonableness, proportionality, and legality, as well as Article 168 of the Political Constitution, since the legislative procedure for the creation of a new canton was initiated contrary to what is provided in the Administrative Territorial Division Law (Ley de División Territorial Administrativa, LDTA) No. 4366, in the sense that \"no territory that does not have at least one percent of the country's total population shall be erected as a canton\" and it also does not meet the exceptional condition of being \"in very remote places and of difficult communication with their administrative centers,\" as also highlighted by the TSE. The legislators also cite the reports added to the legislative file rendered by the Municipal Council of Abangares and the CNDTA to conclude that, in this specific case, there has been a failure to comply with the legal provisions that must be observed prior to the approval of the new canton. They assert that it is unreasonable and disproportionate to establish a new canton with less than 1% (one percent) of the national population, even more so by disregarding the disagreement of the affected municipality.\n\nIn the alternative, they state that the democratic constitutional principle is being harmed by violating the process of an \"ongoing plebiscitary procedure\" and by not heeding the oppositions of the Municipality of Abangares.\n\n**V.- THE PROCESSING OF FILE NUMBER 22,643 IN THE LEGISLATIVE ASSEMBLY**. The \"Creation of the Canton of Colorado, twelfth canton of the province of Guanacaste\" bill, being processed in legislative file **No. 22,643**, has followed the following *iter*:\n\n1. The bill is an initiative of several legislators and was presented to the Secretariat of the Directorate of the Legislative Assembly on **12 August 2021** (see folios 01-20 of the copy of the legislative file, volume I).\n2. The Presidency of the Legislative Assembly ordered the file to be assigned to the Ordinary Permanent Committee on Legal Affairs for the corresponding opinion (folio 21 of the copy of the legislative file, volume I).\n3. The bill was published in the official gazette **La Gaceta No. 169 of 2 September 2021** (see referral to the National Press on folio 22 and the cover of the copy of the legislative file, volume I).\n4. On **14 September 2021**, a copy of agreement No. CMA-0171-2021 of the Municipal Council of Abangares was delivered to the reporting committee, in which they communicate their opposition to bill No. 22643. This was subsequently reiterated by said council in response to the hearing granted (see folios 42-45 and 202-203 of the copy of the legislative file, volume I).\n5. In ordinary session No. 18 of **05 October 2021**, the Ordinary Permanent Committee on Legal Affairs approved a motion for **the bill to be consulted with the following institutions**: Municipality of Abangares, Municipal Intendancy of Colorado, TSE, CNDTA, National Nomenclature Commission, National Institute of Housing and Urbanism (INVU), Planning Office of the Ministry of National Planning, National Geographic Institute (IGN), INEC, Ministry of Environment and Energy, and the Integral Development Association of Cabeceras de Cañas (see folios 54-66 of the copy of the legislative file where the approval of the motion is recorded and folios 100-149, 151-173 *ibid.*, volume I).\n6. Through official letter No. INT-0270-2021 of **18 October 2021**, the Municipal District Council of Colorado delivered to the Committee on Legal Affairs of the Legislative Assembly \"the agreements of manifestation of support for the project with file number 22,643\" from the following communal institutions and organizations: Health Board of Colorado, Health Area of Colorado; Neighborhood Association Junta de Vecinos Higuerillas de Colorado; Integral Development Association Monte Potrero, Colorado; Integral Development Association of Colorado; Integral Development Association of San Joaquín, Colorado; Rural Water Board (Asada) of Monte Potrero, Colorado; Rural Water Board (ASADA) ENCELOMAVI San Buenaventura, Colorado; Administrative Board of the Liceo de Colorado; Education Board of the School of San Buenaventura, Colorado; Education Board of the School of San Joaquín, Colorado; Association of Fishermen and Rural Tourism of San Buenaventura, Colorado; Association Comité Local de Pescadores de Colorado; Committee of the Catholic Church of San Buenaventura, Colorado; Federation of Municipal District Councils of Costa Rica; Municipal District Council of Tucurrique; Municipal District Council of Lepanto; Municipality of Talamanca; Municipality of Los Chiles and Municipality of Garabito (see folios 67-86 of the copy of the legislative file, volume I).\n7. Through official letter No. PE-AL-276-2021 of **29 October 2021**, the institutional opinion of the INVU was sent to the Legislative Assembly (see folios 149-150 of the copy of the legislative file, volume I).\n8. By means of official letter No. TSE-2629-2021 of **4 November 2021**, the Presiding Magistrate of the TSE submitted his considerations regarding the bill (see folios 174-181 of the copy of the legislative file, volume I).\n9. In official letter No. DGL-0673-2021 of **9 November 2021**, the National Registry presented its institutional opinion regarding the bill and provided the opinion of the IGN to readjust Article 3 of the bill and, therefore, redefine the cantonal boundaries (see folios 185-187 of the copy of the legislative file, volume I).\n10. By official letter No. MIDEPLAN-DM-OF-1040-2021 of **9 November 2021**, the Minister of National Planning and Economic Policy made technical observations and recommendations regarding the approval of the bill (see folios 189-195 of the copy of the legislative file, volume I).\n11. On **11 November 2021**, the Municipal District Council of Colorado submitted to the Committee on Legal Affairs a series of agreements manifesting support for the bill, coming from the municipal district councils of Cervantes and Cóbano, as well as from the municipalities of Nicoya, Siquirres, Atenas, Guatuso, San Pablo de Heredia, Tibás, Santa Ana, Quepos and Garabito (folios 87-99 and 197-203 of the copy of the legislative file, volume I).\n12. By means of official letter No. DIG-TOT-0785-2021 of **10 December 2021**, the agreement signed by the National Nomenclature Commission of the IGN of the National Registry was submitted to the legislative file, in which it was decided to approve the name \"Colorado\" for the twelfth canton of the province of Guanacaste and more time was requested to examine Article 4 of the bill (see folios 204-206 of the copy of the legislative file, volume I).\n13. Through official letter No. MGP-CTDT-006-2021 of **13 December 2021**, the agreement adopted by the Technical Committee for Administrative Territorial Division in ordinary session No. 04-2021 held on **11 November 2021** was attached to the file, through which it concluded that: *\"the territory in question does not comply with Article 9 of Law 4366. After analyzing the distance with respect to the administrative center, the Committee recommends that **the territory does not qualify for the exception of the article in mention**\"* (see folios 213-214 of the copy of the legislative file, volume I).\n14. On **2 February 2022**, the Municipal District Council of Colorado provided a copy of agreement No. CMDC-0035-2022 in which they pronounced against the statements made by the authorities of the Municipality of Abangares (see folios 234-240 of the copy of the legislative file, volume I).\n15. In ordinary session No. 48 of the Permanent Committee on Legal Affairs on **5 April 2022**, a substitute text motion was approved and a favorable opinion was issued unanimously by the legislators present at the session (see folios 252-263 of the copy of the legislative file, volume I and folios 293-303 of volume II).\n16. Through official letter DIG-TOT-0251-2022 of **6 April 2022**, the coordinator of the National Nomenclature Commission of the National Registry attached to the legislative file the agreement reached by the Commission in ordinary session No. 003-2022 held on 31 March 2022, in which it was agreed to approve the names of the towns El Crucero, Enramadas, Los Pajarillos, El Platanar, and El Coyol, and to not approve the names La Palma, Lajas, San Antonio, and Santa Lucía (see folios 264-266 of the copy of the legislative file, volume I).\n17. On **22 April 2022**, the Ordinary Permanent Committee on Legal Affairs sent to the Secretariat of the Directorate the affirmative majority opinion corresponding to legislative file No. 22,643 (see folios 267-291 of the copy of the legislative file, volume I).\n18. Through official letter No. AL-DEST-IJU-211-2022 of **23 June 2022**, the acting director (*a.i.*) of the Department of Technical Services of the Legislative Assembly sent the legal report on this bill (see folios 303-400 of the copy of the legislative file, volume II).\n19. In extraordinary session No. 71 of the Legislative Plenary on **26 September 2022**, a motion of order was presented and approved to hear file 22,643. Subsequently, the discussion on the merits began in the first debate procedure, a substantive motion was presented, and the file was transferred to the reporting committee (see folios 409-419 of the copy of the legislative file, volume II).\n20. On **11 October 2022**, the Ordinary Permanent Committee on Legal Affairs sent to the Secretariat of the Directorate the first report on motions via Article 137 of the Rules of the Legislative Assembly (RAL) (folios 420-447 of the copy of the legislative file, volume II).\n21. In ordinary session No. 88 of **27 October 2022**, the discussion in the first debate continued and, upon the presentation of a substantive motion, the referral to the reporting committee was ordered (see folios 448-463 of the copy of the legislative file, volume II).\n\n22. On **16 February 2023**, the Committee submitted the second report on motions (see folios 464-482 of the copy of the legislative file, volume II).\n\n23. In regular session No. 126 of **19 February 2024**, the Legislative Plenary considered the second report on motions and, as there were no motions for reiteration, the bill was considered and approved in first debate. This was by the affirmative vote of 37 legislators (see folios 491-510 of the copy of the legislative file, volume II).\n\n**VI.- ON THE STATEMENT OF MOTIVES FOR THE BILL**.\n\nAccording to the analysis of the bill, it was submitted to the Secretariat of the Board of Directors on **12 August 2021**, and the initiative was signed by the following legislators: Mileidy Alvarado Arias, Franggi Nicolás Solano, Dragos Dolanescu Valenciano, Pablo Heriberto Abarca Mora, José María Villalta Flórez-Estrada, Jorge Luis Fonseca Fonseca, Eduardo Newton Cruickshank Smith, Ivonne Acuña Cabrera, Melvin Ángel Núñez Piña, Carmen Irene Chan Mora, María Inés Solís Quirós, Laura Guido Pérez, Nidia Lorena Céspedes Cisneros, María Vita Monge Granados, Carlos Ricardo Benavides Jiménez, Wálter Muñoz Céspedes, Xiomara Priscilla Rodríguez Hernández, Otto Roberto Vargas Víquez, Sylvia Patricia Villegas Álvarez, Welmer Ramos González, Marolin Raquel Azofeifa Trejos, and Carlos Luis Avendaño Calvo.\n\nIn the statement of motives for the bill, the considerations for promoting the creation of the canton of Colorado, independent from the canton of Abangares, are recorded. In this regard, the following was stated:\n\n*“According to historical data, the town of Colorado has existed since before 1894. Traditionally, this town has been dedicated to agricultural, livestock, fishing, limestone extraction, and salt production activities. This last activity has been declining in recent years to give way to aquaculture in shrimp farming.*\n\n*Colorado has existed as a district since 4 June 1915, the date on which the canton of Abangares was established under Law No. 13, as canton VII of Guanacaste, designating four districts, namely, Las Juntas (head town), La Sierra, San Juan, and the 4th district Colorado. It is important to note that the residents of Colorado supported the creation of the new canton, given the state of abandonment in which the residents of Abangares found themselves.*\n\n*Administratively, Colorado achieved a certain degree of autonomy, in relation to its parent canton, with the creation of the District Municipal Council (Concejo Municipal del distrito) which was created during the Trejos Fernández administration, by Executive Decree No. 23 of 22 April 1970, published in La Gaceta on 24 April of that same year. It should be noted that the creation of the District Municipal Council of Colorado had the positive and unanimous vote of the Municipal Council of Abangares.*\n\n*From then until now, the affairs of the district have been managed by representatives of the community, who have been concerned with developing the necessary means to provide adequate satisfaction to the needs of the inhabitants.*\n\n*This way of addressing needs has allowed the inhabitants of Colorado to develop complete independence from the rest of the canton of Abangares, with which there has existed only a strictly formal sense of belonging. Moreover, the cultural, economic, and above all sociological differences between the two regions are notorious, with the population of Colorado characterized by maintaining the socio-cultural configuration characteristic of the Guanacastecan peasantry, while the rest of the canton shows deep traits of immigration of nationals and foreigners, who came mainly to exploit mining activity.*\n\n*Regarding resource management, the District Municipal Council of Colorado began in 1971 with a budget that amounted to one hundred twenty-one thousand sixty-seven colones (¢121,067.00). For the year 2019, the budget submitted for approval was set at one billion one hundred forty-seven million two hundred eighty-nine thousand five hundred thirty-nine colones and eighteen céntimos (¢1,147,289,539.18).*\n*This shows that, over the last forty years, the inhabitants of the district of Colorado have developed within their own reality and have generated the economic contributions necessary for the creation of the infrastructure to achieve the well-being of the residents.*\n\n*The last three decades, the development of the district of Colorado has been impacted by the establishment of two important national industries, Cemex and Coonaprosal R.L.*\n\n*In 1973, Cementos del Pacífico (CEMPASA) was founded, currently CEMEX, a company that took seven years to start operations and which is currently an important source of employment and wealth in the area.*\n\n*27 April 1974 is a memorable date for the development of the district of Colorado, given that 48 salt producers from the area of Colorado and Jicaral founded the Cooperativa Nacional de Productores de Sal R.L. (COONAPROSAL, R.L.), registered and approved on 15 November 1974 by the Ministry of Labour.*\n\n*PUBLIC INFRASTRUCTURE:*\n\n*By 1985, 90% of the district was electrified, and in 1987 the first manual telephone exchange was installed. The aqueduct was managed by the District Municipal Council until May 1993, the year in which it was transferred to Acueductos y Alcantarillados (AyA).*\n\n*After many years of constant struggle, it managed to obtain its own high school in 1995, established under the model school modality, which has come to provide young people with greater study opportunities.*\n\n*TERRITORIAL EXTENSION:*\n\n*Colorado has a territorial extension of 195.77 km2, distributed across thirteen hamlets: Raizal, Higuerillas, Concepción, San Joaquín, Pueblo Nuevo, Santa Lucia, El Coyol, Barbudal, Peñas Blancas, San Buenaventura, La Palma, Cementos del Pacífico, Enramadas, and the head town which is located in Colorado.*\n\n*(…)*\n\n*Local roads and distances. Length of roads and their importance in socio-economic development. In relation to the type of road surface, roads made of granular material (ballast) stand out in the greatest quantity, extending for a total of 70.68 km, these being the main internal connectivity routes of the district, since the majority are used for the transit of products linked to livestock and agricultural activities; other roads that stand out are dirt roads with 32.96 km, which serve the function of providing accessibility to farms.*\n\n*The main town of Colorado is located at a distance of 27 kilometres or more from the cities or head towns of the nearest cantons, including the head town of the canton to which it belongs.*\n\n*Colorado is located 17 km from the La Amistad bridge, 30 km from Las Juntas (head town of the canton), 47 km from Cañas, and 58 km from Nicoya. Much of the road infrastructure is paved, with some stretches in fair condition.*\n\n*As for local roads, the district of Colorado has internal ballasted roads in good condition that allow communication among nine communities: San Buenaventura, Peñas Blancas, Concepción, Pueblo Nuevo, San Joaquín, Raizal, Higuerilla, La Palma, Barbudal, Santa Lucia, and Enramadas.*\n\n*SERVICES:*\n\n*The district of Colorado has the following services and public infrastructure:*\n\n- *A medical clinic of the Caja Costarricense de Seguro Social, which provides service 8 hours during the day and has a current budget of ¢1,237,000,000.00.*\n- *A Red Cross post, which provides service twenty-four hours a day, with three ambulances.*\n- *Nine primary schools, one per community, namely: Raizal, Higuerillas, Concepción, San Joaquín, Pueblo Nuevo, Barbudal, Peñas Blancas, San Buenaventura, Cementos del Pacífico (which is a private education service), and Colorado.*\n- *Two high schools, located in the center of Colorado (Liceo de Colorado with a speciality in Aula Billingüe and the Vocational Programme of the National Plan).*\n\nA CINDEA adult education school with a specialty in Technical careers and Educational Satellites in La Palma, Colorado, and San Buenaventura.\n\n- Two preschools (CEN CINAI): one in Colorado and another in San Buenaventura.\n\n- A Rural Assistance Guard post, located in Colorado.\n\n- A municipal building (District Municipal Council), located in Colorado.\n\n- An automatic telephone exchange.\n\n- Six Catholic churches, one per community (except in Raizal, Cempasa, and Peñas Blancas), five non-Catholic churches: one in Colorado, Concepción, Santa Lucia, San Joaquín, and one in Peñas Blancas.\n\n- Six community halls, one per community, except in Raizal, Peñas Blancas, and Cempasa.\n\n- Seven soccer fields, one per community.\n\n- Four basketball courts, located in Cempasa, Pueblo Nuevo, San Buenaventura, and Colorado.\n\n- Two cemeteries: one in Colorado and one in San Buenaventura.\n\n- Garbage collection service provided by the Municipal Council in the communities of Santa Lucia, San Buenaventura, Peñas Blancas, Pueblo Nuevo, Concepción, Enrramadas, San Joaquín, La Palma, Raizal, and Colorado Centro, which is a Dirección Tres school that has the educational services of Special Support: Learning Problems, Emotional and Behavioral Problems, Speech Therapy, Educational Support, Plastic Arts, Musical Arts, Languages, among others; the rest of the communities manage their own waste (sic).\n\n- The community of Colorado centro has restaurants, small grocery stores (pulperías), supermarkets, mini-supers, bookstores, bazaars, butcher shops, bars, hardware stores, etc.\n\nLOCAL ORGANIZATION:\n\nLocally, Colorado is a town with the following communal organization:\n\n· Solidarity Associations: two\n· Fishermen's Associations: two\n· Sports Committees: one\n· Community Defense Committees: one\n· Cooperatives: five\n· ASOMIPE: one\n· Church Committees: six\n· Parish Economic Council: one\n· ASADAS Committees: five\n· Student Government: ten\n· Neighborhood Boards: two\n\nIt is worth noting that in 1995, the Cantonal Creation Project for Colorado had been presented before the Legislative Assembly under expediente number N.º 11728, with a start date of June 27, 1993, published in the newspaper La Gaceta N.º 134 on July 15, 1993; the proponent of the project was the Abangares Deputy Alfredo Cruz Álvarez of the Social Christian Unity Party, representative of the Province of Guanacaste. Furthermore, a Legal Report of technical services to said expediente exists. It was approved in first debate in plenary session N.°146 on February 28, 1995, in the extraordinary period of the first legislature, from May 1, 1994, to April 30, 1994.\n\nConsidering that, due to the characteristics that the Colorado district possesses, despite not complying with what is indicated in Law Nº 4366, in Article 9 \"with the percentage of necessary inhabitants…\", the Colorado district currently has 5,018 inhabitants, according to source INEC (2018). If we verify data on the population of some existing cantons in the country, we can mention that many of them do not meet that requirement and were created as cantons; furthermore, if we compare budgets, we can also observe a similarity.\n\nColorado meets the conditions it demonstrates regarding distance from the main populated centers, including the head city of the canton to which it belongs, the possession of infrastructure and basic services, experience in managing municipal resources, the existence of important industries and productive developments, and, above all, the manifest interest of its residents in obtaining their administrative independence. These factors lead us to request the creation of Colorado as a canton by way of exception, as permitted by Article 15 of the Law of Administrative Territorial Division, to be elected as the twelfth canton of the province of Guanacaste.\n\nEven though it currently forms part of the Canton of Abangares, the existence of an independent administration from that one has allowed for a fairly sound administrative and budgetary structure. This is because we have not applied the collective bargaining agreement that covers the officials of the municipality, nor have we generated benefits in favor of the district's officials based on collective bargaining agreements. The foregoing demonstrates one of the major differences between the Municipality of Abangares and the District Municipal Council of Colorado.\n\nThe District of Colorado has been developing significant public works; we can cite the purchase of a 10,000-square-meter plot of land for the construction of the Colorado Clinic, which is in the process of being transferred to the CCSS so that it may allocate the budgetary content for its proper construction.\n\nA 340-square-meter building was recently constructed, which can serve as a cantonal delegation for the Public Force (Fuerza Pública), with an investment of 130 million colones.\n\nA project of nearly one billion colones was incorporated with INDER to improve the Conchal levee, which will impact the economy of the district and the island of Chira, as it will allow for the improvement of existing economic activities (fishing and mollusk extraction) and the creation of new economic activities, such as rural tourism in the Gulf of Nicoya.\n\nA Technical Training Center will be built in central Colorado, directed by INA, on a property of the Municipal Council of Colorado of 9 hectares, acquired in 2008 for nearly 100 million colones. The infrastructure will consist of 2,500 square meters of construction, at a cost of 2 billion colones. All these investments are made with tax resources collected by the District Municipal Council of Colorado, through Law 5420, the 1% export tax on the Cement produced at the Colorado Plant. This technical-modality educational center will attract many students from the entire province of Guanacaste and part of the province of Puntarenas.\n\nIt is worth highlighting that a percentage of Law 5420 is invested in educational infrastructure in all the district's educational centers, with an approximate annual budget of 30 million colones for said centers, in addition to economic contributions for school cafeterias and CEN CINAI in the district, plus the transfers of resources from the real estate law to the Schools of an approximate annual amount of 10 million colones; this makes us an institution different from many.\n\nBeing a canton, Colorado will directly receive the resources coming from LEY 9156 Ley Reguladora de los Derechos de Salida del Territorio Nacional, of July 25, 2013, which to date this district has not received anything from the Municipality of Abangares, which should also allocate a percentage for the construction and development of tourism infrastructure in our communities that are so potentially touristic and the recovery of the district's cultural heritage.\n\nFurthermore, it should be noted that with the reform of Law 8114 and Law 9329 Ley Especial para la Transferencia de Competencias: Atención Plena y Exclusiva de la Red Vial Cantonal of November 17, 2015, starting in 2016 the Concejo Municipal de Distrito de Colorado administers and disposes the resources of this law, for the attention of the road network of the district of Colorado, receiving annually the sum of approximately 350 million colones. If converted into a canton, it would receive the same income because the existing road network would not vary; the only difference is that the deposit would be made by the Ministry of Finance directly to the accounts of the new canton.\n\nCurrently, the Concejo Municipal de Colorado has sufficient income for its self-financing (…)\n\nWe can observe that the district of Colorado has a budget that has been growing, but the lack of budgetary autonomy has caused some weakness in planning, therefore, in budget execution, since we depend on the actions of the parent municipality, in budget modifications, extraordinary budgets, which we must wait for them to carry out so that the CMD incorporates the district's resources.\n\nThe entry of institutions that come to improve services to the citizenry is necessary, such as; health, public transportation, financial institutions, and public institution offices essential for the development of a canton.\n\nHaving full autonomy to create urban planning policies would improve territorial planning and we would have greater development.\n\nBeing a canton, Colorado will receive greater economic resources directly to invest in the territory, like other national taxes that the Municipalities receive.” (The highlighting does not correspond to the original).\n\n**VII.- A FIRST APPROACH TO THE SPECIFIC CASE**\n\nThe consulting legislators question that the processing of the bill did not comply with the provisions of Article 9 of the LDTA, No. 4366, which provides the following:\n\n“Art. 9.- Henceforth, no territory shall be erected into a canton that does not have at least one percent of the total population of the country, nor shall any existing canton be dismembered, if after the dismemberment it is not left with at least a minimum population of the percentage expressed above.\n\nBy exception, new cantons may be created that do not reach said population, in places that are very remote and of difficult communication with their administrative centers, provided that the Comisión Nacional de División Territorial recommends it, after the corresponding studies.” (The highlighting does not correspond to the original).\n\nThat is, they consider that the project is unreasonable because the population percentage of the first paragraph is not met and, by obviating said requirement, the principle of legality is violated.\n\nHowever, they omitted to point out that the statement of motives expressly stated that the bill initiative is not based on the provisions of Article 9 of the aforementioned law regarding population data. In fact, it is acknowledged that the district of Colorado does not meet “the required percentage of inhabitants.” Thus, the bill is motivated by invoking the exceptional possibility provided for in that same Article 9 (second paragraph), which must be applied jointly with the provisions of Article 15 of the law, which states the following:\n\n“Art. 15.- Although the population factor is basic for the creation of provinces, cantons, and districts, the Comisión Nacional de División Administrativa may consider other geographical, economic, and sociological factors for the formation of the territorial division. (…)”.\n\nIn this regard, the following arguments were set forth in the statement of motives of the bill accepted for processing by the legislators:\n\n“Colorado meets the conditions it demonstrates regarding remoteness from the main populated centers, including the head city of the canton to which it belongs, the possession of infrastructure and basic services, the experience in administering municipal resources, the existence of important industries and productive developments, and above all the manifest interest of its inhabitants in obtaining their administrative independence, which leads us to request the creation of Colorado as a canton by way of exception, as permitted by Article 15 of the Ley de la División Territorial Administrativa to be elected as the twelfth canton of the province of Guanacaste.”\n\nConsequently, this consultation does not focus on verifying whether the project meets or does not meet the requirement established in the law regarding the population percentage, since the initiative itself acknowledged from the outset that this was not met, but rather on reviewing whether the legislators adhered to the conditions for exempting that requirement, provided for in the legislation that regulates the creation of new cantons (Articles 9, second paragraph, and 15 of LDTA).\n\nTo reach a duly supported conclusion, this Chamber will review the technical criteria contained in the legislative file, the provisions that regulate the creation of cantonates, and the precedents of this Chamber and the Procuraduría General de la República. Finally, an analysis will be made of the most relevant regulations for the specific case submitted for consultation.\n\n**VIII.- ON THE CRITERIA SUBMITTED TO THE PARLIAMENTARY PROCEEDING**\n\nIn referring to the legislative *iter*, this Chamber verified that several institutional criteria, detailed below, were submitted to the Comisión Permanente Ordinaria de Asuntos Jurídicos of the Asamblea Legislativa.\n\nThrough official letter PE-AL-276-2021 of **October 29, 2021**, the institutional criteria of the INVU was sent to the Asamblea Legislativa, from which the following conclusions emerge:\n\n“It indicates the basis of the project that the district of Colorado has a population of 5,091 inhabitants, an amount that does not meet the requirement established in Article 9 of Law No. 4366 Ley sobre División Territorial Administrativa, which would be true, and the exception regarding the population that the same article establishes is based on places that are very remote and of difficult communication with their administrative centers, aspects that at present are not met, since the road infrastructure is in good condition and there is bus service to different places, including Las Juntas de Abangares.\n\n(…)\n\nIt is clear that the creation of the canton, districts, and the incorporation of settlements aims at a better administrative and budgetary organization, and the district of Colorado can assume the transformation; however, the bill must be adjusted to the principle of legality, as well as the decision taken by the Asamblea Legislativa” (The highlighting does not correspond to the original).\n\nAs can be seen, the authorities of the INVU indicated that, for the purposes of approving the new canton, the population requirements are not met, but neither is the exception regarding distance.\n\nSpecifically regarding this aspect, the TSE opposed the bill, in the following terms:\n\n“The promoting legislators in the statement of motives indicate that the creation of the new circumscription fails to comply with the legal requirement of having at least 1% of the country's population (page 7 of the project), a requirement which, according to what is stated, can be obviated because other cantons have fewer than that number of inhabitants and because, as detailed, the area is located far from the head city of the canton to which it currently belongs; it is also indicated that the tendency of goods and services (sic) of a considerable community organization and sufficient economic resources justify that the law can be approved disregarding the cited minimum population amount.\n\nThese reasonings, although fully worthy of consideration, do not have sufficient entity to disregard the fact that there is a valid law that requires accrediting a minimum population amount, a rule which, if not observed, would lead to an infringement of the principle of singular non-derogability of norms (…) Therefore, by affirming the project that the canton sought to be created does not meet one of the requirements for doing so and that it is not evident that the procedure provided for exempting such obligation has been followed (there is no record of a favorable opinion from the Comisión Nacional de División Territorial), it reveals that the initiative has a defect that must be corrected.” (The highlighting does not correspond to the original. See folios 174-181 of the copy of the legislative file, volume I).\n\nFurthermore, through official letter No. MIDEPLAN-DM-OF-1040-2021 of **November 9, 2021**, the Minister of National Planning and Economic Policy set forth some technical observations, as follows:\n\n“The initiative is justified on grounds such as the remoteness of the district, the possession of infrastructure and basic services, the experience in administering municipal resources, the existence of important industries and productive developments, and above all the manifest interest of its inhabitants in obtaining their administrative independence; it is also important to mention that the statement of motives indicates that the residents of Colorado gave their support to the creation of the new canton, given the state of abandonment in which the residents of Abangares found themselves.\n\nFrom then until the present date, the affairs of the district have been administered by representatives of the community, who have been concerned with developing the necessary means to provide adequate satisfaction to the needs of the inhabitants. This way of attending to needs has allowed the inhabitants of Colorado to develop absolute independence with respect to the rest of the canton of Abangares, with which there has existed only a strictly formal sense of belonging. Moreover, the cultural, economic, and especially sociological differences between the two regions are notorious, with the population of Colorado characterized by maintaining the sociocultural configuration characteristic of the Guanacaste peasantry, while the rest of the canton shows traits of immigration of nationals and foreigners, come mainly to exploit mining activity.” (See folios 189-195 of the copy of the legislative file, volume I).\n\nThe legislative file records that a formal hearing was granted to the President of the CDTA (see folio 102 of the copy of the legislative file); however, its technical body, namely, the Comité Técnico de la División Territorial Administrativo (see Decreto Ejecutivo No. 41236-MGP of June 15, 2018), rendered a report. Said body adopted Agreement No. 001-04-2021 in which it concluded the following:\n\n“In response to the consultation on the bill, based on its analysis, the following recommendations will be made, first, the territory in question does not comply with Article 9 of Law 4366. After analyzing the distance with respect to the administrative center, the Committee recommends that the territory does not qualify for the exception of the article in mention. Furthermore, it is recommended that the situation be analyzed that Colorado de Abangares already has a Concejo Municipal de Distrito that administers the territory. In the event that the bill moves forward, it is requested that the boundaries already stipulated by the Instituto Geográfico Nacional, which are the official ones, be respected.” (The highlighting does not correspond to the original. See folio 214 of the copy of the legislative file, volume I).\n\nIt is observed that the Commission's opinion was negative, since, according to its technical analysis, the site does not meet the conditions set forth in Article 9 of the law and it indicated that the territory does not qualify to apply the exceptionality provided for in that same norm regarding distance from the administrative center.\n\nOnce the corresponding hearings were granted, the legislative file was favorably reported by the Comisión de Asuntos Jurídicos of the Asamblea Legislativa, and in the justification, the ideas gathered in the statement of motives of the bill regarding the application of the exceptionality were set forth and taken up again:\n\nColorado has existed as a district since June 4, 1915, the date on which the canton of Abangares was erected according to Law No. 13, as canton VII of Guanacaste, designating four districts, namely, Las Juntas (head city), La Sierra, San Juan, and the 4th district Colorado. It is important to highlight that the residents of Colorado gave their support to the creation of the new canton, given the state of abandonment in which the residents of Abangares found themselves.\n\nAdministratively, Colorado obtained a certain degree of autonomy, in relation to its parent canton, with the creation of the Concejo Municipal del distrito which was created during the Trejos Fernández administration, through Decreto Ejecutivo No. 23 of April 22, 1970, published in La Gaceta of April 24 of that same year. It is worth noting that the creation of the Concejo Municipal de Distrito de Colorado had the positive and unanimous vote of the Concejo Municipal de Abangares.\n\nColorado meets the conditions it demonstrates regarding remoteness from the main populated centers, including the head city of the canton to which it belongs, the possession of infrastructure and basic services, the experience in administering municipal resources, the existence of important industries and productive developments, and above all the manifest interest of its inhabitants in obtaining their administrative independence, which leads us to request the creation of Colorado as a canton by way of exception, as permitted by Article 15 of the Ley de la División Territorial Administrativa to be elected as the twelfth canton of the province of Guanacaste.\n\nEven though it currently forms part of the Canton of Abangares, the existence of an administration independent from that one has allowed for a fairly healthy administrative and budgetary structure, because we have not applied the collective bargaining agreement that covers the municipality's officials, nor have we generated benefits in favor of the district's officials based on collective bargaining agreements. The foregoing demonstrates one of the great differences between the Municipality of Abangares and the Concejo Municipal de Distrito de Colorado.\n\nWe can observe that the district of Colorado has a budget that has been growing, but the lack of budgetary autonomy has caused some weakness in planning, therefore, in budget execution, since we depend on the actions of the parent municipality, in budget modifications, extraordinary budgets, which we must wait for them to carry out so that the CMD incorporates the district's resources.\n\nThe entry of institutions that come to improve services to the citizenry is necessary, such as; health, public transportation, financial institutions, and public institution offices essential for the development of a canton.\n\nHaving full autonomy to create urban planning policies would improve territorial planning and we would have greater development.\n\nBeing a canton, Colorado will receive greater economic resources directly to invest in the territory, like other national taxes that the Municipalities receive.\n\nFurthermore, the report rendered to the Plenary detailed the most relevant excerpts from the hearings received and finally concluded the following:\n\n“Once the criteria were received, the wording adjustments suggested by the different institutions were made and presented in a Substitute Text Motion that was approved. Additionally, emphasis is desired that the project in question does not intend to make territorial modifications during the course of presidential or municipal elections.\n\nRegarding the opposition of the Municipality of Abangares, the Intendancy made a response and expansion on the supposed situations indicated by the aforementioned municipality. In this sense, the management and administration of the Intendancy is made transparent.\n\nThe proposed canton has budgetary autonomy, as defined and amply clarified by the Contraloría General de la República in its official communication PGR-C-245-2021 (…)\n\nConsequently, the assertions made to the contrary on this matter are unfounded and entirely outside the bounds of legality.\n\nAn Intendancy that is not subject to any collective bargaining agreement, recognizing only the annual increments established by law, and that has managed its resources efficiently. It even generated, from its own office, the respective consultations to the oversight bodies on matters of taxes and remuneration.\n\nOn the other hand, it is necessary to indicate that the Intendancy of Colorado presented statistics, hard data backing its arguments, whereas the municipal opinion lacks elements that would allow its claims to be corroborated.\n\nThis population has the right to aspire to its own canton status, as the communities of Monteverde and Río Cuarto recently did.\n\n**RECOMMENDATION**\n\nIn accordance with the foregoing, **taking into account the response received and for reasons of timeliness and convenience, the deputies who are members of this Commission issue this AFFIRMATIVE MAJORITY OPINION (DICTAMEN AFIRMATIVO DE MAYORÍA) on the bill entitled “CREATION OF THE CANTON OF COLORADO, TWELFTH CANTON OF THE PROVINCE OF GUANACASTE”**, processed under file **No. 22.643,** and we recommend **its approval to the Legislative Plenary** (The underlined text does not correspond to the original).\n\nIt is clear that the review committee based its decision on aspects of timeliness and convenience, disregarding—in this Chamber's judgment—that it was not solely a matter of weighing these elements, but that it was necessary to demonstrate compliance with the legal requirements that the Legislative Assembly expressly set for itself for the decision to create a new canton.\n\nFinally, and with respect to the consultation raised in the specific case, it is pertinent to cite what was suggested by the Department of Technical Services of the Legislative Assembly in AL-DEST-IJU-211-2022 of **June 23, 2022**—issued after the committee opinion—in which the following warnings were made:\n\n“By virtue of the foregoing considerations, this advisory office draws attention to what was indicated by the Technical Committee on Administrative Territorial Division (Comité Técnico de División Territorial Administrativa), through agreement 001-04-2021, which was made known to the Permanent Commission on Legal Affairs through official communication MGP-CTDT-006-2021, dated December 13, 2021; which, among other aspects, states that: ‘(…) the territory in question does not comply with Article 9 of Law 4366. After the distance analysis with respect to the administrative center, the Committee recommends that the territory does not qualify for the exception of the aforementioned article.’ (the highlighting is not from the original).\n\nThe Technical Committee is a body attached to the National Commission on Administrative Territorial Division (Comisión Nacional de División Territorial Administrativa), which has been tasked with studying and proposing solutions aimed at achieving a systematic improvement of the country's territorial administration, acting as a technical body of the Commission, but it is not the Commission itself.\n\nIt should be noted that although the National Commission on Territorial Division was consulted by the Commission on Legal Affairs (see folio 102 of the file) as required by Law 4366, there is no record of a response referring to this project; rather, the only thing recorded is the response from its technical body.\n\nDespite the fact that the population data does not come from the National Commission, the truth is that its technical body conducted the study and reached the conclusion that the proposed canton does not meet the population requirement demanded by law, data that the Legislative Assembly can corroborate with a request for information to the National Institute of Statistics and Censuses (Instituto Nacional de Estadísticas y Censos).\n\nIn this regard, **Law No. 4366 is categorical regarding compliance with the population requirement of no less than 1% of the total population of the country or compliance with the population exception when that territory is very remote and has difficult communication with its administrative center for a new canton to be created; but having been verified by the Technical Committee that it is not met, the Legislative Assembly must proceed not to create this new canton.** While it is true that the opinion of the Commission on Territorial Division is not binding on the Legislative Assembly, and its opinion is only a legal requirement whose consultation is mandatory, the truth is that **the technical body has verified that the population requirement is not met, nor even the distance requirement indicated as the exception; therefore, the Legislative Assembly would be barred from proceeding with the approval of the creation of this canton, and if it were to do so, it would be violating the principle of legality established in Article 11 of the Political Constitution by failing to comply with the provisions of Article 9 of Law No. 4366. As the Constitutional Chamber has indicated, the Legislative Assembly cannot disapply the norms that it itself has approved on this matter of territorial division.”** (The text highlighted does not correspond to the original).\n\nIn this regard, this Court will later make its own conclusion on whether the opinion of the CNDTA, as the technical body designated by the legislator itself to advise it on matters of administrative territorial division, is binding or not. However, for the moment, it suffices to note that the Department of Technical Services of the Legislative Assembly itself emphasized that in the present case, the conditions of the law regarding population size are not met, nor is the distance requirement indicated as the exception, and in light of the foregoing and by virtue of the principle of legality, it concluded that the Legislative Assembly would be barred from proceeding with the approval of the creation of this canton.\n\n**IX.- ON THE PROVISIONS REGULATING THE PROCEDURE FOR THE FORMATION OF NEW CANTONS AND THE PRECEDENTS OF THE CONSTITUTIONAL CHAMBER**\n\nIn general terms, the construction of the territorial unit of our country is regulated, in the first place, by Article 168 of the Political Constitution:\n\n“Art. 168.- For the purposes of Public Administration, the national territory is divided into provinces; these into cantons and the cantons into districts. The law may establish special distributions.\n\nThe Legislative Assembly may decree, observing the procedures for partial reform of this Constitution, the creation of new provinces, provided that the respective project has been previously approved in a plebiscite that the Assembly shall order to be held in the province or provinces that bear the dismemberment.\n\n**The creation of new cantons requires approval by the Legislative Assembly by a vote of no less than two-thirds of the total of its members**.” (The highlighted text does not correspond to the original).\n\nThe constitutional norm provides that the constitutional competence to create new cantons is entrusted to the Legislative Assembly, and the only condition established in the Constitution is that the vote be carried out by a qualified majority of 38 votes—a vote of no less than two-thirds of the total members of the Legislative Branch. In this regard, as will be detailed later, this Chamber has stated that this reservation of qualified law—as an exception to the general rule of Article 119 of the Political Constitution—demonstrates the marked relevance that the framers considered that decisions related to the matter of territorial organization of the State held, from which great implications derive, among others: electoral, infrastructure, and resource distribution.\n\nFurthermore, it was the legislator itself that issued a legal norm that came to establish additional conditions or requirements for the creation of new cantons, setting parameters of reasonableness and proportionality in its decision. Thus, the LDTA No. 4366 of August 5, 1969 was enacted—a norm, the result of the initiative of the Government and Administration Commission of the Legislative Assembly and drafted by the then director of the National Geographic Institute (Instituto Geográfico Nacional), which came to renovate the [Law on Municipal Territorial Division No. 56 of June 4, 1909](https://www.pgrweb.go.cr/scij/Busqueda/Normativa/Normas/nrm_norma.aspx?param1=NRM&nValor1=1&nValor2=69034&nValor3=82967&strTipM=FN),—and it is precisely the parameter that the legislators consider violated.\n\nThe norms of interest are the following:\n\n“Art. 1º.- **The National Commission on Administrative Territorial Division (Comisión Nacional de División Territorial Administrativa) is created, whose function shall be to advise the Public Branches on matters of administrative territorial division.**\n\nThe Commission shall be composed of the Minister of the Interior, the Director of the National Geographic Institute, and the Director of the General Directorate of Statistics and Censuses, who may be represented by officials of their respective agencies.\n\n**No provinces, cantons, or districts may be created without first knowing the opinion of the Commission,** to whose knowledge the problems of administrative territorial division shall be submitted.\n\n(…)\n\nArt. 9º.- **Henceforth, no territory shall be established as a canton that does not have at least one percent of the total population of the country, nor shall any existing canton be dismembered if, after the dismemberment, it is left with at least a minimum population of the aforementioned percentage.**\n\n**By exception, new cantons may be created that do not reach said population, in very remote places with difficult communication with their administrative centers, provided that the National Commission on Territorial Division recommends it, after the pertinent studies of the case.**\n\nArt. 13.- Those interested in the creation of a new canton must present to the Legislative Assembly proof that the territory that is to constitute it complies with what is indicated in Article 9 and that the remainder of the canton to be dismembered also meets those conditions. They must also indicate, with all precision, the perimeter of the canton, attaching the respective map.\n\n**The Legislative Assembly shall hear the Executive Branch regarding the convenience of the creation, which shall pronounce itself after a report from the National Commission on Territorial Administration.**\n\n(…)\n\nArticle 15.- **Although the population factor is basic for the creation of provinces, cantons, and districts, the National Commission on Administrative Division may consider other geographic, economic, and sociological factors for the formation of the territorial division.**\n\nWhen changes are introduced in the territorial division, the National Geographic Institute and the General Directorate of Statistics and Censuses must take note of the changes in surface area, population, etc., publishing these values in their annual reports.\n\nThe National Geographic Institute shall prepare provincial and cantonal maps, which must be reviewed when necessary. The municipalities of the country may contribute economically to their publication.\n\nThe names of the new territorial units shall be agreed upon by the National Commission on Nomenclature.\n\nThe title of City shall be granted by the Legislative Assembly to towns, having previously heard the opinion of the National Commission on Territorial Division.” (The highlighted text does not correspond to the original).\n\nFrom the highlighted norms, it follows that the referred law not only creates the CNDTA but also establishes the requirements for the creation of new cantons.\n\nThis Chamber has ruled on compliance with these requirements for the creation of new cantons and has indicated the binding nature of the norms self-imposed by the legislator. Precisely, this Chamber issued the advisory opinion [No. 1995-2009](https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-83772), related to the creation of the canton of Colorado as part of the province of Guanacaste, in which it made the following considerations:\n\n“IV ).- CONSTITUTIONAL NORM AND LEGAL REGIME FOR THE CREATION OF NEW CANTONS.- Article 168 of the Political Constitution, as relevant, states that for the purposes of Public Administration, the national territory is divided into provinces, cantons, and districts; the creation of new cantons requires approval by the Legislative Assembly by a vote of no less than two-thirds of the total of its members. The Political Constitution contains no other provision on the creation of new cantons. As a general principle of Constitutional Law, every territorial jurisdiction existing at the time the supreme norm that recognizes it emerges, elevating it to the category of a decentralized institution with constitutional rank—in this case, the cantons—acquires the right to its full existence and identity, to its autonomy granted by a norm of equal rank (Art. 170 id.), to maintain its integrity and its condition of administrative decentralization (this latter does not imply, of course, that it is a form of State or government that excludes all other forms of political administration, because like all decentralization, it leaves the constituent power and even the legislative power of the State intact). The necessary legal-constitutional conclusion leads us to determine that it is the responsibility of the Legislative Branch whether or not to develop the competence contained in Article 168 of the Political Constitution for the creation of cantons, establishing the requirements and formalities that give reasonable and proportionate content to the principles that the supreme norm itself has conceived, and in any case, to the complementary ones that, without being in the original norm, are appropriate to make the exercise of the competence possible.\n\nV.- LAW ON ADMINISTRATIVE TERRITORIAL DIVISION (No. 4366 of August 19, 1969).- It is this law, precisely, that the Legislative Branch has enacted to regulate the creation of new cantons. It is necessary to point out that, by the Political Constitution establishing in the final paragraph of Article 168 that the affirmative vote of at least two-thirds of the totality of the members of the Legislative Assembly is required for the creation of a canton, it gives a clear idea of the importance that the original framers gave to territorial integrity and the entire matter related to the territorial subdivision of the Provinces. **In the opinion of the Chamber, the general principle of Law establishing that legal norms bind even the authority that has issued them and, within its competence, its superior, implies that the law that governs the functioning of the Legislative Assembly for the exercise of a competence that is also constitutional, binds it in the specific cases in which it must exercise it, which is nothing more than the application of the general principle of the singular non-derogability of the norm for the specific case; a general principle of constitutional rank, as it is applicable to the entire legal system, as a derivation of and at the same time a condition for the Rule of Law in its entirety. All of which means, in relation to the present matter, that for the creation of a new municipal territorial entity, the Legislative Assembly must observe the law that it has enacted for that purpose, without prejudice, of course, to its power to repeal or reform it prior to its exercise.**\n\nVI ).- LAW ON ADMINISTRATIVE TERRITORIAL DIVISION AGAIN.- Having said the above, in the opinion of the Chamber, a new canton cannot be created without complying with the administrative procedure contained in Law No. 4366, in addition to the fact that the examination of the file reveals serious formal non-compliances, all of which lead to the constitutional competence of the Legislative Assembly being substituted by public agencies and dependencies or vitiated by the omission of essential requirements. The procedure becomes a violation of the legislative procedure and, consequently, contrary to the Political Constitution itself. In the following Considerandos, these non-compliances are detailed.\n\nVII ).- NON-COMPLIANCES WITH THE PROCEDURE FOR THE CREATION OF THE CANTON.- In the opinion of the Chamber, the following norms have not been observed in the processing of the bill:\n\n\"No provinces, cantons, or districts may be created without first knowing the opinion of the Commission, to whose knowledge the problems of administrative territorial division shall be submitted.\" (paragraph 3, Article 1).\n\n\"Henceforth, no territory shall be established as a canton that does not have at least one percent of the total population of the country, nor shall any existing canton be dismembered if, after the dismemberment, it is left with at least a minimum population of the aforementioned percentage.\n\n\"By exception, new cantons may be created that do not reach said population, in very remote places with difficult communication with their administrative centers, provided that the National Commission on Territorial Division recommends it, after the pertinent studies of the case.\" (Article 9)\n\n\"When a new canton is created, the limits that will separate it from the bordering cantons must be determined with every minuteness, in the same law of creation...\" (Article 10)\n\n\"Those interested in the creation of a new canton must present to the Legislative Assembly proof that the territory that is to constitute it complies with what is indicated in Article 9 and that the remainder of the canton to be dismembered also meets those conditions. They must also indicate, with all precision, the perimeter of the canton, attaching the respective map.\n\n\"The Legislative Assembly shall hear the Executive Branch regarding the convenience of the creation, which shall pronounce itself after a report from the National Commission on Territorial Administration.\" (Article 13)\n\n\"Although the population factor is basic for the creation of provinces, cantons, and districts, the National Commission on Administrative Division may consider other geographic, economic, and sociological factors for the formation of the Territorial Division.\n\n\"The names of the new territorial units shall be agreed upon by the National Commission on Nomenclature.\" (paragraphs 1 and 4, Article 15).-\n\nIndeed, the legislative file does not show that the studies and the report of the National Commission on Administrative Territorial Division were carried out. Official communication No. 950118 of February 27, 1995, which is attached to folios 139, 140, and 141, signed by the Vice-Minister of the Interior and Police, who is, at the same time, President of the Commission, cannot have the virtue of fulfilling the requirement: first, because the competence to carry out the studies and make recommendations belongs to the Commission as a body and not to its President; and second, because Law 4366 requires the studies and the consultation to the Commission, which cannot be substituted by the phrase ‘Given that we have learned that the bill is in the legislative process...’, an expression that is incompatible with the objective pursued by Law 4366 when creating the Commission, from which it is expected that it will formally and specifically intervene in every procedure aimed at the creation of a new canton.\n\nConsequently, no other conclusion can be reached but to affirm that the National Commission of Administrative Territorial Division did not participate in the processing of this bill and, consequently, the requirements and formalities established by the legislator itself based on the constitutional purposes and principles involved in the creation of new cantons have not been fulfilled (…)\n\nThe consultation is answered to the effect that the bill for the creation of the Canton of Colorado, the Twelfth of the Province of Guanacaste, is unconstitutional, due to a violation of the legislative procedure and, consequently, this opinion is binding. Judges Solano and Arguedas dissent and answer the consultation to the effect that the bill is unconstitutional insofar as it violates articles 9 and 68 of the Political Constitution and is contrary to ruling No. 6000-94 of this Chamber.” (The emphasis does not correspond to the original).\n\nFrom the foregoing precedent, it can be concluded that this Chamber established the premise that, in matters concerning the exercise of a legislative power of constitutional origin such as the creation of cantons, the Legislative Assembly is bound by Law No. 4366. It can well be said that the LDT contains norms of legislative procedure regarding the exercise of a legislative competence of constitutional origin. For this reason, the cited advisory opinion rightly referred to the principle of singular non-derogability of the norm, which according to the jurisprudence of this Court has constitutional rank (see also ruling No. 2020-023743 and advisory opinion No. 2021-009111).\n\nWhat was stated by the majority in that advisory opinion was subsequently taken up by this same Chamber in advisory opinion No. 2002-05801, concerning the creation of the canton of Corralillo. The following considerations were set forth in that resolution:\n\n“III.- The territorial organization of the State.\n\nThe Costa Rican State, despite being characterized by a unitary form, that is, despite the fact that the territories that comprise it do not enjoy true political autonomy from the central power, is indeed divided into spatial circumscriptions of various degrees: provinces, cantons, districts, towns, etc. This distribution of space is termed by the Law as ‘Administrative Territorial Division’. (Cf. Law number 4366 of August nineteenth, nineteen sixty-nine) Although this denomination could lead us to fall into the error of considering it a division for purely administrative purposes (for example, for the correct planning and implementation of state and local public services), the truth is that the territorial organization adopted by the State entails a series of serious implications, which undoubtedly transcend the sphere of the merely administrative. In that sense, the division adopted has a direct impact on electoral organization, on the election of deputies to the Legislative Assembly (elected by provinces according to article 106 of the Political Constitution), on the designation of local authorities (council members, district councilors, and municipal mayors), on the determination of the various areas of jurisdictional competence, etc. Hence, the establishment by the State of a clear and precise organization has a direct impact on the smooth functioning of all other forms of public action related to it. It is for this reason that the Political Constitution, in its article 168, establishes that only the Legislative Assembly may modify the territorial organization of the Costa Rican State, as it pertains to provinces and cantons. In the first case, an act approved according to the procedures for partial reform of the Constitution is required, preceded by a popular consultation in the provinces involved in the dismemberment; in the second, it requires the approval of a Law by a qualified majority of two-thirds of the total number of deputies. The imposition of the aforementioned qualified legal reserve (an exception to the general rule of article 119 of the Constitution) also reveals that character of marked relevance that the constituent body considered applicable to decisions regarding the territorial organization of the State, and which derives from the profound implications that the matter in question entails.\n\nIV.- Procedure for the creation of new cantons.\n\nIn Costa Rica, the constituent body did not develop the topic referring to the necessary procedures for the creation of a canton in a detailed manner. In fact, article 168 of the Political Constitution establishes barely the following:\n\n(…)\n\nThat is, the Fundamental Law merely determined that a reinforced legal reserve exists for the constitution of new cantons, leaving to the ordinary legislator the development of the express mechanisms for the implementation of that parliamentary competence. Thus, the Law on Administrative Territorial Division, number 4366 of August nineteenth, nineteen sixty-nine, provides for the specific procedures that the authorities must follow to approve the creation of a new canton or district. (…)\n\nAs a corollary of everything stated up to this point, it is possible to affirm that the Costa Rican legal system requires that for the creation of a canton of the Republic, the Legislative Assembly (the sole competent body) must approve a bill according to the procedures of ordinary Law, by a qualified majority of two-thirds of the totality of its members, these requirements being augmented by those provided for in Law number 4366. According to the reasoning followed by this Chamber in ruling 4009-95 partially transcribed, it is understood that the legislator, upon approving the Law on Administrative Territorial Division, self-limited itself, developing the generic contents of constitutional numeral 168 through a more detailed and specific regulation of its own action in this matter. Upon approving Law 4366, the Legislative Assembly used its powers of self-regulation, defining the necessary procedures to guarantee that at the time of approving new cantons, Parliament will act with full knowledge of the scope of its decision, in relation to aspects of territory and population of the new circumscriptions. The procedure imposed by the referenced Law is of mandatory observance for the Assembly, and as it involves constitutional matter, its violation implies the reflexive violation of the norm contained in constitutional article 168. In that context, it is clear that to approve the creation of a new canton, the Assembly must have certainty that it will have a population equal to or greater than one percent of the total inhabitants of the country, or failing that, it must adhere to the (technical) report issued by the National Commission of Administrative Territorial Division, a body that must evaluate whether conditions of remoteness and difficult communication exist regarding the municipal administrative centers, which would make the creation of a new canton appropriate. Obtaining this criterion constitutes an indispensable requirement in the procedure for constituting such territorial entities. (…)\n\nAs the minimum required by the Law was not reached, and as the criterion of the National Commission of Administrative Territorial Division was not available, without whose affirmative opinion it was impossible for the Legislative Assembly to approve the creation of the canton of Corralillo, the creation of the new canton was impossible for Parliament. This omission cannot be justified by the fact that the National Commission did not respond to the hearing granted to it for eight days by the Permanent Ordinary Commission of Government and Administration (folio 52 of the legislative file). Article 157 of the Regulations of the Legislative Assembly expressly regulates what concerns consultations that must be carried out by the Legislative Assembly with the University of Costa Rica, the Supreme Electoral Tribunal, the Judicial Branch, and autonomous institutions, providing that if eight business days after receiving the consultation the institution does not pronounce itself, it is understood that it does not oppose the initiative in question. This norm clearly regulates the exercise of an institutional self-defense power, which allows the mentioned bodies and entities to express their opinion regarding a specific bill that in some way affects their interests. The participation of the National Commission of Administrative Territorial Division provided for in article 9 of Law 4366 constitutes, on the contrary, a necessary element of the procedure, since the Commission must base its opinion on strictly technical criteria, and unlike the case of the other mentioned institutions, mere arguments of convenience and opportunity for or against the bill under discussion cannot be given. It is a limitation imposed by the legislator in use of its already described powers of self-regulation, in order to ensure that the decision it adopts is backed by complete technical certainty regarding its content and scope. If the Assembly does not have all the necessary information to act consciously, it would be leaving the decision regarding the territorial organization of the State to other instances, in clear violation of the reserve that the Political Constitution established in its favor. In addition to the above, it is clear that numeral 9 of Law 4366 is a special norm regarding the generic regulation of article 157 of the Regulations of the Legislative Assembly. All these reasons lead this Chamber to conclude that the absence of an opinion rendered by the National Commission of Administrative Territorial Division in the terms stated constitutes a defect in the procedure used in the discussion of legislative file number 13,515, which causes the nullity of the proceedings followed, so that in accordance with the provisions of article 101 paragraph 2 of the Law of Constitutional Jurisdiction, the procedure must be retraced to before its approval in the Permanent Ordinary Commission of Government and Administration.\n\nThe consultation is answered to the effect that, regarding the proceedings followed for the approval of the bill for the ‘Creation of Canton IX of the Province of Cartago, Corralillo’, legislative file number 13,515, the Constitutional Chamber notes invalidating defects in the legislative procedure.” (The emphasis does not correspond to the original).\n\nFrom a careful reading of that advisory opinion, it is seen that the Chamber emphasized, first, that –upon the approval of the LDTA– the legislator itself established its own rules for the exercise of the competence granted in art. 168 of the Political Constitution. It is a special regulation concerning the procedures for said exercise, which it must itself respect. Thus, from that resolution, it was established that “the procedure imposed by the referenced Law is of mandatory observance for the Assembly, and as it involves constitutional matter, its violation implies the reflexive violation of the norm contained in constitutional article 168”. Second, and of special relevance for the specific case, the Chamber underlined that prior to the creation of a new canton, the criterion of the CNDTA must be known, which will verify that the territory has a population equal to or greater than 1% (one percent) of the total population of our country. In the absence of this requirement, the Legislative Assembly may only create it if the CNDTA recommends it. Indeed, art. 9 of the LDT so provides, which it is appropriate to transcribe again:\n\nBy exception, new cantons that do not reach the aforementioned population may be created, in places very remote and with difficult communication with their administrative centers, provided that the National Commission of Territorial Division recommends it, after the appropriate case studies.\n\nThus, it is the responsibility of this technical body to evaluate whether conditions of remoteness and difficult communication exist regarding the municipal administrative centers to which they are assigned, which would justify the creation of a new canton. The Chamber expressly indicated that obtaining this criterion is an indispensable requirement in the procedure for creating new cantonal entities. It must be understood that it must be a favorable opinion, since the law clearly states “provided that it recommends it”. Therefore, to create a canton whose territory does not meet the population requirement, the Legislative Assembly must necessarily have the positive opinion –the recommendation– of the CNDTA.\n\nWhat has been stated in the precedents –regarding compliance with legal procedures self-imposed by the Legislative Assembly for the exercise of its competences– can be compared, as it contains the same logic, with the assumption of the removal of protected status (desafectación) of the protected wilderness areas of our country. This Court has affirmed that, if technical elements are required for the creation of these zones, it must be understood that they are also needed for their total or partial removal of protected status, and the absence of such a requirement or technical basis causes the legislative decision to be invalidated. For example, this Chamber, in ruling No. 1998-7294 –expressly alluding to vote No. 2009-1995 supra cited– concluded the following:\n\n“According to the cited material, mutatis mutandi, if for the creation of a protective wilderness area the Legislative Assembly, by means of a law, established compliance with specific requirements, in order to determine if the designation in question is justified, it is logical that, for its partial or total removal of protected status, certain requirements must also be met –such as the performance of technical environmental studies– to determine that the removal of protected status does not transgress the content of constitutional article 50” (The emphasis does not correspond to the original).\n\nIn that resolution, this Chamber affirmed that “the non-observance of certain requirements has the effect of transgressing substantial norms or principles of constitutional rank” and, therefore, it was held that the Legislative Assembly cannot validly approve the reduction of a surface area of a protective zone, without first having a technical study that justifies its decision, since, otherwise, its action becomes contrary to the Political Constitution due to violation of the principle of constitutional reasonableness in relation to arts. 121 section 1) and 129 of the Political Constitution.\n\nSubsequently, alluding to these same considerations and the principle of singular non-derogability of norms, the Chamber issued advisory opinion No. 2012-013367, in which it stated the following:\n\n“This principle is a conquest of the Rule of Law that emerged from the French Revolution, since it was characteristic of the old absolutist regime that the king changed criteria according to his interests. So, if the legislator, developing the constitutional guarantees in favor of the environment, establishes as a requirement and guarantee of the right, that a law and a sufficient and complete technical study justifying it are required for the reduction of protected areas, such a provision binds, by virtue of the principle, the legislative body itself that enacted it.” (The emphasis does not correspond to the original. Considerations that were subsequently reiterated in full in ruling No. 2017-002375).\n\nThis is another good example showing that the Legislative Assembly is subject to the regulations that it itself has issued for the purpose of regulating the exercise of its constitutional powers. In both cases, due to their implications, it concerns subjection to technical criteria that justify the parliamentary decision.\n\nIn this regard, it is necessary to emphasize that it is not that the legal norm is in itself a parameter of constitutionality to evaluate the conduct of the Legislative Branch, but rather that said norm collects rules previously established for the exercise of a legislative competence of constitutional origin, so that breaching them would suppose an injury to the principle of singular non-derogability of the norm, which is of constitutional order. We could also add that the disregard and disapplication of said rules would imply a transgression of the principles of regularity and legal certainty that must inform the work of Parliament.\n\nFinally, it is pertinent to note that in ruling No. 2023-06227, by which the Chamber analyzed the constitutionality of the creation of the district of Birrisito, it reached several conclusions, among others the following:\n\n“In order to develop this analysis, a first important conclusion can be put forward according to which, for this Court, it is clear then that the Legislative Assembly –in addition to being able to create provinces and cantons– also has the competence to create districts, remembering that maxim which provides ‘he who can do the greater, can do the lesser,’ since if that Branch of the Republic has the constitutional attribution granted by article 168, Constitutional, to create the former, with much greater reason it can do so for the case of districts. Furthermore, article 14 of Law No. 4366 contains a delegation that is neither permanent nor exclusive, so that the Legislative Assembly may, by itself, create districts, or, indeed, modify or repeal what is established therein, without one thing being a requirement for the other, or what is the same, it can create districts without the need to modify or repeal what is provided in the Law on Administrative Territorial Division No. 4366. Interpreting it otherwise would imply the renunciation of the competence that has been assigned to it by the Constituent Body, which is not derived from the fact of having delegated and regulated it in a procedure in the mentioned law, which contemplates the creation of districts by the Executive Branch. The generic constitutional power to agree on the administrative distribution of the national territory has been directly attributed to the Legislative Assembly as a constitutional body, therefore it must also include that of districts. Although the Constituent Body did not concretely define that specific treatment in article 168, Constitutional, by not doing so, it left open the possibility for the legislator to assume that competence in accordance with the principles of opportunity and convenience, which evidently would not be prohibited. In this sense, as will be seen later, this Chamber leans towards the retention of that competence, also, in favor of the Legislative Assembly, despite it having been regulated in the law for the Executive Branch.\n\n**VI.- Continuation.** From the preceding items, several conclusions can be established to have it as demonstrated that the claimant is not correct regarding this point:\n\n**a)** First, as this Court has already indicated, the discussion about the best administrative territorial division of Costa Rica is proper to the Political Branches of the State, particularly the Legislative Assembly. Article 168, Constitutional, is very clear in indicating that this Branch can create provinces and cantons. And, in accordance with the theory of implied powers, it is also admissible that it is the Legislative Assembly that can create districts, since the delegation made in article 14 of Law No. 4366 is neither permanent nor exclusive, in such a way that the Legislative Assembly could create districts or modify or repeal what is established in said norm.\n\n**b)** It is not the function of the Chamber to resolve on the convenience or not of varying the distribution of the national territory for the better allocation of public resources, for the correct administration of communal interests, nor for electoral effects or administrative planning, for which reason this Court has no competence whatsoever to pronounce on the convenience or timeliness of having created the district of Birrisito.\n\n**c)** It is not true that the Legislative Assembly had to modify Law No. 4366 in order to create the district of Birrisito. Observe that this same Court, in Ruling No. 2013-012802 of 2:45 p.m. on September 25, 2013, expressly indicated that the delegation granted to the Executive Branch in article 14 of that Law No. 4366, on Administrative Territorial Division to create districts, is not permanent, that is, it accepts variations by decision of the legislator, but also that it is not exclusive, which is very important in terms of the claimant's complaint since this implies that the power for the Executive Branch granted in that numeral 14 can perfectly coexist, together with the natural power of the Legislative Assembly to create districts. It must be taken into account that this Constitutional Court has never stated that this article 14 of Law No. 4366, or this Law in its entirety, had to be modified for the Legislative Assembly to be able to create districts.\n\nWhat this Court has stated is that the Legislative Assembly could modify or repeal what is established in that regulation -cited article 14-, or it could itself, on its own, create new districts. Hence, the interpretation made by the petitioner, in that sense, is improper.\n\n**d)** Then, it is more than evident that the Legislative Assembly had the competence to create that district as it did, and even though this is a matter of legality that this Court is not called upon to assess, the record shows that the procedure established in article 14 of Law No. 4366 was followed; namely:\n\n**1)** The National Commission of Territorial Division (Comisión Nacional de División Territorial) and specifically its Technical Committee, analyzed the request to create the district of Birrisito, also requesting the National Geographic Institute (IGN) to carry out the corresponding survey of the boundaries of that new district of the canton of Paraíso.\n\n**2)** The mandatory consultation was made to the Municipality of Paraíso, having its approval, but in addition, the National Nomenclature Commission, the Institute of Statistics and Census, the Birrisito Integral Development Association, and the National Geographic Institute (IGN) were consulted.\n\n**3)** The boundaries of the district were established, as well as where its head town would be located and the towns that would comprise it, as well as matters relating to the minimum population that would integrate this new district.\n\n**4)** The Municipal Council of Paraíso, in ordinary session No. 16 of July 7, 2020, Article II, subsection 11, issued an agreement by which the district of Birrisito was created, having for this purpose the endorsement of the Municipality of Paraíso. The boundaries of the new district, the hamlets that would comprise it were established; an agreement that was adopted in final form, also ordering that it be communicated to the Special Commission of the seven deputies of the province of Cartago.\n\n**e)** **With the creation of the district of Birrisito by the Legislative Assembly, the principle of singular non-repealability of regulations serving as a parameter of constitutionality has not been violated as claimed by the petitioner because that Branch of the Republic had full competence to do so, it did not make any disapplication of norms for the specific case, it simply made use of a power it possesses and which derives from the Political Constitution itself**. Furthermore, the principle of separation of powers was not violated because it also did not usurp powers of the Executive Branch since, as has been reiterated supra, the power to create districts granted in article 14 of Law No. 4366 is neither permanent for that Branch nor exclusive of the Legislative Branch. Consequently, regarding this point, the action must be dismissed because no violation of the Law of the Constitution has occurred in the terms alleged regarding this point. (...)”.\n\nAfter reviewing this precedent, it is possible to affirm that the premise of this Chamber ‒as in ruling [**No. 2013-012802**](https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-587294)‒ is that, regarding the creation of districts, the Legislative Assembly designed an administrative procedure and delegated that competence to the Executive Branch, but it was warned that this is not a permanent or exclusive delegation, since, according to what was affirmed in both precedents, the Legislative Assembly could itself create districts. That was precisely what happened and was resolved in Birrisito and was the basis for discarding an injury to the principle of singular non-repealability of regulations serving as a parameter of constitutionality. In that matter, moreover, it was not proven that there was a negative advisory opinion for the creation of the referred district. The ruling states the following:\n\n“The National Commission of Territorial Division (Comisión Nacional de División Territorial) and specifically its Technical Committee, analyzed the request to create the district of Birrisito, also requesting the National Geographic Institute (IGN) to carry out the corresponding survey of the boundaries of that new district of the canton of Paraíso”.\n\nThat is to say, there was no controversy there about the opposition of the National Commission of Administrative Territorial Division (Comisión Nacional de División Territorial Administrativa, CNDTA). This is not a minor aspect in view of the analysis of the specific case now submitted for consultation, in which, as recorded supra, the territory does not meet the population conditions of article 9, nor does it meet the distance circumstances, and therefore the initiative is not endorsed by a favorable advisory opinion from the CNDTA.\n\nFrom the examination of the precedents of this Chamber and the review of other legislative files in which the creation of new cantons has been approved, it is concluded that, due to the sum of circumstances indicated, the case analyzed in this consultation is a new and exceptional hypothesis.\n\nIndeed, this Court undertook the task of reviewing other legislative antecedents and verified that the Assembly has had the favorable advisory opinion of the CNDTA for the recent creation of other cantons. For example, in legislative file 20.787 regarding the creation of the canton of Río Cuarto, Law No. [9440](https://www.pgrweb.go.cr/scij/Busqueda/Normativa/Normas/nrm_texto_completo.aspx?param1=NRTC&nValor1=1&nValor2=86329&nValor3=115044&strTipM=TC), the existence of an advisory opinion from the commission was proven, indicating the following:\n\n“By means of official letter DVG-CMMQ-272-2016, Carmen Muñoz Quesada, in her capacity as President of the National Commission of Administrative Territorial Division (Comisión Nacional de División Territorial Administrativa): issues an approval for the project. She recognizes that the case of Río Cuarto constitutes an exception, since the remoteness and difficult communication are evident and that could thus make the population criterion of the minimum 1%, contained in the Law of Administrative Territorial Division (Ley de División Territorial Administrativa), more flexible”.\n\nMoreover, from the analysis of legislative file No. 21618, relating to the creation of the canton of Monteverde, Law No. [10.019](https://www.pgrweb.go.cr/scij/Busqueda/Normativa/Normas/nrm_texto_completo.aspx?param1=NRTC&nValor1=1&nValor2=96054&nValor3=128489&strTipM=TC), it was verified that the advisory opinion of the commission in charge of issuing a report on the bill recorded the following:\n\n“The project has the favorable criteria of the consulted institutions and the representation of its inhabitants through the signatures that originated the file, the support of the different associations and local government bodies. No unfavorable criterion was issued.\n\n- The district of Monteverde is located in a very remote place with difficult communication to its administrative center, for which reason we consider the creation of this new canton to be of utmost importance, representing a necessary initiative for the district, benefiting the residents of Monteverde who were the ones who promoted this initiative.\n\n- This proposed law would solve the problem of dependence on the parent Municipality regarding budget processing.”\n\nIn that sense, the legislative file contains the favorable report of the Nomenclature Commission and the positive advisory opinion of the CNDTA due to the distance factor:\n\n“Considering the hearing held in session 03-2020 and the new elements requested by this body, the National Commission of Administrative Territorial Division (Comisión Nacional de División Territorial Administrativa) reconsiders the decision previously taken and endorses the creation of the canton of Monteverde, as recorded in Agreement 01 of Session 04-2020, considering, in light of the study submitted, that the case is subject to the exception mentioned in article 9 of Law 4366”.\n\nFinally, in legislative file No. 22.749, relating to the approval of the canton of Puerto Jiménez, Law No. [10.195](https://www.pgrweb.go.cr/scij/Busqueda/Normativa/Normas/nrm_texto_completo.aspx?param1=NRTC&nValor1=1&nValor2=97236&nValor3=131020¶m2=1&strTipM=TC&lResultado=1&strSim=simp), it is recorded that the commission issuing a report on the bill stated the following:\n\n“In Official Letter MGP-CNDT-001-2022 dated February 2, 2022, the Ministry of Governance and Police (Ministerio de Gobernación y Policía) and the National Commission of Territorial Division (Comisión Nacional de División Territorial), endorse the legislative initiative in all its aspects.”\n\nWith which it is concluded that in these three antecedents examined, there was indeed a favorable advisory opinion from the corresponding CNDTA. The case under analysis is a different hypothesis, due to the following: it is sought to apply exceptionality, there is indeed an advisory opinion, but it is negative and advises against the creation of the canton of Colorado.\n\n**X.- ON THE ALLEGED INJURY TO THE PRINCIPLES OF LEGALITY, REASONABLENESS, AND PROPORTIONALITY. INJURY TO THE PRINCIPLE OF SINGULAR NON-REPEALABILITY OF REGULATIONS**\n\nAs detailed supra, the consulting legislators question the injury to the cited principles, because the parliamentary initiative does not respect the population requirement for creating new cantons as provided in article 9 of the Law of Administrative Territorial Division (LDTA). They consider that creating a new canton without respecting said condition is unreasonable and disproportionate.\n\nIn the case under study, according to the assessment of the legislative file, it is noted that ‒as already warned supra‒ the initiative does not meet the population requirement. However, after a careful review of the applicable regulations, it can be affirmed that non-compliance with this single requirement is not in itself harmful to the legislative procedure, since the law itself allows for the exception. The CNDTA must analyze whether the conditions for this exception to be configured are met (articles 9, second paragraph, and 15 of the LDTA).\n\nIn fact, upon reviewing the legislative records of the approval of that law, [legislative file No. 3552](http://imagenes.asamblea.go.cr/EINTEGRATOR4/document.aspx?query=1009&doc=1006597), Law 4366, LDTA, it was possible to verify that the legislators themselves promoted the initiative in order to change a fixed population amount established in the previous legislation, to introduce percentages that could evolve in relation to the national reality. However, in the committee issuing the report ‒Permanent Commission of Government and Administration Affairs‒ it was warned that **the population requirement was not rigid and absolute**. In this regard, the president of the commission, Mr. Carlos José Gutiérrez, affirmed the following:\n\n“I wanted to add to what Deputy Barrantes Elizondo says that article 15, paragraph 1) also states: ‘Although the population factor is basic for the creation of provinces, cantons, and districts, the National Commission of Territorial Division shall consider other geographic, economic, and sociological factors that inspire the formation of the territorial division’. **So, the principle of the percentage is not a rigid and absolute principle**”. (See minutes of the ordinary session held by the Permanent Commission of Government and Administration on April 11, 1968, visible on folio 33 of the digital file).\n\nTherefore, in the present case, the absence of compliance with the population requirement does not injure *per se* the principles of reasonableness and proportionality, since the law itself allows for the exception.\n\nIn summary, the competence to create cantons is of constitutional origin (article 168) and is exclusively and exclusionarily attributed to the Legislative Assembly. This law ‒LDTA‒ encompasses the mechanism created by the Assembly itself for the exercise of that competence. Therefore, respect for said mechanism acquires constitutional relevance. From the jurisprudential review carried out here, it can be concluded that this Constitutional Court has indicated that the Legislative Assembly must observe the requirements and procedures it imposed upon itself in order to exercise its constitutional power to create new cantons, because otherwise an injury is incurred to the principles of singular non-repealability of the legal norm, regularity, and legal certainty which, as already warned, are of constitutional origin.\n\nIn the case under examination, since the population requirement was not met, the Legislative Assembly could approve the creation of the canton of Colorado provided there had been a positive advisory opinion from the CNDTA which, after verifying that the exception provided in article 9, second paragraph, was configured, recommended that creation. To reach such a conclusion, it is necessary to refer again to the applicable norm, which states the following:\n\n“Article 9. (…)\n\nBy exception, new cantons may be created that do not reach the said population, in very remote places with difficult communication to their administrative centers, **provided that the National Commission of Territorial Division recommends it**, after the pertinent studies of the case.” (The highlighting does not correspond to the original).\n\nThen, the CNDTA must always issue its advisory opinion. When the population requirement is met, it is irrelevant whether it recommends its creation or not, since what it says is not binding on the Assembly. If the population requirement is not met, the canton may be created provided that the exception relating to distance or remoteness is configured. In such a case, it will not be enough for this to be verified, but rather a positive advisory opinion from the CNDTA must be obtained. Moreover, that exception must be recorded in that advisory opinion, and it must be positive. In that sense, it can be affirmed that this opinion is binding. That is, to create a canton whose territory does not meet the population requirement, the Legislative Assembly must necessarily have the positive advisory opinion ‒the recommendation‒ of the CNDTA. Of course, this does not mean that, if this positive criterion is given, the Assembly must create the canton, but rather that if the CNDTA does not recommend its creation, under the understanding that the exception of article 9, second paragraph, is configured, the Assembly may not approve the initiative.\n\nAt this point, a different conclusion is reached than that proposed by the Department of Technical Services of the Legislative Assembly, because that department ‒despite drawing attention to the unconstitutionality of the initiative‒ affirmed that the advisory opinion was not binding. In this regard, this Chamber considers that, upon careful reading and application of the norm, it must be affirmed that the advisory opinion becomes binding when the population requirement of article 9, first paragraph, is not met, because the norm warns that the exception established in article 9, second paragraph, will apply provided that the CNDTA so recommends.\n\nIf the population conditions are met and there is an affirmative advisory opinion from the CNDTA, as has been said, the Assembly is not bound by that criterion. It will ultimately be the Assembly that decides, through an aggravated vote, whether it considers the creation of a new canton opportune. The same would occur if the population conditions are respected, but the CNDTA disapproves of the creation of a new canton. However, it is reiterated that regarding the application of the exception provided in article 9, second paragraph, by decision of the Assembly itself, the positive criterion of the CNDTA is a requirement to be able to create a new canton. Recall what this Chamber stated:\n\n“The participation of the National Commission of Administrative Territorial Division (Comisión Nacional de División Territorial Administrativa) provided for in article 9 of Law 4366 constitutes, on the contrary, a necessary element of the procedure, because the Commission must base its advisory opinion on strictly technical criteria, without being able to give, as in the case of the other mentioned institutions, mere arguments of convenience and opportunity for or against the project under discussion. It is a limitation imposed by the legislator in use of its already described powers of self-regulation, in order to ensure that the decision it adopts is supported by complete technical certainty about its content and scope.”\n\nIt is necessary to clarify that this binding nature is not because the legislative power has been delegated to the CNDTA, but rather it is a consequence of the legislator having wanted to make the procedure for creating cantons more onerous in this specific way.\n\nIn the specific case, upon reviewing the initiative and the advisory opinion of the Reporting Committee of the Legislative Assembly, as commented, both are based on the exceptionality of article 15 of the LDTA, interpreted as if this established a subsidiary possibility; however, this Chamber observes that such interpretation departs from the letter and spirit of the norm self-imposed by the legislator, whose compliance is a procedural requirement for the exercise of the constitutional competence to create cantons. In effect, in reality, article 15 indicates the other elements that the CNDTA may assess for the application of the exception provided in article 9. So, that article 15 is not an additional hypothesis to the two that are contemplated in article 9 –the one that is the rule (relating to the population requirement) and the one that is the exception (relating to distance)– but rather it refers to which aspects the CNDTA may weigh always, especially when it comes to supporting a positive advisory opinion, in the event that the population requirement is not met.\n\nIn summary, in the approval process for new cantons, the consultation must always be carried out with the CNDTA, which must assess the population requirement and, failing that, distance or remoteness, to which it may add the analysis of the aspects mentioned in article 15 to support that the exception of article 9, second paragraph, is configured. Furthermore, according to this, if the population requirement is not met, a positive pronouncement from the CNDTA is necessary for the Assembly to validly create a canton. In that sense, it can be said that this advisory opinion is binding. It is better to affirm that such a positive advisory opinion is a mandatory condition for creating a canton whose territory does not meet the population requirement. It is evident that, even if this positive advisory opinion is issued, the Assembly may decline and ultimately not approve the proposed initiative.\n\nIn the precedents examined supra ‒specifically relating to the approval of new cantons‒ the unconstitutionality of the process was declared because the legislative procedure lacked the technical inputs and advisory opinions from the CNDTA. In the matter under examination, the conclusion reached is that an essential defect in the legislative procedure was incurred because the condition self-imposed by the Legislative Assembly itself was not met, in the sense that there should have been an affirmative advisory opinion from the CNDTA justifying the exceptionality (article 9, second paragraph).\n\nIt is worth mentioning that this type of warning has been made by the Attorney General's Office (PGR) in the processing of various legislative initiatives. That advisory body has emphasized precisely the need for strict observance of the requirements set forth in Law No. 4366.\n\nFor\nexample, in legal opinion OJ-69-2019 of 25 June 2019 the following was stated: “As we have pointed out on other occasions (OJ-058-2007 of 27 June 2007, OJ-002-2011 of 21 January 2011, OJ-101-2012 of 5 December 2012, among others), Article 168 of the Political Constitution provides that the creation of new cantons requires approval by the Legislative Assembly by a vote of no less than two-thirds of its total membership, and, in addition to those requirements, those set forth in the Law on Administrative Territorial Division (No. 4366 of 19 August 1969) must be added, since the constitutional validity of those legal initiatives that seek the creation of new cantons depends on compliance with those requirements. (…)\n\nIn that understanding, it must be taken into consideration that Article 9 of the Law on Administrative Territorial Division indicates that no territory shall be erected into a canton that does not have at least one percent of the country’s total population, nor shall any existing canton be dismembered if, once the dismemberment is carried out, at least a minimum population of the expressed percentage does not remain.\n\nIf it does not meet the indicated population percentage, the article provides that, exceptionally, a new canton may be created when it concerns very remote locations with difficult communication to their administrative centers, provided that the National Commission of Territorial Division so recommends, following the relevant studies. (…)\n\nConsequently, it must be noted that the text of the legislative bill does not indicate the amount of population that the canton of Cariari intended to be created would have, and, therefore, it is not possible to determine whether it would meet the requirements of Article 9 of the Law on Administrative Territorial Division. In the event that the population of the new canton does not reach 1% of the country’s current population, the existence of the recommendation by the National Commission of Territorial Division required by the Law must be verified to justify the creation of the canton due to the remoteness of the location from the administrative centers and the difficulty of communication.” (The highlighting does not correspond to the original. Considerations that were reiterated and addressed to the Legislative Assembly in legal opinion OJ-112-2021 of 8 July 2021).\n\nMore recently, in legal opinion PGR-OJ-033-2023 of 24 March 2023, the PGR again rendered an opinion regarding a legislative bill related to the creation of the Canton of Tucurrique. In that non-binding report, the following reflections were addressed to the Legislative Assembly: “Now then, as this Office of the Attorney General has sustained (see, for example, OJ-058-2007 of 27 June 2007), Article 168 of the Political Constitution provides that the creation of new cantons requires approval by the Legislative Assembly by a vote of no less than two-thirds of its total membership, which imposes a qualified vote on this type of initiative.\n\nWe cannot overlook that the Law on Administrative Territorial Division sets forth a series of requirements in order to validly constitute a new canton, which must be mandatory for those proposing the creation of a new canton. (…)\n\nThus, a matter of the utmost importance to consider within the present initiative is that related to the provisions of Article 9 of the Law on Administrative Territorial Division, which indicates that no territory shall be erected into a canton that does not have at least one percent of the country’s total population, nor shall any existing canton be dismembered if, once the dismemberment is carried out, at least a minimum population of the expressed percentage does not remain.\n\nNote that the rule indicates that —exceptionally— a new canton may be created when it concerns very remote locations with difficult communication to their administrative centers (canton of Jiménez), provided that the National Commission of Territorial Division so recommends, following the relevant studies. In that regard, Article 13 of the Law on Administrative Territorial Division establishes that those interested in the creation of a new canton must present to the Legislative Assembly proof that the territory to be constituted conforms to what Article 9 indicates and that the remainder of the canton to be dismembered also meets those conditions, and it further requires the precise indication of the canton’s perimeter and the presentation of the respective map.” (The highlighting does not correspond to the original).\n\nIn light of the considerations made and applying them to the specific case, it is concluded that the legislative procedure has a defect of unconstitutionality that invalidates it. In the present matter, failure to comply with a norm that regulates the exercise of a competence attributed by the Constitution to the Legislative Assembly was verified. That non-compliance, as was consulted, injures the constitutional principles of singular non-derogability of the legal norm —the procedure established in the LDTA—, regularity, and legal certainty, which must be respected in legislative work. If for the creation of a canton whose territory does not meet the population requirement, the legislator established as an unavoidable rule the need for the exception related to remoteness and the concomitant favorable opinion of the CNDTA to be configured, the non-observance of this requirement in the case under examination injures the aforementioned principles and therefore it is appropriate to declare the unconstitutionality of the procedure.\n\nXI.- ON AN ALLEGED PLEBISCITARY PROCESS IN PROGRESS AND THE INJURY TO THE DEMOCRATIC PRINCIPLE\n\nThe consulting legislators questioned that on 7 October 2022, the draft regulation for the plebiscitary consultation of the inhabitants of the Canton of Abangares was published in the Official Gazette La Gaceta, to define —in accordance with the democratic constitutional principle— whether or not the inhabitants agreed with the division of their own canton. They indicate that the plebiscite process was in progress, with a second publication of the regulation dated 24 October 2022, such that the present bill under consultation would also be violating the democratic constitutional principle. In a similar vein, they highlighted the importance of giving value to and listening to the opinion of the affected municipal entity.\n\nIn this regard, concerning the holding of a popular consultation, it is necessary to emphasize that said requirement is not contemplated in the Political Constitution for the creation of cantons, but only for the creation of provinces, as can be inferred from the literal text of Article 168 of the Constitution.\n\nThat discussion was even settled in the approval records of Law No. 4366 when the approval of Article 3 was being assessed, and upon the query by legislator Vicente Castro as to whether the holding of plebiscites was for both scenarios, the committee chairperson clarified the following:\n\n“For cantons it has been done when there has been doubt, for example in the case of La Fortuna, before the cantonal population disappeared for already known reasons, there was a certain agreement among the parties that this should be resolved by a plebiscite, but in reality the Constitution only states it with respect to provinces.” (See folio 48 of the digital legislative file).\n\nFurthermore, it should be recalled that in judgment No. 2013-012802, this Chamber expressly warned that there was no constitutional or legal duty to hold popular consultations for the creation of a district. Identical considerations may be reiterated for the approval of cantons:\n\n“Note that there is no constitutional or legal duty to hold a popular consultation as a requirement or prerequisite for validly creating a district.\n\n(…)\n\nThus then, no unconstitutionality whatsoever is found, neither in Article 14 of the challenged Law, nor in the challenged Executive Decree that created the district of Labrador in the canton of San Mateo, due to the fact that such creation originated from the Executive Branch. Now, properly regarding the omissions the claimant points out, in the sense that for the creation of the Labrador district no popular consultation was held nor was the opinion of the Municipality of San Mateo taken, firstly, from the procedure for creating districts this Chamber proceeds to examine only these two alleged omissions, it not being appropriate to review the rest of the requirements, steps, or procedures that the Law establishes for the creation of districts, not only because it was not alleged or substantiated in the action, but because doing so would be equivalent to an examination of legality that falls outside the competence of this constitutional jurisdiction. Secondly, it must be clear that for there to be an unconstitutional omission, there must be an unfulfilled constitutional obligation; in this case, the obligation that for creating a district there must be a popular consultation is not derived from our Political Constitution Law. Not even from the legal norm can such an obligation be derived” (The highlighting does not correspond to the original).\n\nIn any case, this Chamber observes that from the statements made by the consulting legislators, what is on record is that a regulation was issued to conduct plebiscitary consultations by the Municipality of Abangares (https://www.imprentanacional.go.cr/pub/2022/10/07/COMP_07_10_2022.html). But it is not accredited that a procedure was formally initiated to consult specifically on the creation or not of the Canton of Colorado. Thus, in this regard, no defect is accredited.\n\nSecondly, the consultants make a reflection on municipal autonomy and refer to the importance of listening to the opinion of the municipality that would be dismembered, in this case, the Municipality of Abangares. In this regard, this Court has no doubt that the municipal corporation was formally granted a hearing during the legislative procedure. Even the disagreements raised were timely assessed and dismissed by the legislative committee issuing the report, which made reference to the statements and evidence submitted by the District Municipal Council of Colorado. Moreover, upon reviewing the applicable regulations, it is ruled out that there is a constitutional or self-imposed legal obligation for the Legislative Assembly to adhere to the municipal opinion of the canton from which the territory is segregated to create another canton. Therefore, in this particular matter, no defect is accredited either.\n\nConsequently, with respect to these aspects, the invoked defects are dismissed.\n\nXII.- CONCLUSION\n\nBased on the arguments contained in the preceding paragraphs, this Chamber considers that the consulted initiative, the legislative bill “Creation of the canton Colorado, twelfth canton of the province of Guanacaste,” which is being processed under legislative file No. 22.643, contains invalidating defects in the legislative procedure. Specifically, because the approval of the canton is sought without the favorable opinion of the CNDTA, which is necessary when the territory does not meet the population requirement established by law.\n\nIn the other aspects consulted, no defects of unconstitutionality were found.\n\nTHEREFORE:\n\nThe optional consultation of constitutionality is answered in the sense that, regarding the procedure followed for the approval of the legislative bill “Creation of the canton Colorado, twelfth canton of the province of Guanacaste,” which is being processed under legislative file No. 22.643, invalidating defects in the legislative procedure are confirmed. Specifically, because the approval of the canton is sought without the favorable opinion of the National Commission of Administrative Territorial Division, which is necessary when the territory does not meet the population requirement established by law. In the other aspects consulted, no defects of unconstitutionality were found.\n\nLet this resolution be notified to the Directorate of the Legislative Assembly.\n\nFernando Castillo V.\nPresidente\n\nFernando Cruz C. Luis Fdo. Salazar A.\n\nAnamari Garro V. Ingrid Hess H.\n\nAlejandro Delgado F. Hubert Fernández A.\n\nEXPEDIENTE: 24-010272-0007-CO\n\nPROCESO: CONSULTA LEGISLATIVA\n\nCONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE. San José, at thirteen hours forty-five minutes on the third of September of two thousand twenty-four.\n\nTaking into account that Magistrate Fernando Cruz Castro is incapacitated, and in order not to delay the processing of the appeal, let the judgment issued in the present matter be notified without his signature, which will be recorded once he rejoins his duties.\n\nFernando Castillo V.\nPresidente" }