3.- The Deputies Alvaro Torres Guerrero, Joycelyn Sawyers Royal, Carlos Villalobos Arias, and Walter Muñoz Céspedes, in separate writings visible on folios 103 to 106 of the case file, withdrew their signatures from the consultation raised. This occurred on the 15th of the same month of December.
4.- For their part, the Deputies Rodolfo Salas Salas (folio 107), Manuel Larios Ugalde, José Merino, José Manuel Nuñez G., Virginia Aguiluz, and Nombre180542 (folios 112 to 116), between the 15th and 16th of the same month, adhered to the optional consultation, so that the number of petitioners remains within the requirement demanded by subsection b) of Article 96 of the Ley de la Jurisdicción Constitucional.
5.- The provisions of Article 100 of the Ley de la Jurisdicción Constitucional have been complied with in the proceedings, and this resolution is issued within the term established by Article 101 ibidem.
Drafted by Magistrate Solano Carrera; and,
Considering:
I.- ON THE ADMISSIBILITY OF THE CONSULTATION. In accordance with the provisions of Article 96, subsection b) of the Ley de la Jurisdicción Constitucional, we are faced with an optional consultation, initially raised by thirteen Deputies, of whom four withdrew and six new ones joined it. It was under these conditions that the Chamber allowed it to proceed, as seen in the resolution at thirteen hours and fifty-eight minutes on the sixteenth of December of nineteen ninety-nine (folio 108). According to the above, we are at this moment dealing with a petition endorsed by fifteen Deputies, even though for a certain time the consultation lacked the requirement of at least ten petitioning Deputies. The Chamber deems that it must begin its examination of the consultation by analyzing those facts, as narrated in resultandos three and four, since they are of great importance within the scheme of the constitutionality consultation covered by the Ley de la Jurisdicción Constitucional, particularly subsection b) of Article 96.
Certainly, the rule requires that the consultation must be \"presented\" by no fewer than ten Deputies and, without needing to analyze the precedents in which this Chamber has refused to evacuate a consultation because it definitively lost the ten deputies who initially formulated it, as set forth in the resolution at fourteen hours and twenty-four minutes on the twenty-third of November of nineteen ninety-three (No. 6122-93), the truth is that in this case, for whatever reasons, practically within a matter of minutes, upon the withdrawal of the first petitioners, new ones came to replace them, to the point that ultimately fifteen Deputies have joined, a greater number than initially did so. As this is not the hypothesis that the Chamber has already decided previously, but rather that there has been a recomposition of the petitioners, practically without this court having noticed it and had the opportunity to analyze the situation, given the public interest that constitutionality issues hold and that Title IV of the Law governing this jurisdiction regulates, it must be concluded that the consultation meets the signature requirements referred to in the rule first cited in this considering. As another matter of form, it must also be noted that the Chamber will review only the aspects specifically questioned in a concrete manner by the petitioners (Article 99 ibidem).
II.- GENERAL ASPECTS REGARDING SEVERANCE PAY INDEMNIFICATION (INDEMNIZACION POR CESANTIA). Since a general objection is made to the bill \"Ley de Protección al Trabajador,\" to resolve this consultation it is necessary to refer to the consequences that may derive from Article 63 of the Political Constitution. This text establishes:
\"ARTICLE 63: Workers dismissed without just cause shall be entitled to an indemnification (indemnización) when they are not covered by unemployment insurance.\"
This article is located in Title V \"Social Rights and Guarantees,\" and from its reading, it can be understood that the Constitution-makers were interested in the provision of unemployment insurance and that, until it came into legal reality – a matter on which the Chamber will not dwell – workers dismissed \"without just cause\" would be entitled to an indemnification (indemnización). Now then, the Labor Code (Código de Trabajo) came to regulate that indemnification in Article 29, known as \"severance pay assistance (auxilio de cesantía)\". Up to this point, therefore, \"severance pay (cesantía)\" has been handled as an expectation of a right that arises only in cases where the employer unilaterally decides to dismiss a worker without any of the grounds established in labor legislation being present. It must be taken into consideration that through Law No. 5173, the Legislative Assembly authentically interpreted Article 29 of the Labor Code, on which occasion the legislators extended the application of the institute to workers who take retirement, old-age pension, death, or withdrawal under any of the established pension regimes. And although this resolution will also not pause to analyze the reasons with which it has been accepted, the jurisprudence has certainly established the possibility for employers to advance severance pay (cesantía) annually. As for its legal nature, severance pay indemnification (indemnización por cesantía) is complex. It constitutes compensation for the damages caused to the worker by the employer's decision through which the termination of the contract was decided, as well as the creation of an obstacle to dissuade the employer from using unjustified dismissal, thus attempting to mitigate unemployment. From this dual perception, one understands the reason why the Constitution-makers established as a requirement for the right to arise that the employment contract ended without cause.
III.- LABOR LAW AS A LAW OF MINIMUMS. But, notwithstanding what was indicated in the preceding section, this Chamber cannot reach the conclusion that the drafters of the analyzed bill and so many others who have intervened in it throughout its extensive discussion seem to share. In contrast to the criterion that has been prevailing in the discussion of the consulted bill, for this Court, Constitutional Article 63 does not prohibit granting the so-called severance pay assistance (auxilio de cesantía) even in hypotheses where there is no dismissal \"without just cause\". What it does mandate, with supreme character, one might say, is that whenever the dismissal is without cause, the indemnification (indemnización) is applicable. But it does not prohibit granting and legally recognizing a type of severance pay assistance (auxilio de cesantía) in any case of dismissal. Furthermore, Article seventy-four of the Political Constitution is clear in pointing out that the rights and benefits contained in its Title of Social Rights and Guarantees do not exclude others that derive from the Christian principle of social justice and that the law may indicate. Thus, also in this field, the legislator has a space of discretion, which would only be limited if its policies in this matter were to become unreasonable or disproportionate. The Chamber, then, does not share the thesis that in order to avoid possible unconstitutionality in the overall regulation of the protection system referred to in the consulted bill, it would have been necessary to modify the regulation and criteria contained in Article 29 of the Labor Code, reducing the final amount of the indemnifications, but in any event, it must be pointed out in parallel that these reductions are not in themselves unconstitutional, since the provision of Transitional Provision IX of the bill takes care to safeguard acquired rights or consolidated situations, the only issue that would have legal relevance in the commented modification.
IV.- ON GENERAL ISSUES OF THE BILL \"LEY DE PROTECCION AL TRABAJADOR\". For many years, the discussion on severance pay indemnification (indemnización por cesantía) in our environment has practically revolved around breaking the cap on the indemnification and turning it into an effective right rather than the conditioned expectation contained in Constitutional Article 63. Among the different bills that have been presented on this matter, we can cite those corresponding to legislative case files No. 11,167 and 11,522, the first related to the reform of several articles of the Labor Code and the second to the bill for the creation of the Labor Capitalization Fund (Fondo de Capitalización Laboral) and Economic Democratization. The bill now before us, processed under case file number 13,691, published in Supplement No. 56 to La Gaceta No. 152 on Friday, August 6, 1999, according to its statement of motives, pursues the reform of two necessary elements: first, the pension regimes, reforming and reinforcing four pillars: Strengthening the Caja Costarricense de Seguro Social by providing it with better instruments to combat delinquency, evasion, and under-declaration regarding the disability, old age, and death regime, as well as to improve the investments of said fund. Second, a redistribution of social burdens to finance individual savings accounts for supplementary pensions. Third, creating voluntary individual savings accounts, and lastly, the expansion of pension coverage for the poorest Costa Ricans. On the other hand, the bill contemplates transforming the system that has surrounded severance pay assistance (auxilio de cesantía), maintaining as such 5.33 percent of salaries and a 3 percent that will be destined for a Labor Capitalization Fund (Fondo de Capitalización Laboral) owned by the workers, contributions of which once a year a part will be transferred to the pension fund selected by the worker, which will be destined for a supplementary pension, and the remaining contribution will stay in the Capitalization Fund with its returns as labor savings to be returned to the worker at the moment the labor relationship concludes.
The consulted bill, in its Article 86, reforms Article 29 of the Labor Code, stating:
\"ARTICLE 86. Article 29, the last two paragraphs of Article 31, as well as Articles 612 and 614 of the Labor Code are reformed to henceforth read as follows:
ARTICLE 29: IF THE EMPLOYMENT CONTRACT FOR AN INDETERMINATE TIME CONCLUDES BY REASON OF JUSTIFIED DISMISSAL, DUE TO ANY OF THE GROUNDS PROVIDED IN ARTICLE 83 OR ANOTHER CAUSE BEYOND THE WORKER'S WILL, THE EMPLOYER MUST PAY THE WORKER SEVERANCE PAY ASSISTANCE (AUXILIO DE CESANTÍA) IN ACCORDANCE WITH THE FOLLOWING RULES:
1. AFTER CONTINUOUS WORK OF NOT LESS THAN THREE MONTHS NOR MORE THAN SIX, WITH AN AMOUNT EQUAL TO SEVEN DAYS' SALARY;
2. AFTER CONTINUOUS WORK OF MORE THAN SIX MONTHS BUT LESS THAN ONE YEAR, WITH AN AMOUNT EQUAL TO FOURTEEN DAYS' SALARY;
3.\n\nAFTER MORE THAN ONE YEAR OF CONTINUOUS WORK, WITH THE AMOUNT OF DAYS OF SALARY INDICATED IN THE FOLLOWING TABLE:\n\na) YEAR 1: 19.5 DAYS PER YEAR WORKED\nb) YEAR 2: 20 DAYS PER YEAR WORKED OR FRACTION GREATER THAN SIX MONTHS\nc) YEAR 3: 20.5 DAYS PER YEAR WORKED OR FRACTION GREATER THAN SIX MONTHS\nd) YEAR 4: 21 DAYS PER YEAR WORKED OR FRACTION GREATER THAN SIX MONTHS\ne) YEAR 5: 21.24 DAYS PER YEAR WORKED OR FRACTION GREATER THAN SIX MONTHS\nf) YEAR 6: 21.5 DAYS PER YEAR WORKED OR FRACTION GREATER THAN SIX MONTHS\ng) YEAR 7: 22 DAYS PER YEAR WORKED OR FRACTION GREATER THAN SIX MONTHS\nh) YEAR 8: 22 DAYS PER YEAR WORKED OR FRACTION GREATER THAN SIX MONTHS\ni) YEAR 9: 22 DAYS PER YEAR WORKED OR FRACTION GREATER THAN SIX MONTHS\nj) YEAR 10: 21.5 DAYS PER YEAR WORKED OR FRACTION GREATER THAN SIX MONTHS\nk) YEAR 11: 21 DAYS PER YEAR WORKED OR FRACTION GREATER THAN SIX MONTHS\n\nl) YEAR 12: 20.5 DAYS PER YEAR WORKED OR FRACTION GREATER THAN\n\n\t\t\t\t\t SIX MONTHS\n\nm) YEAR 13 AND SUBSEQUENT: 20 DAYS PER YEAR WORKED OR FRACTION GREATER THAN\n\n\t\t\t\t\t SIX MONTHS\n\n4.\n\nIN NO CASE MAY SUCH SEVERANCE PAY BE PAID FOR MORE THAN THE LAST EIGHT YEARS OF THE EMPLOYMENT RELATIONSHIP\n\n*5. SEVERANCE PAY MUST BE PAID EVEN IF THE WORKER IMMEDIATELY GOES TO WORK FOR ANOTHER EMPLOYER\"*\n\nAs already noted in preceding recitals, this reform reduces downward the indemnities that have been recognized and that must be paid by an employer who dismisses a worker without just cause, such that we are facing an aspect that is exclusively determinable by law, leaving unimpaired (Transitory Provision IV) the acquired rights as of the date the norm enters into force.\n\nIn conclusion, in the consulted bill, the severance indemnity is maintained, albeit with a diminished quantum and certainly without lifting the cap, which shall remain at eight months.\n\nOn the other hand, however, the Labor Capitalization Fund (Fondo de Capitalización Laboral) is created, which, given the manner in which it is financed, does not present any unconstitutionality, since, with the reduction of the indemnities contemplated by Article 29 of the Labor Code (Código de Trabajo) having been ordered, it is designed as a \"new\" social charge established by the legislator and borne by the employer, through three percent of the salary – according to Article 3 of the consulted Bill. It is not, then, as is attempted to be portrayed in the consultation, an advance on the severance indemnity. It is solely a social charge that the employer must pay to develop the \"Labor Capitalization Fund,\" a charge in any event disguised or attenuated through the repeatedly mentioned reduction, applying a system of balances between sacrifices and advantages for the subjects involved in the production process, which in any event has constitutional recognition through the provisions of Article seventy-four. From that perspective, there is no obstacle to the bill providing that, once a year, fifty percent of the three percent that the employer must contribute to the Capitalization Fund must be transferred to authorized entities operating as administrators, creating the mandatory supplementary pension regime, as a benefit that the worker will receive upon meeting the retirement requirements established for the disability, old-age, and death regime of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), a benefit that will be added to the ordinary one from the regime to which they naturally belong. Furthermore, the remaining 50% shall be allocated, with its returns, to implementing a labor savings account, also administered by the entities chosen by the worker, monies that shall be returned to them upon the termination of their employment relationship, regardless of the cause for termination. This savings shall be delivered to the worker upon the termination of their employment relationship, such that it is their property and from which they shall earn returns. Its legal nature is distinct from that of the severance indemnity, and for that reason, the claim formulated by the consulting deputies must be dismissed.\n\n**V.- REGARDING THE CONSULTATION ON SPECIFIC ARTICLES.** Having made the delimitation referred to in the preceding recitals, and based on the legal theses set forth by the Chamber, the possible unconstitutionalities formulated by the consultants with specific indications are analyzed below, in the same order in which they are presented to the Chamber, with the caveat that the numbering of the articles included in this ruling corresponds to the wording and numbering of the copy of the bill dated December 13, 1999, provided to the case file and attached beginning at folio 21.\n\n1) ARTICLE 3 OF THE BILL FOR VIOLATION OF ARTICLES 63, 72, 73, AND 74 OF THE POLITICAL CONSTITUTION. The consultants are incorrect in considering that the bill converts the severance indemnity into a worker's right, since, as indicated, there is no modification to the current system, the indemnity being maintained in its essence. Consequently, there is no violation of the provisions of Article 63 of the Political Constitution. Nor is it possible to understand that the bill makes the transitory regime of the indemnity permanent. What is maintained is that the severance pay would cease in the eventual case that the unemployment insurance established by the fundamental charter is implemented in the country, since, as has been indicated, upon the existence of the latter, the indemnity would be replaced. It is also true, as already stated, that the Labor Capitalization Fund is a \"new\" social charge established to be borne by employers. Being a power of the Legislative Assembly, exercised in accordance with the Political Constitution, and, furthermore, as the interested parties do not indicate in what sense it is unconstitutional, except that they accuse it based on their criterion – already stated to be without basis – that it is a regulation of severance pay contrary to the provisions of Article 63, the Chamber must reject that there is any unconstitutionality. Moreover, the consulting deputies indicate that the bill violates the content of Article 74 of the Political Constitution, which reaffirms the principle of solidarity. However, this does not prevent the legislator, under certain circumstances, due to their very nature, from being able to establish social charges on only one or some of the factors that concur in the production process. In labor law, the protective principle has been conceived as the need to protect the weaker party in the relationship, which is why, historically and based on this principle, workers have been protected with certain charges borne mostly by employers and the State itself.\n\n2) ARTICLES 9, 10, 11, 12, AND 13 OF THE BILL FOR ALLEGED VIOLATION OF ARTICLES 28, 63, 73, AND 74 OF THE POLITICAL CONSTITUTION. Regarding the supplementary pension regime established in the bill, the consultants consider that it would be sustained with funds from the severance indemnity, but on this matter, the consultants should be referred to what has been stated throughout this ruling, on which it is not appropriate to continue elaborating. Furthermore, it is indicated that the principle of autonomy of will is violated, by considering that the monies of the Capitalization Fund are the property of the workers and therefore could not be invested in aspects on which they had not given their opinion. The Chamber does not share this criterion, since it involves, as indicated, monies destined to benefit workers, administered by authorized institutions and which can be freely chosen by the worker. Certainly, the withdrawal of the monies has been conditioned on two future events clearly determined in the law, as it is a matter of providing financial support for a supplementary pension regime and a savings plan that can be used by the worker when they meet the requirements of the law. Although the resources must be managed in individual accounts, they do not enter the beneficiaries' patrimony until the parameters established by law are verified. The fact that it is obligatory can in no way be considered harmful to the interests of the workers, since it is a matter of providing them with additional income via a pension for when they no longer register ordinary income from salaries and have taken ordinary retirement. It is a future benefit that would not materialize if it were left to the worker's choice to join or not. And as the consultants indicate, if an ordinary pension regime already exists, it must be understood that the establishment of another complementary one, such as the one at hand, does not come to substitute the former, which we would call general, but to reinforce it, almost at no cost to the workers, and which would be delivered to them together with the ordinary one, which would represent an improvement in their current situation. The Chamber does not accept the consultants' thesis that the monies of the pension fund could only be administered by the Costa Rican Social Security Fund, as the institution constitutionally established to administer social insurances. The problem lies in considering the Labor Capitalization Fund as a social insurance in the sense used by the Political Constitution, which, as has been sufficiently explained, does not apply to the Fund analyzed and its special nature. Thus, given the distinct nature of the pension contained in the consulted bill and the social insurances administered by the Costa Rican Social Security Fund, no constitutional friction arises in this case. It is also consulted whether there is a violation of the autonomy of will when the bill establishes that the supplementary pension regime would also receive the contribution of the 1% mandatory savings established for workers in favor of the Banco Popular y de Desarrollo Comunal. It is true that the Chamber has deemed the monies from the mandatory savings established in Article 5 of Law No. 4351 of July 11, 1969, to be the property of the worker, since from the workers' salaries the mentioned law established the obligation to collect one percent, which must be withheld by the employer and delivered to the Banco Popular, so that the latter administers the money for the term established in Article 8. It is thus established, with the dual purpose of endowing the banking institution with funds and ensuring the worker benefits both by being able to obtain credit and by enjoying their savings periodically, as these are partially returned after the period mentioned in Article 8 of the law. However, with the questioned reform, such monies do not cease to be the property of the worker, although they become part of the Capitalization Fund, since this Fund also, through its own mechanisms, has the final objective of benefiting the worker. Here again we find the principle of solidarity and contribution of all factors participating in the production process, as proclaimed by the Political Constitution. Therefore, in the Chamber's opinion, the claimed unconstitutionality does not occur.\n\nJudge Piza dissents regarding the provisions in the Bill insofar as it removes the administration of the Capitalization Fund from the hands of the Costa Rican Social Security Fund, which violates Article 73 of the Constitution.\n\n3) ARTICLE 8 OF THE BILL FOR ALLEGED VIOLATION OF ARTICLE 34 OF THE POLITICAL CONSTITUTION. The consultants consider that said article of the bill confuses the employer's contribution for severance with that of the Labor Capitalization Fund, but as already explained in previous recitals, in the Chamber's opinion, this conclusion cannot be reached. Indeed, neither the provisions of Article 8, nor those of Article 30 of the bill, can lead to the understanding that there is an affectation of acquired rights. Solidarity associations (asociaciones solidaristas) and savings cooperatives retain their rights, although as of the law's entry into force, they will be governed by different rules, with the regulations applying to them prospectively. In fact, as the bill clearly indicates, by operation of law they may establish the so-called pension operators, participating under equal conditions as any other organizations of this type.\n\n4) ARTICLE 40 BIS OF THE CONSULTED BILL FOR ALLEGED VIOLATION OF ARTICLES 9 AND 41 OF THE POLITICAL CONSTITUTION. In its Article 40 Bis, the bill establishes in its third paragraph: \" …In any case, the operators must respond for the integrity of the workers' and contributors' contributions with their own patrimony, and if it should prove insufficient to cover the loss, once all instances established by law have been exhausted, the State shall provide the missing compensation for such contributions and shall proceed to liquidate the Operator, without prejudice to subsequent criminal and administrative actions.\" Regarding its content, the inclusion of this paragraph was made through Motion No. 809 by Deputy Luis Fishmann, and it reproduces an effect of the State's protectionist principle, that is, notwithstanding that the respective operator is the direct responsible party for the monies it administers, in the case of funds that would benefit workers and given the possibility that even after taking all legal precautions, some operator might not fulfill its obligations, the State, as a last resort, would assume a subsidiary obligation destined to compensate for shortfalls, all with the aim of not harming the beneficiaries. It appears to the Chamber that, given the nature of the interests at stake, this type of responsibility can well be established by ordinary law. It is a matter of granting confidence to the system, and only a deviated exercise could be challenged in the respective venue, without the regulation as such being attackable as illegitimate.\n\n5) ARTICLE 82 OF THE CONSULTED BILL FOR ALLEGED VIOLATION OF ARTICLES 23, 24, 46, AND 56 OF THE POLITICAL CONSTITUTION. The aspects contemplated in the mentioned article, regarding the reform of various articles of the Constitutive Law of the Costa Rican Social Security Fund, with respect to obtaining data from Direct Taxation and the possibility of ordering the closure of businesses, are measures adopted to give the institution a greater possibility of obtaining the contributions that by law must be deposited in its coffers to maintain the distinct social insurance regimes it administers by constitutional mandate, thus from that perspective, given that the provision of Article 73 of the Political Constitution is broad, there can be no unconstitutionality in the coordinated work of supplying vital information and the possibility of closing businesses, which appear to be included in the constitutional faculty granted to the Costa Rican Social Security Fund so that it can carry out its mission. This has been recognized by constitutional jurisprudence, and in that sense, see ruling number 6497 of this Chamber, from 11:42 hours on December 2, 1996, in which it was held that **\"the invocation of Article 24 of the Constitution has a limit in the subjective rights of the workers, recognized in the cited Article 73, and it is a value –solidarity– also constitutionally recognized; a value and rights whose undeniable importance makes them a priority in this case. It is not compatible with the spirit of the Constitution for the company to shield itself behind Article 24 to refuse to supply pertinent information to the Fund, without this infringing upon the corresponding rights of the workers...\"** Rulings numbers 200-96 and 4720-96 can also be seen in the same sense.\n\nIt is recorded, however, that it will be the exercise of those powers that may be reviewed through specific constitutional processes, but not the norm itself which, as indicated, does not imply any constitutional injury. Judge Piza dissents and declares that the questioned norm would produce an injury to Article 24 of the Constitution.\n\n6) ARTICLE 3, SECOND PARAGRAPH, OF THE BILL FOR ALLEGED VIOLATION OF ARTICLE 183 OF THE POLITICAL CONSTITUTION. The provision in the consulted paragraph is no more than a development of what is already provided for in Article 183 of the Political Constitution, in the sense that the Office of the Comptroller General of the Republic (Contraloría General de la República) is responsible for overseeing public finances and, according to the following Article 184, for approving or rejecting the budgets of the entities indicated by the Constitution. Thus, it does not violate any principle or superior norm for the Law to provide that the Comptroller's Office may reject whatever in the budget bill submitted to it does not include the mentioned provision. It should be noted that during the course of the legislative discussion, an unconstitutionality that the bill contained was eliminated, in the sense of regulating the Legislative Assembly in a similar manner, transferring the duty to include the corresponding budget items to the Ministry of Finance.\n\n7) ARTICLE 21 OF THE CONSULTED BILL FOR ALLEGED VIOLATION OF ARTICLE 24 OF THE POLITICAL CONSTITUTION. The consultants consider that regarding the voluntary supplementary pension regime, the law cannot establish 57 years as the minimum age to take the pension, since it is a voluntary regime, and therefore these aspects must be regulated by the parties. Indeed, it must be distinguished that the bill establishes two types of supplementary pensions, the first being the mandatory one that will be sustained with contributions established by Article 13 of the bill. The other regime is the voluntary one, to which only the worker contributes, if they so decide. We are, then, facing a voluntary regime in the strict sense of the term, such that the worker will enter into it, freely contracting if they consider the established criteria favorable, or simply will not contract. But, on the other hand, the Chamber cannot dispute with the Legislative Assembly the technical criteria that have been used to estimate that, even in the case of a voluntary regime, the age of fifty-seven years is what actuarially makes the existence of the regime viable. That question must be debated in another sphere, even the legislative one, so that it may be refuted or confirmed, but in the abstract, it is impossible for the Chamber to come to estimate that it is an unreasonable or disproportionate age. At least it does not appear to be so, in light of what mandatory pension regimes provide.\n\n8) ARTICLE 73, FIFTH PARAGRAPH, OF THE CONSULTED BILL FOR ALLEGED VIOLATION OF ARTICLE 33 OF THE POLITICAL CONSTITUTION. The paragraph mentioned by the consultants states: \"ARTICLE 73. Special norms of authorization to create operators …The Savings and Loan Fund of the National Educators' Association (Caja de Ahorro y Préstamo de la Asociación Nacional de Educadores), the Teachers' Pension and Retirement Board (Junta de Pensiones y Jubilaciones del Magisterio), and the National Teachers' Life Insurance Society (Sociedad de Seguros de Vida del Magisterio Nacional) are authorized to jointly constitute a corporation with the sole purpose of establishing a pension operator, which shall be considered, for the purposes of this law, as the sole authorized operator of the national teaching profession (magisterio nacional)…\" The consulted article does not establish what the consulting deputies argue, since it authorizes different institutions, such as the Costa Rican Social Security Fund, the Banco Popular y de Desarrollo Comunal, Infocoop, Japdeva, and the University of Costa Rica, to create an operator for the purposes of being able to capture the monies of the Labor Capitalization Fund, only that regarding the National Teaching Profession, due to several organizations being involved, the bill authorizes them a single operator, but without indicating the obligation of all teachers to affiliate solely with this one. The foregoing would contrast with the provisions of Article 11, also of the consulted bill, which empowers workers to choose their operator, and only in cases where they do not decide, the contributions will automatically be transferred to the operator of the National Teaching Profession in the cases of workers affiliated with the pension system of that guild, and those of the rest of the workers would be deposited in the operator of the Banco Popular.\n\n9) TRANSITORY PROVISION V, FOR ALLEGED VIOLATION OF ARTICLE 182 OF THE POLITICAL CONSTITUTION. Through this transitory provision, the Costa Rican Social Security Fund is exempted from the application of the procedures of the Administrative Procurement Law (Ley de Contratación Administrativa) for the acquisition of goods and services that the institution considers necessary to put into operation the Centralized Collection System established in Article 31 of the Constitutive Law of the Costa Rican Social Security Fund. In this sense, the transitory provision is related to the deadline that the bill itself establishes for putting the collection system into effect, that is, six months. It should be cited that this Chamber, in ruling number 998-98, examined the Administrative Procurement Law in general terms, to point out that there are two main institutes upon which the Constituent Power built the system: public bidding (licitación) as the ideal means for the conclusion of State contracts, lato sensu, and control in the hands of the Office of the Comptroller General of the Republic. On that occasion, the different modalities of public bidding were examined, and it was found congruent with the text of Article one hundred eighty-two of the Constitution. In light of that doctrine, and in reference to the specific case, whose special circumstances have been analyzed, the Chamber considers that the exception regime contemplated in Transitory Provision V is not contrary to it, since the guiding principles of the administrative procurement regime must be observed whenever possible, and the comptroller intervention – a posteriori – is not eliminated as a guarantee of the correctness of the actions of the authorized administration. The Chamber understands that the legislator has granted a specific deadline for this, which does not appear unreasonable, taking into account that an efficient and suitable collection system must be put into practice for the purposes pursued by the system; therefore, it is considered that the claimed unconstitutionality does not exist.\n\nJudges Piza and Vargas dissent regarding the provisions of this transitory provision of the Bill, insofar as they consider that the temporary authorization granted to the Costa Rican Social Security Fund for the acquisition of materials, goods, and services, without applying the procedures established in the Administrative Procurement Law, violates Article 182 of the Constitution.\n\n
\n\n10) NEW ARTICLES 77 AND 78 OF THE CONSULTED DRAFT BILL, FOR ALLEGED VIOLATION OF THE DEMOCRATIC RULE OF LAW. The first of the consulted articles establishes that 15% of the profits of public state enterprises shall be allocated to strengthen the Invalidez, Vejez y Muerte (Disability, Old Age, and Death) regime of the Caja Costarricense de Seguro Social. And the second, that a 10% contribution from the profits of the Instituto Nacional de Seguros must be made to strengthen the Régimen de Riesgos del Trabajo (Workplace Risks Regime). The query concerns the term \"profit\" (utilidad), as the consulting parties consider that it cannot be applied to the State. However, the draft bill establishes contributions to be borne by public entities, which are not part of central administration, to strengthen special protection regimes already in place; hence, we are not dealing with funds budgeted by law for the service the State must provide, but rather effectively with institutions that generate surpluses in their operation. Therefore, the legislator has considered that these may be used to improve social security regimes, which cannot be considered unconstitutional. As the query is solely on the merits, the provision indicated is not unconstitutional in nature.\n\n11) ARTICLE 82 OF THE CONSULTED DRAFT BILL, FOR ALLEGED LEGISLATIVE OVERREACH. The consulting parties indicate that Article 82 of the draft bill reforms Article 44 of the Ley Constitutiva de la Caja Costarricense de Seguro Social, noting that despite the spirit of the draft bill leaning toward regulating the situation of salaried workers, and not independent workers, the text under discussion still maintains references to this latter group of workers. In this sense, the Chamber does not find the inclination the legislators indicate, either in the preamble (exposición de motivos) or in the content of the draft bill, but in any case, this is an aspect that in itself is not unconstitutional, and which by its nature is susceptible to being managed at the legislator's discretion. On the other hand, the deputies consult that Article 82 of the draft bill establishes the strict liability (responsabilidad objetiva) of employers for failing to make the deductions they are obligated to, without it being stated that fault is required for such liability to arise. This aspect cannot be defined in the abstract; rather, one must turn to criminal doctrine and even constitutional jurisprudence when examining the cases that arise in particular.\n\n12) ARTICLE 82 OF THE CONSULTED DRAFT BILL. This article reforms Article 74 of the Ley Constitutiva de la Caja Costarricense de Seguro Social, obligating all employers and persons who engage totally or partially in independent or salaried activities to be up-to-date with the payment of their obligations, as this constitutes a requirement, among others, for processing the admissibility of any administrative authorization application, and for the registration of any document in the Registro Público Mercantil. The content of the consulted article cannot be unconstitutional, as the legislator is fully empowered to regulate circumstances of convenience and opportunity, such as the establishment of requirements for administrative and registry procedures.\n\n13) ARTICLE 85 OF THE CONSULTED DRAFT LAW. This article adds to Article 3 of the Ley Constitutiva de la Caja Costarricense de Seguro Social, involving specific allocations of funds from Law No. 5662 (Ley de Desarrollo Social y Asignaciones Familiares), to remedy the employer contribution (cuota patronal) for independent workers. The content of the consulted article states: \"... In the case of independent workers whose net income is less than the legal minimum wage and who request their affiliation to the IVM of the CCSS, the State's contribution will be increased in order to partially remedy the absence of the employer contribution. For these purposes, a special permanent program will be created under the charge of the Fondo de Desarrollo Social y Asignaciones Familiares...\". As the consulting parties indicate, what is established in the studied article is an allocation of family allowance funds, a situation that is not contrary to the legislator's power, since, as emerges from the content of Law No. 5662 of December 23, 1974, in its third article, the legislator provided the allocations for those funds, without it being determined that these constituted a numerus clausus. Therefore, if the legislator, by amending the aforementioned law, now determines another —similar— allocation that must be covered by the monies entering the family allowances fund, this cannot be considered excessive or illegitimate action.\n\nThus, the consultation formulated must be resolved in the sense that, regarding what was consulted, the draft law processed under file number No. 13.691 called \"LEY DE PROTECCION AL TRABAJADOR,\" is not unconstitutional.\n\n**Por tanto:**\n\nThe facultative legislative consultation is resolved in the sense that the Draft Law \"LEY DE PROTECCION AL TRABAJADOR\" processed under legislative file No. 13.691, regarding what was consulted, is not unconstitutional. Notify.\n\nR. E. Piza E.\n\nPresidente\n\nLuis Fernando Solano C. Luis Paulino Mora M.\n\nEduardo Sancho G. Carlos M.\n\nArguedas R.
Ana Virginia Calzada M. Adrián Vargas B.
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