Constitutional dialogue between judicial branches: removing obstacles for concrete review of constitutionality in Chile

New and increasingly intense jurisdictional disputes arise between the Constitutional Court (CC) and the Supreme Court (SC) in Chile. In 2005, a constitutional amendment took away from the SC the concrete review of constitutionality, i.e., the constitutional review of legislation in a concrete case, with effect only for the parties of the case. The amendment made the CC the see of the concrete review, thus making it the single most relevant organ in the judicial review of legislation.

Because the CC only decides on whether the legal provision is constitutional – the actual case being still decided by ordinary courts – the actual design has produced friction between the CC and the SC. That happens when they disagree on the relevance of the legal provision declared inapplicable on grounds of unconstitutionality by the CC.

Dialogic constitutionalism may illuminate and mitigate this problem. We argue that the corresponding provisions of the Constitution and the organic law of the CC should open a procedural opportunity for these branches to dialogue procedurally. If the ordinary judge or court is heard at the moment when the CC decides on the admissibility of a concrete constitutional claim, that decision will consider and may reflect the opinion of ordinary courts, thus reducing friction after the decision. As a counterpart, we propose to make binding the CC decision on the decisiveness issue. That means the Supreme Court should consider the legal provision reviewed, and eventually struck down because its unconstitutionality, as decisive in the lawsuit.