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.

Judicial dialogue in Europe. Between harmony and cacophony on the example of personal data protection.

Between 2008 and 2015 a dozen of the European constitutional courts, as well as the UE Court of Justice, assessed legal provisions on data retention. Judiciary on this pan-European mass-surveillance measure poses a unique research opportunity. We argue that ad hoc confederation of constitutional courts within the EU has been established despite lack of regulations enforcing such cooperation. It was caused by the introduction of a legal mechanism interfering with fundamental rights, specificity of the EU legal order which resembles a system of connected vessels and one common legal problem of a major social significance. On the basis of this unique maze of judgments, we identified three cooperation models that those constitutional courts took. The keystone of those models was their approach towards the European Court of Human Rights and the Court of Justice of the European Union. In our presentation, we will discuss how this unique dialogue of courts proceeded and what its effects were.

Judicial Dialogue or Monologue? Exploring Noncompliance with Judicial Rulings

Recent decades have witnessed the mushroom of constitutional courts around the globe. Nevertheless, constitutional interpretation is a politically risky enterprise: some constitutional courts encounter vehement political backlash and have been dismantled. Even for those that survive the political attack, not all courts are equally successful in checking the political branches and protecting fundamental rights. Using the Taiwan Constitutional Court as an example, this paper suggests that there are three dimensions of failure: 1) judicial decisions are simply ignored by the political branches as if it did not exist; 2) judicial decisions are not implemented in time; 3) judicial decisions are implemented in a wrong way that is not what the Constitutional Court demanded or expected. The fact that judicial decisions are not always faithfully implemented by the political branches further casts doubt on, among other things, the effectiveness of judicial dialogue.

Dialogic Constitutionalism: An Analysis of its Conditions of Appearance

The aim of this work is to examine the conditions of appearance of the dialogic constitutionalism. The thesis that is desired to defend is that the reason because the dialogic constitutionalism emerges at the end of the 20th century is double. On one hand, as a result from structural objections led to constitutional jurisdiction. On the other hand, as a result from the deliberative turn of democracy, specifically for its theoretical contributions to the development of dialogic constitutionalism and for its limitations in order to approach to those objections to the courts. This paper proposes three specific argumentative stages. Firstly, systematise structural objections that are led to constitutional jurisdiction. Secondly, examine the most outstanding links of deliberative democracy. Thirdly, reconstruct the structural objections that are led to constitutional jurisdiction and the deliberative turn of the democracy as conditions of appearance of the dialogic constitutionalism.

Forced dialogue or overlapping monologues? The override of Brazilian Supreme Court’s decisions by the Congress through constitutional amendments

The Brazilian system of judicial review confers broad powers to the Federal Supreme Court regarding the definition of the meaning of the Constitution. As a reaction to this strong model of control, the National Congress has adopted as a reaction strategy the approval of constitutional amendments as a way of overriding judicial decisions that strike down legislation. The article aims to examine this phenomenon based on the theory of constitutional dialogues developed in Canadian law, using as theoretical framework the ideas of Peter Hogg and Allison Bushell, Kent Roach and Luc Tremblay, to verify if it is possible to consider this interaction between Legislative and Judiciary as an authentic constitutional dialogue. The method used was the bibliographical review, the case study, the analysis of jurisprudence and the manifestations of the parliamentarians in the National Congress. The study concludes that in the cases analyzed there was no effective dialogue, but rather an overlap of monologues among the actors involved, since the reasons of the Federal Supreme Court in general are not taken into account by the National Congress.