2016 Global Review of Constitutional Law

constitution-making debate, the CC’s preventive
(ex-ante) judicial power and the
CC’s justices’ appointment mechanisms
have been put into question.
THE CONSTITUTION AND THE
COURT
The Chilean CC was first created in 1970
through a reform to the 1925 Constitution intended
to establish an arbiter who could protect
the legislative powers of the President. 4
The CC closed its doors after the events
of 1973. The 1980 Constitution—enacted
during the Pinochet regime—reestablished
the CC with a new institutional design.
In addition to a few ancillary powers, the
1980 Constitution gave the CC an ex-ante—
or preventive—judicial review power over
legislation. At the same time, the Supreme
Court had a weak ex-post judicial review
power, which allowed the Court to deny the
applicability (inaplicabilidad) of specific
pieces of legislation that conflicted with the
Constitution. The Supreme Court’s decisions
in this matter lacked formal precedential effect,
so judges could still use and apply the
unconstitutional legal provision in other cases.
The CC was not authorized to review legislative
norms after their promulgation. The
CC could review legislation when the President,
either House of the Congress, the Senate,
or a fourth of the members of the House
or the Senate submitted a petition to the CC
before its promulgation. The CC could also
review legislation in an ex-ante procedure
when the subject matter of the specific legislative
bill was “organic”—the Constitution
provides a list of “organic” matters, generally
associated with the regulation of key institutions
such as the Congress and the Electoral
Court. The CC could also review administrative
regulations enacted by the President, but
the deadline to submit the case to the CC was
only for thirty days after the official gazette
(Diario Oficial) published the regulation.
The 1981-2005 CC played a modest role in
the constitutional system, and it was conceived
as a deferential court, 5 although there
were exceptional rulings with important consequences.
6 Also, the CC decided interbranch
conflicts that helped to define the President’s
regulatory powers. 7 Between 1981 and 2005,
the CC ruled, on average, nearly 18 decisions
per year. 8 This number changed drastically
after the 2005 constitutional reform. Between
2005 and 2014, the CC released an average of
109 decisions per year.
The 2005 reform was the result of a broad
political agreement between President Lagos’s
administration and the opposition. It
was intended to put an end to the transition
to democracy by eliminating the so-called
“authoritarian enclaves,” such as the powers
of the National Security Council and the
existence of non-elected Senators. The 2005
reform was also an opportunity to modify
many of the 1980 Constitution’s institutional
arrangements. Regarding the CC, the 2005
reform changed the appointment mechanisms
and the tenure of the justices, who
now serve for a non-renewable nine-year
term. The President appoints three judges to
the CC, each House of the Congress appoints
two judges, and the Supreme Court appoints
three judges, for a total of ten CC judges.
Following the 2005 reform, the CC kept
the powers that the original 1980 Constitution
established, and was granted new ones.
Among the new powers, the reform transferred
the Supreme Court’s ex-post judicial
review power (inaplicabilidad) to the CC, 9
and added an abstract power to eliminate
specific legislative provisions when the CC
justices achieve a supermajority of eight
(out of ten) judicial votes. 10 While legal
practitioners broadly use the inaplicabilidad
mechanism, the ex-post abstract judicial review
power is rarely used, arguably because
the ex-post abstract review power requires a
high judicial supermajority. 11
In 2016, the CC released 91 decisions and
dismissed 103 cases by enacting inadmisibilidad
resolutions. The CC enacts inadmisibilidad
resolutions when the claim has a
procedural or formal flaw that prevents the
CC from processing the case. 58 out of the
91 decisions were inaplicabilidad cases, and
there was only one ruling about an ex-post
4
About the creation of the CC, and particularly about its power to declare the inapplicability of legal provisions, see the explanation by Iván Aróstica, ‘Sanciones
Y Restricciones Administrativas En Un Entorno de Leyes Compendiosas’ (2016) 9 Derecho Público Iberoamericano 13, 20–26. About the 1970 CC,
see Enrique Silva C., El Tribunal Constitucional de Chile (1971-1973), vol 38 (second edition (2008), Cuadernos del Tribunal Constitucional 1977); Sergio
Verdugo, ‘Birth and Decay of the Chilean Constitutional Tribunal (1970–1973). The Irony of a Wrong Electoral Prediction’ (2017) 15 International Journal of
Constitutional Law.
5
Javier Couso, ‘The Politics of Judicial Review in Chile in the Era of Democratic Transition, 1990-2001’ (2003) 10 Democratization 70, 76. Javier Couso,
‘Models of Democracy and Models of Constitutionalism: The Case of Chile’s Constitutional Court, 1970-2010’ (2011) 89 Texas Law Review 1517, 1533–
1534.
6
See, for example, the CC decisions regarding the implementation of a competitive plebiscite and the establishment of the Electoral Court. See, for instance,
Eugenio Valenzuela, Contribución Del Tribunal Constitucional a La Institucionalización Democrática, vol 30 (Tribunal Constitucional 2003).
7
Druscilla L Scribner, ‘Distributing Political Power: The Constitutional Tribunal in Post-Authoritarian Chile’ in Diana Kapiszewski, Gordon Silverstein, and
Robert A Kagan (eds), Consequential Courts. Judicial Roles in Global Perspective (Cambridge University Press 2013).
8
We took all the statistics quoted here and below from http://www.tribunalconstitucional.cl/estadisticas [accessed in March 2017].
9
There was a relative scholarly consensus regarding the Supreme Court’s performance in using the inaplicabilidad. Scholars found that the Supreme Court
formalism and deferential attitude prevented it from developing a relevant jurisprudence, failing in its function. See, for instance, Gastón Gómez, ‘La Jurisdicción
Constitucional: Funcionamiento de La Acción O Recurso de Inaplicabilidad, Crónica de Un Fracaso’ (2003) 3 Foro Constitucional Iberoamericano.
10
An examination of this topic is provided by Marisol Peña, ‘Inaplicabilidad por inconstitucionalidad: reciente jurisprudencia del tribunal constitucional chileno’
(2008) Estudios en homenaje a Héctor Fix-Zamudio, 727-731.
11
The inaplicabilidad claim can be filed by private parties that are involved in another judicial procedure of any other court, or by any judge that is hearing a
case where she is supposed to apply a legal provision that could be contrary to the Constitution. Within the inaplicabilidad, the CC’s jurisdiction consists of
reviewing whether an application of the contested legal provision violates the Constitution or not. If the CC declares that the legal provision should be used,
the case goes back to the court where the case initiated, and that court is obliged to solve the case without using the specific legal provision that the CC
ruled unconstitutional.
48 | I•CONnect-Clough Center