Constitutional Review in Chile Revisited: A Revolution in the Making

Abstract

The purpose of this article is to present the main developments of Chilean constitutional law during recent times, specifically regarding the historical evolution of the constitutional review of statutes. This article advances the thesis that the latest trajectory of constitutional review in Chile shows that the Chilean constitutionality control system has advanced far from peacefully, from a diffuse review system pivoting around the Supreme Court of Justice toward a concentrated constitutional review scheme characterized by the primacy of the Constitutional Tribunal. Accordingly, the paper will review: (i) the main differences between civil and common law systems concerning judicial review; (ii) the historical evolution of the constitutionality control in that country before and after the creation of the Constitutional Tribunal in 1970; (iii) the main changes introduced by the constitutional amendment of 2005 to the functions and prerogatives of the Chilean Constitutional Tribunal; (iv) the juridical conundrums arising from writs of inapplicability, specifically the application of an “abstract control” instead of “a concrete control”; and (v) to illustrate the provocative title of this article, this paper will examine the ongoing conflicting situations that have arisen between the Supreme Court of Justice and the Constitutional Tribunal focusing on the most important cases dealing with pressing constitutional issues in that country.