Column written by Esteban Carmona for El Mercurio Legal.

On April 4, the Plenary of the Expert Commission of the new constitutional process approved, in general and by unanimous vote of its members, Chapter 8 of the preliminary draft of the law that intends to regulate the conformation and competences of the Constitutional Court (in said text, "Constitutional Court").

Regarding the competencies, the preliminary draft proposes to maintain in that body the action of inapplicability for unconstitutionality. In general terms, this action would continue to be a concrete control of the law, in which the parties or the judge may request that the Constitutional Court resolve whether the application of a precept - for a specific case - is contrary or not to the Constitution. The novelty is that the judge or court of the pending proceeding would be empowered to issue a report in such procedure, particularly on "the decisive application" of the challenged precept. In addition, they could be heard at any stage of the constitutional procedure, a relevant aspect, for example, to resolve the suspension of the pending procedure.

However, for an analysis of the relevance and sufficiency of the proposal, it should be borne in mind:

1. If we take a quick look at the numbers, the exercise of this action at the instance of judges of the pending management is exiguous with respect to the universe of requirements deducted annually.

According to the data provided by the President of the Constitutional Court in the last public account, during the year 2022, out of 1,194 inapplicability procedures, only three were initiated by presentation of the judiciary (0.25%). Similar proportion was verified in previous years, since in 2020, out of a total of 1,903 inapplicabilities, 18 were filed by judges or courts (0.94%) and in 2021 there were only 10 out of 2,606 (0.38%).

2. The power that the Fundamental Charter confers on the judiciary is a corollary of our concentrated system of control of constitutionality. That is to say, the Constitutional Court is the organ of the State in charge of ensuring that the laws conform to the content of the Fundamental Charter, which is why the judge in the pending proceedings cannot fail to apply a law, even when the conformity of a precept with the Constitution - for a specific case - seems doubtful to him. Instead, and as was seen, the judiciary has also been endowed with legitimacy, whose requirement, in accordance with the respective organic law, is of simple configuration, since it takes the form of an ex officio.

3. For its part, the legitimization of the judge or court of the pending action also facilitates the "dialogue" between judiciaries, an axiom of modern democracies whereby institutions exchange positions with a view to resolving a relevant legal problem.

From the foregoing, the innovation is on the right track if its purpose is to strengthen the role of the court of pending management in a system of concentrated control, to encourage its participation in questions of constitutionality that arise in the processing of ordinary or special proceedings and to make possible the dialogue between judiciaries.

However, this innovation must be accompanied by protective elements for the judiciary itself. That is, if the judge is not only to activate the inapplicability procedure, but also to report on the "decisive application" of the challenged provision, including the possibility of being heard, it must be ensured -constitutionally or legally- that the exercise of this power will not generate any inability to continue hearing the case. The inclusion of a sentence such as "the intervention of the judge or court shall not disqualify him from continuing to hear the case" could be useful for the purposes indicated.

It should not be lost sight of the fact that a report on the decisive nature of the precept whose inapplicability is requested will require contextual explanations that reveal the particular problems of constitutionality of the rule. In many cases, it will be difficult to strip such an explanation of elements of judgment or of a legal position on the matter.

Such a shielding could be one of the solutions to the scarce participation of judges or courts, maintaining -of course- the simplicity of communications and procedures so that this is not an obstacle to the work they perform. Therefore, this aspect should be taken into account in the drafting of the normative proposal, either in the work of the Expert Commission itself or in the subsequent discussion of the Constitutional Council.