Bertoldo’s Court: Constitutional Delegation in the Design of Judicial Institutions

Abstract

The Chilean Constitutional Convention will have to design multiple novel and complex institutions, many of them having a judicial character. Within this process, this essay suggests that regarding these judicial institutions, the Convention should endeavor to design them in a very detailed way, to avoid excessive delays or manipulations from Parliamentarian majorities. In the Italian Constitution of 1948, the vagueness on the regulation of the Constitutional Court led to delays in its implementation, dominated by capture attempts from the governing party. In the Argentinian constitutional reform of 1994, the deficient regulation of the Judiciary Council allowed that almost all governments attempted to or were able to change its composition to increase their political control over it. In the Chilean Constitution of 1925, the skimpy regulation of the administrative courts caused that, straightforwardly, they were never created. Even though these defects in the constitutional regulation are not the only factor that explains the failure of these institutions, they nevertheless posed difficulties to the coordination among political participants, and they provided excuses to the ones who did not want to implement them.