After All, What Is a Dialogue?

In this chapter, the notion of constitutional dialogues on constitutionalism’s sensi­tive issues has been discussed, like in the case of fundamental rights. However, the nature of these dialogues has not been outlined, in order to explain what is the meaning that this expression would comprehend.

It is believed that the concept of dialogue that better falls in line with the exposed normative argument involves a broad meaning, as any manner of interaction (in this case, among different political institutions). Therefore, the purpose is to facilitate the presentation of distinct viewpoints regarding the same constitutional issue, given the several structuring logics and the operation of the referred institutions.

This way, the pursuit of a consensus is not the central object of the dialogue as understood here, even though the normative argument does not condemn it either as something perverse to the broad proposed model. The convergence of comprehen­sion (consensus) would only be harmful, therefore, in case where it occurred on a regular basis and, furthermore, represented a culture of deference of one institution over the other, as the patterns criticized by Gardbaum (2010) when analyzing the practical experience of abstention in using the Canadian notwithstanding clause. In this case, the defended normative argument loses all its force, considering that the interchange of distinct comprehensions on the same constitutional issue would not take place.

It is pointed out, therefore, in reference to the consensus issue, that the deference of the Legislative to a judicial decision does not necessarily mean, under this broad perspective, a denial for dialogue. In the understanding of Hogg and Bushell (1997, 82) parliament’s silence after a manifestation of Judiciary might, for instance, be configured as a dialogue. As seen before, the preparation of a consensus is not a possibility excluded by the defended argument.

Finally, it is important to point out that a constitutional dialogue is possible, not only when there is the possibility of a reversal, alteration or challenge of the judicial decision by the means of a legislative process through a simple majority quorum, as believed by Hogg and Bushell (1997, 80). In this sense, the meaning of dialogue as something broad - in other words, any possible constitutional interaction among the institutions - does not entail structural restrictions of large dimension to the possi­ble constitutional model type where the dialogue could take place.

Therefore, although structural issues is one of the factors (not the only one) that might impact the capacity of constitutional¹¹ dialogues, some types of dialogue, in this broader conception, shall always exist in any constitutional framework where there is the separation of powers. For this reason, “in the separation of powers, the interaction is unavoidable”^{[236] [237] (Mendes 2011, 211).}

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