Amparo (law)
Encyclopedia
The writ of amparo is a remedy for the protection of constitutional rights, found in certain jurisdictions. In some legal systems, predominantly those of the Spanish-speaking world,
the amparo remedy or action is an effective and inexpensive instrument for the protection of individual rights.
Amparo, generally granted by a supreme
or constitutional court, serves a dual protective purpose: it protects the citizen and his basic guarantees, and protects the constitution itself by ensuring that its principles are not violated by statutes or actions of the state that undermine the basic rights enshrined therein. It resembles, in some respects, constitutional remedies such as the writ of security
available in Brazil
and the constitutional complaint
(Verfassungsbeschwerde) procedure found in Germany
.
In many countries, an amparo action is intended to protect all rights other than physical liberty, which may be protected instead by habeas corpus
remedies. Thus, in the same way that habeas corpus guarantees physical freedom, amparo protects other basic rights. It may therefore be invoked by any person who believes that any of his rights, implicitly or explicitly protected by the constitution (or by applicable international treaties), is being violated.
: the writ of amparo is a Mexican legal procedure to protect human rights
. Of Mexican origin, thus, "Amparo" literally means "protection" in Spanish
. De Tocqueville’s
Democracy in America
had been available in Mexico, in 1837 and its description of judicial review
practice in the U.S. appealed to many Mexican jurists. Mexican justice Manuel Crescencio Rejón, drafted a constitutional provision for his native state, Yucatan
(at that time independent from Mexico), which empowered jurists to protect all persons in the enjoyment of their constitutional and legal rights. This was incorporated in 1847 into national constitution
. The great writ proliferated in the Western Hemisphere
, slowly evolving into various fora. Amparo became, in the words of a Mexican Federal Supreme Court Justice, Mexico’s “task of conveying to the world’s legal heritage that institution which, as a shield of human dignity, her own painful history conceived.”
Amparo's evolution and metamorphosis had been witnessed, for several purposes: "(1) amparo libertad for the protection of personal freedom, equivalent to the habeas corpus writ; (2) amparo contra leyes for the judicial review of the constitutionality of statutes; (3) amparo casacion for the judicial review of the constitutionality and legality of a judicial decision; (4) amparo administrativo for the judicial review of administrative actions; and (5) amparo agrario for the protection of peasants’ rights derived from the agrarian reform process."
Mexico's "recurso de amparo" is found in Articles 103 and 107 of the Mexican Constitution -- the judicial review
of governmental action, to empower state courts to protect individuals against state abuses. Amparo was sub-divided into 5 legal departments: the Liberty Amparo (amparo de libertad) the Constitutionality Amparo (amparo contra leyes) the Judicial or “Cassation” Amparo, aimed at the constitutionality of a judicial interpretation the Administrative Amparo (amparo como contencioso-administrativo); and the Agrarian Amparo (amparo en materia agraria, ejidal y comunal).
legal systems. It is now an extraordinary legal remedy in Bolivia
, Chile
, Costa Rica
, Ecuador
, El Salvador
, Guatemala
, Honduras
, Nicaragua
, Panama
, Paraguay
Peru
, Brazil
and Argentina
.
or injunction
. The decision bars monetary awards and penal provisions except contempt
or declaration of unconstitutionality.
In Chile
, the term recurso de amparo ("amparo remedy") refers to what is known in comparative law
as habeas corpus
. Chile's equivalent of amparo is the recurso de protección ("protection remedy").
the Constitution of 1991 implemented a system named Accion de Tutela (Tutelage action). The legal procedure resembles the Amparo law but is modified to be implemented in instances of imminent risk for any individual within the Colombian population. According to the Constitutional Court (Sentence T-451 of July 10, 1992) whether a right is to be judged as fundamental or not may be determined in a case by case basis; this means that the Constitution acknowledges that it can't be determined what are the corresponding fundamental rights therefore they may not only include the ones implicitly addressed by the Constitution of 1991 in Chapter I Title II.
, a writ of amparo may be filed by any natural or legal person, domestic or foreign, as well by the Public Prosecutor and the Ombudsman, at the Constitutional Court. Its function is to protect the rights enshrined in the constitution-the fundamental rights contained in the Preliminary Title and First Section of Chapter II of Title I, to protect rights recognized in the Articles 14 to 29 of the Constitution and as well as conscientious objection to military service under Article 30.
It is a subsidiary remedy that requires all alternative relevant avenues have been exhausted in ordinary courts before turning to the Constitutional Court.
The writs of amparo and habeas data are prerogative writ
s introduced in the Philippines
to supplement the inefficacy of habeas corpus
(Rule 102, Revised Rules of Court). Amparo means protection, while habeas data
is access to information. Both writ
s were conceived to solve the extensive Philippine extrajudicial killings and forced disappearances since 1999.
On July 16, 2007, Philippine Chief Justice Reynato Puno
and Justice Adolfo Azcuna
officially declared the legal conception of the Philippine writ of amparo – "recurso de amparo", at the historic Manila Hotel
National Summit on Extrajudicial Killings and Enforced Disappearances.
On August 25, 2007, Reynato Puno (at the College of Law of Silliman University
in Dumaguete City) declared the legal conception of amparo's twin, the supplemental Philippine Habeas Data. Puno by judicial fiat proclaimed the legal birth of these twin peremptory writs on October, 2007, as his legacy to the Filipino nation. Puno admitted the inefficacy of habeas corpus, under Rule 102, Rules of Court, since government officers repeatedly failed to produce the body upon mere submission of the defense of alibi.
By invoking the truth, habeas data will not only compel military and government agents to release information about the desaparecidos but require access to military and police files. Reynato Puno's writ of amparo -- Spanish for protection—will bar military officers in judicial proceedings to issue denial answers regarding petitions on disappearances or extrajudicial executions, which were legally permitted in habeas corpus proceedings.
The Supreme Court of the Philippines
announced that the draft guidelines (Committee on Revision of Rules) for the writ of amparo were approved on September 23, to be deliberated by the en banc court on September 25.
, close to the Collectif des Juristes Progressistes Haitiens (Progressive Lawyers' Network), learning from the Filipino experience, are said to be preparing propositions for the Government to introduce a writ of amparo as a safeguard against frequent kidnappings and arbitrary arrests and torture cases.
the amparo remedy or action is an effective and inexpensive instrument for the protection of individual rights.
Amparo, generally granted by a supreme
Supreme court
A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, high court, or apex court...
or constitutional court, serves a dual protective purpose: it protects the citizen and his basic guarantees, and protects the constitution itself by ensuring that its principles are not violated by statutes or actions of the state that undermine the basic rights enshrined therein. It resembles, in some respects, constitutional remedies such as the writ of security
Writ of security
In the law of Brazil, the writ of security is a remedy used to protect individual rights. It resembles in some respects the writ of amparo, , available in other Latin American nations....
available in Brazil
Brazil
Brazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...
and the constitutional complaint
Verfassungsbeschwerde
The constitutional complaint is a remedy found in Germany for protection of constitutional rights. It derives from Article 93 Sec. 1 Nr. 4a of the Basic Law...
(Verfassungsbeschwerde) procedure found in Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
.
In many countries, an amparo action is intended to protect all rights other than physical liberty, which may be protected instead by habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
remedies. Thus, in the same way that habeas corpus guarantees physical freedom, amparo protects other basic rights. It may therefore be invoked by any person who believes that any of his rights, implicitly or explicitly protected by the constitution (or by applicable international treaties), is being violated.
Origins in Mexico
The Mexican amparo has inspired many and served as a model in other judicatures. In the Philippines, Chief Justice Reynato Puno noted that the model for amparo used there was borrowed from MexicoMexico
The United Mexican States , commonly known as Mexico , is a federal constitutional republic in North America. It is bordered on the north by the United States; on the south and west by the Pacific Ocean; on the southeast by Guatemala, Belize, and the Caribbean Sea; and on the east by the Gulf of...
: the writ of amparo is a Mexican legal procedure to protect human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
. Of Mexican origin, thus, "Amparo" literally means "protection" in Spanish
Spanish language
Spanish , also known as Castilian , is a Romance language in the Ibero-Romance group that evolved from several languages and dialects in central-northern Iberia around the 9th century and gradually spread with the expansion of the Kingdom of Castile into central and southern Iberia during the...
. De Tocqueville’s
Alexis de Tocqueville
Alexis-Charles-Henri Clérel de Tocqueville was a French political thinker and historian best known for his Democracy in America and The Old Regime and the Revolution . In both of these works, he explored the effects of the rising equality of social conditions on the individual and the state in...
Democracy in America
Democracy in America
De la démocratie en Amérique is a classic French text by Alexis de Tocqueville. A "literal" translation of its title is Of Democracy in America, but the usual translation of the title is simply Democracy in America...
had been available in Mexico, in 1837 and its description of judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
practice in the U.S. appealed to many Mexican jurists. Mexican justice Manuel Crescencio Rejón, drafted a constitutional provision for his native state, Yucatan
Yucatán
Yucatán officially Estado Libre y Soberano de Yucatán is one of the 31 states which, with the Federal District, comprise the 32 Federal Entities of Mexico. It is divided in 106 municipalities and its capital city is Mérida....
(at that time independent from Mexico), which empowered jurists to protect all persons in the enjoyment of their constitutional and legal rights. This was incorporated in 1847 into national constitution
1824 Constitution of Mexico
The Federal Constitution of the United Mexican States of 1824 was enacted on October 4 of 1824, after the overthrow of the Mexican Empire of Agustin de Iturbide. In the new constitution, the republic took the name of United Mexican States, and was defined as a representative federal republic, with...
. The great writ proliferated in the Western Hemisphere
Western Hemisphere
The Western Hemisphere or western hemisphere is mainly used as a geographical term for the half of the Earth that lies west of the Prime Meridian and east of the Antimeridian , the other half being called the Eastern Hemisphere.In this sense, the western hemisphere consists of the western portions...
, slowly evolving into various fora. Amparo became, in the words of a Mexican Federal Supreme Court Justice, Mexico’s “task of conveying to the world’s legal heritage that institution which, as a shield of human dignity, her own painful history conceived.”
Amparo's evolution and metamorphosis had been witnessed, for several purposes: "(1) amparo libertad for the protection of personal freedom, equivalent to the habeas corpus writ; (2) amparo contra leyes for the judicial review of the constitutionality of statutes; (3) amparo casacion for the judicial review of the constitutionality and legality of a judicial decision; (4) amparo administrativo for the judicial review of administrative actions; and (5) amparo agrario for the protection of peasants’ rights derived from the agrarian reform process."
Mexico's "recurso de amparo" is found in Articles 103 and 107 of the Mexican Constitution -- the judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
of governmental action, to empower state courts to protect individuals against state abuses. Amparo was sub-divided into 5 legal departments: the Liberty Amparo (amparo de libertad) the Constitutionality Amparo (amparo contra leyes) the Judicial or “Cassation” Amparo, aimed at the constitutionality of a judicial interpretation the Administrative Amparo (amparo como contencioso-administrativo); and the Agrarian Amparo (amparo en materia agraria, ejidal y comunal).
Extension to Latin America
Amparo was also legally enshrined in Latin AmericaLatin America
Latin America is a region of the Americas where Romance languages – particularly Spanish and Portuguese, and variably French – are primarily spoken. Latin America has an area of approximately 21,069,500 km² , almost 3.9% of the Earth's surface or 14.1% of its land surface area...
legal systems. It is now an extraordinary legal remedy in Bolivia
Bolivia
Bolivia officially known as Plurinational State of Bolivia , is a landlocked country in central South America. It is the poorest country in South America...
, Chile
Chile
Chile ,officially the Republic of Chile , is a country in South America occupying a long, narrow coastal strip between the Andes mountains to the east and the Pacific Ocean to the west. It borders Peru to the north, Bolivia to the northeast, Argentina to the east, and the Drake Passage in the far...
, Costa Rica
Costa Rica
Costa Rica , officially the Republic of Costa Rica is a multilingual, multiethnic and multicultural country in Central America, bordered by Nicaragua to the north, Panama to the southeast, the Pacific Ocean to the west and the Caribbean Sea to the east....
, Ecuador
Ecuador
Ecuador , officially the Republic of Ecuador is a representative democratic republic in South America, bordered by Colombia on the north, Peru on the east and south, and by the Pacific Ocean to the west. It is one of only two countries in South America, along with Chile, that do not have a border...
, El Salvador
El Salvador
El Salvador or simply Salvador is the smallest and the most densely populated country in Central America. The country's capital city and largest city is San Salvador; Santa Ana and San Miguel are also important cultural and commercial centers in the country and in all of Central America...
, Guatemala
Guatemala
Guatemala is a country in Central America bordered by Mexico to the north and west, the Pacific Ocean to the southwest, Belize to the northeast, the Caribbean to the east, and Honduras and El Salvador to the southeast...
, Honduras
Honduras
Honduras is a republic in Central America. It was previously known as Spanish Honduras to differentiate it from British Honduras, which became the modern-day state of Belize...
, Nicaragua
Nicaragua
Nicaragua is the largest country in the Central American American isthmus, bordered by Honduras to the north and Costa Rica to the south. The country is situated between 11 and 14 degrees north of the Equator in the Northern Hemisphere, which places it entirely within the tropics. The Pacific Ocean...
, Panama
Panama
Panama , officially the Republic of Panama , is the southernmost country of Central America. Situated on the isthmus connecting North and South America, it is bordered by Costa Rica to the northwest, Colombia to the southeast, the Caribbean Sea to the north and the Pacific Ocean to the south. The...
, Paraguay
Paraguay
Paraguay , officially the Republic of Paraguay , is a landlocked country in South America. It is bordered by Argentina to the south and southwest, Brazil to the east and northeast, and Bolivia to the northwest. Paraguay lies on both banks of the Paraguay River, which runs through the center of the...
Peru
Peru
Peru , officially the Republic of Peru , is a country in western South America. It is bordered on the north by Ecuador and Colombia, on the east by Brazil, on the southeast by Bolivia, on the south by Chile, and on the west by the Pacific Ocean....
, Brazil
Brazil
Brazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...
and Argentina
Argentina
Argentina , officially the Argentine Republic , is the second largest country in South America by land area, after Brazil. It is constituted as a federation of 23 provinces and an autonomous city, Buenos Aires...
.
Argentina
Amparo in Argentina is a limited, summary, emergency procedure, and merely supplementary, requiring previous exhaustion of administrative remedies before rendition of judgment of mandamusMandamus
A writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...
or injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
. The decision bars monetary awards and penal provisions except contempt
Contempt
Contempt is an intensely negative emotion regarding a person or group of people as inferior, base, or worthless—it is similar to scorn. It is also used when people are being sarcastic. Contempt is also defined as the state of being despised or dishonored; disgrace, and an open disrespect or willful...
or declaration of unconstitutionality.
Chile
- See :es:Recurso de Protección
In Chile
Chile
Chile ,officially the Republic of Chile , is a country in South America occupying a long, narrow coastal strip between the Andes mountains to the east and the Pacific Ocean to the west. It borders Peru to the north, Bolivia to the northeast, Argentina to the east, and the Drake Passage in the far...
, the term recurso de amparo ("amparo remedy") refers to what is known in comparative law
Comparative law
Comparative law is the study of differences and similarities between the law of different countries. More specifically, it involves study of the different legal systems in existence in the world, including the common law, the civil law, socialist law, Islamic law, Hindu law, and Chinese law...
as habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
. Chile's equivalent of amparo is the recurso de protección ("protection remedy").
Colombia
In ColombiaColombia
Colombia, officially the Republic of Colombia , is a unitary constitutional republic comprising thirty-two departments. The country is located in northwestern South America, bordered to the east by Venezuela and Brazil; to the south by Ecuador and Peru; to the north by the Caribbean Sea; to the...
the Constitution of 1991 implemented a system named Accion de Tutela (Tutelage action). The legal procedure resembles the Amparo law but is modified to be implemented in instances of imminent risk for any individual within the Colombian population. According to the Constitutional Court (Sentence T-451 of July 10, 1992) whether a right is to be judged as fundamental or not may be determined in a case by case basis; this means that the Constitution acknowledges that it can't be determined what are the corresponding fundamental rights therefore they may not only include the ones implicitly addressed by the Constitution of 1991 in Chapter I Title II.
Spain
Under the current Spanish Constitution of 1978Spanish Constitution of 1978
-Structure of the State:The Constitution recognizes the existence of nationalities and regions . Preliminary Title As a result, Spain is now composed entirely of 17 Autonomous Communities and two autonomous cities with varying degrees of autonomy, to the extent that, even though the Constitution...
, a writ of amparo may be filed by any natural or legal person, domestic or foreign, as well by the Public Prosecutor and the Ombudsman, at the Constitutional Court. Its function is to protect the rights enshrined in the constitution-the fundamental rights contained in the Preliminary Title and First Section of Chapter II of Title I, to protect rights recognized in the Articles 14 to 29 of the Constitution and as well as conscientious objection to military service under Article 30.
It is a subsidiary remedy that requires all alternative relevant avenues have been exhausted in ordinary courts before turning to the Constitutional Court.
The Philippines
- Main article: Amparo and habeas data in the Philippines
The writs of amparo and habeas data are prerogative writ
Prerogative writ
Prerogative writs are a class of writs which originate from English law. Originally they were available only to the Crown, but later they were made available to the monarch's subjects through the courts.The prerogative writs are:*certiorari...
s introduced in the Philippines
Philippines
The Philippines , officially known as the Republic of the Philippines , is a country in Southeast Asia in the western Pacific Ocean. To its north across the Luzon Strait lies Taiwan. West across the South China Sea sits Vietnam...
to supplement the inefficacy of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
(Rule 102, Revised Rules of Court). Amparo means protection, while habeas data
Habeas Data
Habeas data is a writ and constitutional remedy available in certain nations. The literal translation from Latin of habeas data is “[we command] you have the data”...
is access to information. Both writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
s were conceived to solve the extensive Philippine extrajudicial killings and forced disappearances since 1999.
On July 16, 2007, Philippine Chief Justice Reynato Puno
Reynato Puno
Reynato Puno y Serrano was the 22nd Chief Justice of the Supreme Court of the Philippines. Appointed on December 8, 2006 by President Gloria Macapagal-Arroyo, he was the 22nd person to serve as Chief Justice...
and Justice Adolfo Azcuna
Adolfo Azcuna
Adolfo S. Azcuna is a Filipino jurist who served as an Associate Justice of the Supreme Court of the Philippines from 2002 to 2009. He was appointed to the Court by President Gloria Macapagal-Arroyo on October 24, 2002...
officially declared the legal conception of the Philippine writ of amparo – "recurso de amparo", at the historic Manila Hotel
Manila Hotel
The Manila Hotel is a 570-room, five star hotel in Manila, Philippines, located in the heart of the Manila Bay area. The Manila Hotel is the oldest premiere hotel in the Philippines, built in 1909 to rival Malacañang Palace, the official residence of the President of the Philippines, and opened in...
National Summit on Extrajudicial Killings and Enforced Disappearances.
On August 25, 2007, Reynato Puno (at the College of Law of Silliman University
Silliman University
Silliman University is a private research university located in Dumaguete, Philippines. Established in 1901 as Silliman Institute by the Presbyterian Board of Foreign Missions, it was the first American private school to be founded in the country. The University is named after Dr...
in Dumaguete City) declared the legal conception of amparo's twin, the supplemental Philippine Habeas Data. Puno by judicial fiat proclaimed the legal birth of these twin peremptory writs on October, 2007, as his legacy to the Filipino nation. Puno admitted the inefficacy of habeas corpus, under Rule 102, Rules of Court, since government officers repeatedly failed to produce the body upon mere submission of the defense of alibi.
By invoking the truth, habeas data will not only compel military and government agents to release information about the desaparecidos but require access to military and police files. Reynato Puno's writ of amparo -- Spanish for protection—will bar military officers in judicial proceedings to issue denial answers regarding petitions on disappearances or extrajudicial executions, which were legally permitted in habeas corpus proceedings.
The Supreme Court of the Philippines
Supreme Court of the Philippines
The Supreme Court of the Philippines is the Philippines' highest judicial court, as well as the court of last resort. The court consists of 14 Associate Justices and 1 Chief Justice...
announced that the draft guidelines (Committee on Revision of Rules) for the writ of amparo were approved on September 23, to be deliberated by the en banc court on September 25.
Haiti
Jurists in HaitiHaiti
Haiti , officially the Republic of Haiti , is a Caribbean country. It occupies the western, smaller portion of the island of Hispaniola, in the Greater Antillean archipelago, which it shares with the Dominican Republic. Ayiti was the indigenous Taíno or Amerindian name for the island...
, close to the Collectif des Juristes Progressistes Haitiens (Progressive Lawyers' Network), learning from the Filipino experience, are said to be preparing propositions for the Government to introduce a writ of amparo as a safeguard against frequent kidnappings and arbitrary arrests and torture cases.