The writ of amparo (also called recurso de amparo or juicio de 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,[1] the amparo remedy or action is an effective and inexpensive instrument for the protection of individual rights.[2]
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.
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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 Mexico: the writ of amparo is a Mexican legal procedure to protect human rights.[3] Of Mexican origin, thus, "Amparo" literally means "protection" in Spanish.[4] 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.[5] 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.[6][7] 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.”[8][9]
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." [10]
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:
Amparo was also legally enshrined in Latin America 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.
Amparo in Argentina is a limited, summary, emergency procedure, and merely supplementary, requiring previous exhaustion of administrative remedies before rendition of judgment of mandamus or injunction. The decision bars monetary awards and penal provisions except contempt or declaration of unconstitutionality.[12]
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").
In Colombia 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.
Under the current Spanish Constitution of 1978, 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 writs 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 writs were conceived to solve the extensive Philippine extrajudicial killings and forced disappearances since 1999.[13]
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.[14][15]
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.[16]
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.[17]
Jurists in Haiti, 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.
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