In most legal systems of theSpanish-speaking world, thewrit ofamparo ("writ of protection"; also calledrecurso de amparo, "appeal for protection", orjuicio de amparo, "judgement for protection") is aremedy for the protection ofconstitutional rights, found in certainjurisdictions.[1] Theamparo remedy or action is an effective and inexpensive instrument for the protection ofindividual rights.[2]
Amparo, generally granted by asupreme orconstitutional court, serves a dual protective purpose: it protects the citizen and their 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.[citation needed] It resembles, in some respects, constitutional remedies such as thetutela available inColombia, thewrit of security (Mandado de Segurança) inBrazil and theconstitutional complaint (Verfassungsbeschwerde) procedure found inGermany.
In many countries, anamparo action is intended to protect all rights that are not protected specifically by the constitution or by a special law with constitutional rank, such as theright to physical liberty, which may be protected instead byhabeas corpus remedies. Thus, in the same way thathabeas corpus guarantees physical freedom, and the "habeas data" protects the right of maintaining the integrity of one's personal information, theamparo 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, another law (or by applicable international treaties), is being violated.
The Mexicanamparo has inspired many and served as a model in other judicatures. In the Philippines, Chief Justice Reynato Puno noted that the model foramparo used there was borrowed fromMexico: the writ ofamparo is a Mexican legal procedure to protecthuman rights.[3]Amparo literally means "protection" inSpanish.[4]De Tocqueville'sDemocracy in America became available in Mexico in 1837, and its description ofjudicial review practice in the U.S. appealed to many Mexicanjurists.[5] Mexican justiceManuel Crescencio Rejón, drafted a constitutional provision for his native state,Yucatán (threateningindependence from Mexico), which empowered jurists to protect all persons in the enjoyment of their constitutional and legal rights. This was incorporated in 1847 into thenational constitution.[6][7] The great writ proliferated in theWestern 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 de 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-casación 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 ejidal o comunal 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 theMexican Constitution —thejudicial review of governmental action—to empower state courts to protect individuals against state abuses.Amparo was sub-divided into five legal departments:
Amparo was also legally enshrined inLatin American legal systems. It is now an extraordinary legal remedy inBolivia,Chile,Costa Rica,Ecuador,El Salvador,Guatemala,Honduras,Nicaragua,Panama,Paraguay,Peru,Brazil andArgentina.
Amparo in Argentina is a limited, summary, emergency procedure, and merely supplementary, requiring previous exhaustion of administrative remedies before rendition of judgment ofmandamus orinjunction. The decisionbars monetary awards and penal provisions exceptcontempt or declaration of unconstitutionality.[12] The 1994 constitution establishes the right toamparo inarticle 43.
InChile, the termrecurso de amparo ("amparo remedy") refers to what is known incomparative law ashabeas corpus. Chile's equivalent ofamparo is therecurso de protección ("protection remedy").
InColombia theConstitution of 1991 implemented a system namedAcción de tutela (Tutelage action). The legal procedure resembles theAmparo 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.
Jurists inHaiti, close to theCollectif 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 ofamparo as a safeguard against frequent kidnappings and arbitrary arrests and torture cases.
Universal Declaration of Human rights (UDHR)[13]The inclusion of human rights in theUDHR is largely attributable to Latin America andNGOs forcing its inclusion into theCharter of the United Nations, at theSan Francisco Conference, after theGreat Powers atDumbarton Oaks had made only one reference to human rights. When the UDHR was negotiated, Mexico successfully hadamparo included in the UDHR, as Article 8.
"Article 8 Everyone has theright to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law." The right to aneffective remedy is included in theInternational Covenant on Civil and Political Rights (ICCPR) in its article 2, Paragraph 3:
3. Each State Party to the present Covenant undertakes:(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.
This is usually referred to as the "substantive" procedural right, the flipside of the "fair procedure" contained in Article 14 of ICCPR.[In the USA the two together make up "due process"]
States ratifying ICCPR "undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant." (Article 2)
Therefore, when there is a gap between a state'samparo remedies and ICCPR, the state is obliged to adaptamparo up to ICCPR's minimum standards, unless there is a legitimate reservation when ratifying, or what is known as derogation, or limitation or restriction.
Limitations/restrictions must be authorised by the article itself: SeeSiracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights Annex, UN Doc E/CN.4/1984/4 (1984)
Under the currentSpanish Constitution of 1978, a writ ofamparo may be filed by any natural or legal person, domestic or foreign, as well by thePublic Prosecutor and theOmbudsman, at theConstitutional 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 theConstitutional Court.
The writs ofamparo andhabeas data areprerogative writs introduced in thePhilippines to supplement the inefficacy ofhabeas corpus (Rule 102, Revised Rules of Court).Amparo means protection, whilehabeas data is access to information. Bothwrits were conceived to solve the extensive Philippine extrajudicial killings andforced disappearances since 1999.[14]
On July 16, 2007, Philippine Chief JusticeReynato Puno and JusticeAdolfo Azcuna officially declared the legal conception of the Philippine writ ofamparo – "recurso de amparo", at the historicManila Hotel National Summit on Extrajudicial Killings and Enforced Disappearances.[15][16]
On August 25, 2007, Reynato Puno (at the College of Law ofSilliman University inDumaguete) declared the legal conception ofamparo's twin, the supplemental Philippine Habeas Data. Puno by judicial fiat proclaimed the legal birth of these twin peremptory writs in 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 theright to truth, habeas data will not only compel military and government agents to release information about thedesaparecidos but require access to military and police files. Reynato Puno'swrit of amparo—Spanish for protection—will bar military officers in judicial proceedings to issue denial answers regarding petitions on disappearances orextrajudicial executions, which were legally permitted in habeas corpus proceedings.[17]
TheSupreme 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 theen banc court on September 25.[18]
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