José Maria Serna de la Garza
- Amparo — Due process
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
A. Origins and Characteristics of the Writ of Amparo
1. The writ of amparo, as developed in Mexico since the mid-19th century, responds to the idea on the necessity to have a mechanism to control the constitutionality of acts and resolutions of the diverse branches of government. Thus, the function of the writ of amparo is to give persons (both individuals and juridical persons) an instrument to challenge acts of authorities (including administrative, judicial and legislative acts), for being contrary to the fundamental rights contained in the Constitution. Different from the ‘Spanish model’, which granted the power to exercise that control to the legislative branch of government itself, the writ of amparo followed the ‘American model’, which saw courts as the entities that should be the ‘guardian’ of the constitution.
2. Indeed, professor Héctor Fix Zamudio has explained that the writ of amparo was influenced by the American model of judicial review, but also by the Spanish and the French legal traditions (Fix Zamudio (2003) 796). According to this author, the creators of the writ of amparo took into account judicial review as it was explained by Alexis de Tocqueville in his book La Démocratie en Amérique (1835). In addition, Spanish influence can be seen in the fact that the very term ‘amparo’ comes from a procedural instrument that existed in Medieval Spain similar to habeas corpus; while French influence appears in one of the later developments of amparo in Mexico: when it is used as ‘cassation’ to challenge the legality of decisions rendered by state courts, before federal courts (see also judicial systems in federal systems). Thus, the writ of amparo results from a mixture of legal traditions that contributed to create the Mexican institution that has served as a mechanism for controlling the constitutionality of acts and resolutions of all public agencies (Fix Zamudio (2003) 796–798).
3. Manuel Crescencio Rejón, introduced his version of the writ of amparo in the Constitution of the State of Yucatán of 31 March 1841; and it was subsequently taken to the federal level, especially after the proposal of Mariano Otero, who played a central role in drafting the so-called Acta Constitucional y de Reformas of 1847 (which basically introduced several reforms and additions to Mexico’s Constitution of 1824). Eventually, the basic features of the writ of amparo formed part of Mexico’s federal Constitution of 1857 (Arts 101 and 102); passing later on to Art. 107 of the Constitution of Mexico of 5 February 1917 (Mex), which today is still in force.
2. Meaning, Functions and Characteristics
4. The meaning of amparo is ‘protection’. As stated by Professor Fix Zamudio, this complex institution combines several procedural instruments or remedies that have different functions:
(a) protection of fundamental rights;
(b) testing allegedly unconstitutional statute laws;
(c) contesting judicial decisions;
(d) petitioning against official administrative acts and resolutions; and
(e) protection of social rights of peasants subject to Mexico’s agrarian reform legal regime (Fix Zamudio (2003) 18).
5. It must be added that paramount in its function for the protection of human rights, is its function as habeas corpus: every person who believes that he/she or another is suffering illegal imprisonment or restraint of his/her liberty is entitled to it; and the action seeks a judicial order directed to the detainer, to present the person before a judge and to give an explanation as to the cause of the detention (in the understanding that if the detainer has acted beyond his/her authority, the person must be released).
6. Tena Ramírez has argued that the writ of amparo has had three main characteristics: firstly, the protection of the constitution corresponds to the judicial branch and not to the political branches of government; secondly, judicial intervention in protection of the constitution can take place only as a result of the petition of a person whose constitutional rights have allegedly been infringed; and thirdly, a declaration of unconstitutionality in amparo benefits only in the concrete case, to the party that obtained it (Tena 524).
7. The latter characteristic is the so-called inter partes effect of a decision rendered as a result of an amparo proceeding (it is also identified as the principle of ‘relativity’ of a decision in amparo). The reasons for this principle can be found in the fact that the creators of this institution were trying to strike a balance between the authority of the legislative branch of government as representative of the will of the people, and the need to establish a mechanism of controlling the constitutionality of legislation passed by Congress. The creator of the writ of amparo, Manuel Crescencio Rejón, was convinced that courts should have this power, but he was also worried about the impact that such power would have on the legislative branch. The solution was to be found in the circumstance that the power to invalidate legislation would be limited to particular cases. Judgments would only benefit a personal interest, thus the legislative power would be offended only in a tangential way: the statute would not be destroyed, but its moral force would decrease, without suspending its formal validity. In this vision, eventually, a statute declared unconstitutional by courts would die little by little by reiterated judicial decisions (Suprema Corte de Justicia 63–65).
8. Today, the principle of relativity of judgments in amparo, which is also known as the ‘Otero formula’ (since 1847 Mariano Otero proposed to take the institution designed by Manuel Cresencio Rejón for the Constitution of Yucatan to the federal Constitution), can be read as follows in Art. 107.II of Mexico’s Constitution of 1917:
The judgment shall always be such that it only shall be concerned with particular parties, limited to grant relief and protection in the special case related to the complaint, without making a general declaration with respect to the statute law or act that motivates the complaint.
9. In spite of the fact that this principle is part of amparo’s historical identity, for decades many scholars and experts looked at it with a critical eye. Criticism of the principle of relativity of amparo judgments was recently articulated in the following way by Zaldívar (Zaldívar 115–118):
(a) the relativity of amparo decisions violates the principle of constitutional supremacy, because it allows the survival of norms declared unconstitutional in a particular case brought in amparo (supremacy/primacy);
(b) the regularity of the Mexican legal system is affected, because with the principle of relativity, irregular norms remain part of the legal system; they continue to be valid and to be applied, despite their declared irregularity; and
(c) the principle of relativity of amparo judgments violates the principle of equality before the law: a rule can be constitutional for some, and unconstitutional for some others, and in many cases this reflects the ability of some actors to pay for high quality legal services (and thus obtain a favourable judgment in amparo).
10. As a result of the debates triggered by this sort of criticism connected with the ‘Otero formula’, Mexico’s Constitution of 1917 was reformed on 6 June 2011, to open up the possibility that under certain conditions, judgments in amparo may have general effect (erga omnes), without derogating from the principle of relativity. For this to happen, the second paragraph of Art. 107.II of the Constitution establishes a specific procedure, according to which:
(a) there must be a binding precedent (jurisprudencia) rendered by federal courts that determines that a norm is unconstitutional;
(b) the Supreme Court shall notify the agency that produced that norm, giving it 90 days to modify it to overcome the problem of unconstitutionality;
(c) if this does not happen, the Supreme Court has the power to render a general declaration of unconstitutionality of the respective norm, if approved by at least eight of the Court’s justices (Art. 107.II states that this procedure is not applicable in connection with norms that create taxes).
11. There are two recent developments in the trajectory of the Mexican amparo which are worth of being mentioned in this commentary, one is constitutional and the other is legal: firstly, the constitutional reform of 6 June 2011 modified the traditional rules on standing in amparo. According to the new rules, a person can claim to be an ‘injured party’ (parte agraviada) in amparo, when she or he alleges to be the holder of a right or of an individual or collective legitimate interest, alleging that the act in question violates the rights recognized by the Constitution and hence her or his legal sphere is affected, either directly of by virtue of her/his special situation before the legal order. This rule has opened up the way to what is known as ‘collective amparo’ for the protection of diffuse interests that formerly were not protected through the writ of amparo; and secondly, the new Act on Amparo of 2 April 2013 (Mex), established in its Art. 5.II that private persons can be sued in amparo ‘whenever they perform actions that are equivalent to acts of authority’ that affect human rights and ‘whose functions are determined in a general norm’. This has opened up the possibility of what can be identified as the amparo inter privatos, something unthinkable under the original conception of the writ of amparo.
3. A Critical View on Mexico’s Writ of Amparo
12. Looking critically at the writ of amparo as developed in Mexico, it is possible to say that it has been used in an abusive way by some actors. Specifically, what was abused was the so-called ‘suspension of the challenged act’ (suspension del acto reclamado), which is a provisional order issued by amparo judges, whose purpose is to preserve the status quo of plaintiffs in amparo, until the judge decides the claim on its merits. In other words, the effects of this order consist of suspending the impact of the act of authority that is being challenged through an amparo action, until the judge considers the merits of the case. Since amparo judicial proceedings can take several years, this implied that plaintiffs could continue performing their potentially illegal activities until the amparo courts decided the case. For this reason, Art. 129 of the new Amparo Act (2 April 2013), established a number of limits to the possibility of granting suspension orders in favour of plaintiffs. For example, this kind of orders shall not be granted when suspension would imply the continuation of the activities of: ‘centres of vice or pandering’; casinos; and centres for the production and trade of narcotics. Moreover, suspension orders shall not be granted when they impede the payment of maintenance obligations or the use or exploitation by Mexico’s State of the assets that fall under the ‘direct domain’ of the Nation (i.e. mineral resources, such as oil and gas).
B. The Expansion of the Writ of Amparo in Latin America and Spain
1. Expansion throughout Latin America
13. The Mexican amparo has expanded beyond this country’s borders. However, as pointed out by Fix Zamudio (Fix (2003) 796), and taking into account the complexity of this institution as described above, what has actually expanded is the original version of amparo, that is to say, the amparo in its function related to the protection of human rights (other than the right to freedom, which in Latin American countries has been protected through the action of habeas corpus), against actions and omissions of public authorities.
14. Indeed, the action of amparo for the protection of human rights has been established in the following Latin American constitutions: Constitution of Argentina of 1 May 1853, as amended to 22 August 1994 (Art. 43 paras 1 and 2) (Arg); Constitution of Bolivia of 7 February 2009 (Arts 128 and 129) (Bol); Constitution of Costa Rica of 8 November 1949 (Art. 48) (Costa Rica); Constitution of Ecuador of 20 October 2008 (Art. 88) (Ecuador); Constitution of El Salvador of 20 December 1983 (Art. 247) (El Sal); Constitution of Guatemala of 31 May 1985 (Art. 265) (Guat); Constitution of Honduras of 20 January 1982 (Art. 183) (Hond); Constitution of Mexico of 5 February 1917 (Arts 103 and 107) (Mex); Constitution of Nicaragua of 9 January 1987 (Art. 188) (Nicar); Constitution of Panamá of 11 October 1972 (Art. 50) (Pan); Constitution of Paraguay of 11 October 1992 (Art. 128) (Para); Constitution of Perú of 29 December 1993 (Art. 200 para. 2) (Peru); and Constitution of Venezuela of 20 December 1999 (Art. 27) (Venez).
15. It is interesting to mention in this comment how the action of amparo was introduced into Argentina’s legal system, since until 1994 there was no express constitutional norm regulating it. According to Sagüés (Sagüés 41–43), for many years Argentinians discussed whether the action of habeas corpus, designed to protect personal freedom, could also be used to protect other fundamental rights established in Argentina’s Constitution of 1853. The traditional opinion of the Supreme Court was that this was not possible: the extension of the functions of habeas corpus required a piece of legislation passed by Congress.
16. However, on 27 December 1957, the Supreme Court of Argentina (Corte Suprema de Justicia de la Nación) changed this opinion, in the leading case Siri, Angel. This case involved the closure of a newspaper by the military regime in power at that moment. The owners of the newspaper challenged the closure before the Supreme Court, which produced the following doctrine: judges should proceed to protect plaintiffs against restrictions to freedom of the press and freedom to work, by the sole demonstration that those constitutional rights had been affected; it did not matter if there was no statute regulating this constitutional guarantee, because individual guarantees exist and protect individuals by the mere fact of being established in the constitution, independently of the statutes passed or not by Congress (Siri, Angel).
17. This decision triggered a national discussion in Argentina on the convenience of passing a statute on the action of amparo, which eventually led to the Statute 16.986 of 1966, regulating this institution. Finally, the constitutional reform of 1994 introduced into the Constitution of Argentina of 1 May 1853 the action of amparo in Art. 43, whose first paragraph states:
Any person shall file a prompt and summary proceeding of amparo regarding constitutional guarantees, provided there is no other legal remedy, against any act or omission of the public authorities or individuals which currently or imminently may damage, limit, modify or threaten rights and guarantees recognized by this Constitution, treaties or laws, with open arbitrariness or illegality. In such case, the judge may declare that the act or omission is based on an unconstitutional rule.
18. Noticeably, as it is possible to see in the wording of this article, the writ of amparo in Argentina can also be used to challenge acts or omissions of private individuals that violate human rights.
19. Besides, the Constitution of Argentina of 1 May 853, reformed on 22 August 1994 (Arg), also establishes the possibility of filing collective amparos in the second paragraph of Art. 43 which states that:
20. Other Latin American constitutions do not use the word amparo in any of their articles, but have introduced institutions that perform the same functions as the writ of amparo. That is the case, for example, of Brazil’s mandado de segurança (Art. 5 para. LXIX of Brazil’s Constitution of 5 October 1988 (Braz)); and Colombia’s acción de tutela (Art. 86 of Colombia’s Constitution of 4 July 1991 (Colom)).
21. As in Argentina, in Brazil the mandado de segurança, was initially the product of an extension of the action of habeas corpus, and was latter incorporated into the Constitution of Brazil of 1934 in Art. 113 (Da Silva 125). Today, this action is foreseen in Art. 5 para. LXIX of Brazil’s Constitution of 5 October 1988 (Braz), which states:
a mandado de segurança shall be issued to protect a clear and perfect right, not covered by habeas corpus or habeas data, whenever the party responsible for the illegal actions or abuse of power is a public official or an agent of a corporate legal entity exercising duties of the Government.
22. As in Mexico and Argentina, the Constitution of Brazil of 5 October 1988 (Braz) also establishes the possibility of filling what would qualify as collective actions of amparo, as can be seen in Art. 5 LXX, which states that:
A collective mandado de segurança may be filed by: 1. a political party represented in the National Congress; 2. a union, a professional association or an association legally constituted and in operation for at least one year, to defend the interests of its members or associates.
23. The acción de tutela of Colombia deserves a special mention, since it has been the instrument by which the Constitutional Court of Colombia (Corte Constitucional de Colombia) has produced doctrines seeking to give efficacy to several social and economic rights protected under the constitution of that country. As reported by Ortiz Gutiérrez, this action had no antecedents in Colombia’s legal and constitutional tradition. It was introduced into Art. 86 of the Constitution of Colombia of 4 July 1991 (Colom), with the intention of making effective the constitutional rights established in the new constitution (Ortiz 213–215), in a context in which political elites were seeking to re-build the social and political tissue of a country that for years has suffered crude episodes of violence.
24. Catalina Botero has argued that the acción de tutela has had a decided impact in building a democratic society in which both citizens and authorities speak the language of rights, and she points out some of the reasons why this has been the case:
(a) the acción de tutela can be filed to protect all the fundamental rights covered by the constitution, including social fundamental rights; in addition, the constitutional catalogue of fundamental rights is not exhaustive, but is open, and the Constitutional Court can ‘discover’ fundamental rights that are not explicitly established in the constitution or in international treaties on human rights;
(b) the action can be filed by any person who can demonstrate that his/her fundamental rights have been violated or threatened (including legal persons, minors and foreigners);
(c) the acción de tutela can be filed against any act or omission of any public entity or private individual that falls in the parameters defined by Art. 86 of the Constitution of Colombia of 4 July 1991 (Colom), and the Decree 2591 of 1991(Colom), which regulates the action in detail;
(d) every judge in Colombia has jurisdiction to hear an acción de tutela; and
(e) the proceeding of this action is informal, preferential, and abbreviated (Botero 133–151).
2. Influence in Spain
25. Interestingly, the expansion of the writ of amparo has not been limited to the Latin American region. As reported by Ferrer (Ferrer 107–132), the institution also reached a European country, Spain whose Constitution of 9 December 1931 (Spain) established for the first time in the constitutional history of that country, an action to protect fundamental rights named: recurso de amparo de garantías individuales. Indeed, this author shows how in designing this constitutional institution, the Spanish members of the constituent assembly examined several kinds of actions available in comparative constitutional law, from Austria’s and America’s systems of constitutional justice, to Mexico’s action of amparo. It seems that a Mexican jurist exiled in Spain and very active in legal, political and cultural circles in Madrid during the 1930s (Rodolfo Reyes), played an important role in introducing into Spanish constitutional debates useful knowledge related to how the Mexican amparo worked (Ferrer 123–135).
26. Today, the Constitution of Spain 29 December 1978 (Spain) foresees the action of amparo in its Art. 53 para. 2, according to which:
Any citizen may assert a claim to protect the freedoms and rights recognised in section 14 and in division 1 of Chapter 2, by means of a preferential and summary procedure before the ordinary courts and, when appropriate, by lodging an individual recurso de amparo to the Constitutional Court. This latter procedure shall be applicable to conscientious objection as recognised in article 30. (conscientious objection)
27. Moreover, the Spanish Constitutional Tribunal, in its Decision 177/1988 (10 October 1988), reasoned that the fact that Art. 53 para 1 of the Constitution of Spain 29 December 1978 (Spain) states that fundamental rights are binding only on public authorities, does not exclude in an absolute way the possibility that they are binding on private actors: the latter can harm fundamental rights and in this hypothesis the victims of harm can use the amparo proceeding to obtain protection whenever they cannot obtain that protection from the courts who are responsible for that protection.
28. In addition, the Spanish Constitutional Tribunal opened up the possibility of filing collective amparos, when it reasoned that the defence of fundamental rights corresponds not only isolated individuals, but also to individuals who act within groups and organizations (Decision 64/1988).
C. The ‘Inter-American Amparo’
29. Contemporary developments in connection with the inter-American system for the protection of human rights have given rise to the concept of ‘inter-American amparo’. Ayala Corao has defined this concept as the right of every person who has been the victim of a violation of his/her human rights defined in the American Convention on Human Rights (1969) or the American Declaration of the Rights and Duties of Man (1948) or in any other international instrument on human rights, to file a petition to the Inter-American Commission on Human Rights, when such violation has been produced by any of the organs of public power of a member state of the Organization of American States (Ayala 78). According to this author, when violations of human rights are not repaired through the mechanisms of domestic law (such as amparo and habeas corpus), domestic jurisdiction must be considered exhausted and, as a consequence, the international jurisdiction should be considered enabled. This is what Cappelletti identified as a ‘recurso de amparo individual a nivel supranacional’ (‘individual remedy of amparo at supranational level’), which operates through a ‘transnational bill of rights’ before a transnational organism (transnational constitutional law). For Ayala Corao, the normative foundation of the ‘inter-American amparo’ is Art. 44 of the American Convention on Human Rights, which states that:
Any person or group of persons, or any nongovernmental entity legally recognized in one or more member states of the Organization, may lodge petitions with the Commission containing denunciations or complaints of violation of this Convention by a State Party (Ayala 76–80).
D. The Writ of Amparo in a Global Perspective
1. Functional Equivalents of the Writ of Amparo beyond Latin American and Spain
30. It is possible to find functional equivalents of the writ of amparo beyond the Iberoamerican legal systems. In the common law tradition, American judicial review is prominent. A product of US Supreme Court law (Marbury v Madison Case (US)), judicial review implies that courts have the power to declare that the acts of the legislative and executive branches of government are unconstitutional and therefore unenforceable. Moreover, judicial review is placed in the judicial system as a whole (a diffuse system, contrary to a concentrated system); courts can examine the constitutionality of legislative and administrative acts only when there is litigation (concrete review, contrary to abstract review); and finally, a conclusion as to the constitutionality of a statute has restricted effectiveness and is limited to the parties of the case, but the principle of stare decisis offsets the lack of erga omnes effect, since the Supreme Court’s constitutional interpretation is binding upon all lower courts (Fernandes 979; interpretation of constitutions).
31. For its part, in the Roman-Germanic legal tradition, the German Verfassungsbeschwerde also performs similar functions as those of the amparo. According to Art. 93 para. 1(4a) of the German Basic Law of 1949, this institution was designed to protect any person’s basic rights (those contained in Arts 1–19 of the German Basic Law of 1949) or one of his/her rights under paragraph (4) of Art. 20 or under Arts 33, 38, 101, 103 or 104 of the same constitutional document. It can be filed to the Federal Constitutional Court of Germany (Bundesverfassungsgericht) against infringements of those rights by any German public authority, but for the claim to be admitted, the infringement has to be ‘actual and immediate’ and plaintiff must have exhausted every possible other remedy (Cappelletti 140–154). If the German Federal Constitutional Court finds that the challenged act is unconstitutional, the effect of its decision varies depending on the kind of act: if it was an administrative act, the Court may limit itself to prohibit its repetition; if it was a legislative act, it can declare its nullity with erga omnes effect; and if it is a judicial act, it can decide the case on its merits, but most frequently the Court returns the case back to the judge responsible for the original infringement, after having declared the inefficacy of subsequent decisions (Ragone and Ragone 131).
2. The Writ of Amparo as Part of the Memory of the World Programme
32. Finally, it is worth mentioning that in 2015, 31 judicial files that corresponded to writs of amparo adjudicated by Mexican federal courts between 1869 and 1935, were registered as documentary heritage within UNESCO’s programme Memory of the World, according to which the world’s documentary heritage belongs to all, and therefore should be fully preserved and protected for all and, with due recognition of cultural mores and practicalities, also should be permanently accessible to all without hindrance.
33. In the context of this commentary, registration of these judicial files as documentary heritage of the world is relevant because by doing so UNESCO validated two arguments put forward in the submission made by Mexico’s Supreme Court of Justice:
(a) the judicial files represent the birth of a legal institution incorporated into constitutional systems in different countries around the world regarding the protection of individual rights; and
(b) the writ of amparo led to the inclusion of the right to an effective judicial remedy into Art. 8 of the Universal Declaration of Human Rights (1948) (UDHR). This novel initiative filled a void in the UDHR.
34. The writ of amparo is a mechanism that emerged in Mexico, in a process that was influenced by different legal traditions (American, French and Spanish), expanding later to most Latin American countries and even beyond this region. In general terms, where the institution has been adopted as an instrument to protect human rights, it shares the basic characteristics of the original model. However, a closer inspection would reveal that the adaptation of the writ of amparo to the different national conditions has fostered important levels of differentiation. This is the reason why each country has its own agenda of reform to improve the way in which the holders of human rights can make use of this institution.
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