Amparo, Writ of
Amparo, Writ of
Amparo, Writ of
Writ of Amparo, constitutional action that originated in Mexico and since has been adopted by several other Latin American nations. As authorized by Articles 103 and 107 of the Mexican Constitution of 1917, presently in force, the amparo (literally, protection) permits any private individual or group to seek federal judicial relief from a broad range of official abuses of rights guaranteed by Articles 1-29 of the Constitution, Mexico's Bill of Rights.
The writ was first established under the leadership of Manuel Crescencio Rejón by the Yucatán Constitution of 1841, by federal statute in the Reforms Act of 1847 (spearheaded by Mariano Otero), and constitutionally by the liberal Federal Constitution of 1857. The amparo bears the influence of U.S. legal practice, especially judicial review, the Bill of Rights, and the Anglo-American writ of habeas corpus, as revealed to Latin America at large through translations of De Tocqueville's Democracy in America (1855). It also derives from Spanish sources, including ancient fueros (special privileges) and the procedures of the royal courts of Castile and Aragon and various special tribunals of colonial Spanish America, and from the French judicial appeal of cassation, the Constitutional Senate of 1799, and the Declaration of the Rights of Man. The amparo is thus of hybrid origin.
In Mexico, the writ has become the sole judicial instrument for correcting constitutional violations by legislators, executive officials, and judges, both federal and local. According to the eminent jurist-scholar Héctor Fix Zamudio, the remedy now has at least five major constitutional control functions and procedural forms. It is used as an emergency procedure to protect fundamental human rights such as life, liberty, and physical safety (usually while the petitioner is under confinement by local police or courts) and is brought first to the federal district courts as with the Anglo-American habeas corpus, federal removal, prohibition, and injunction procedures. It is also employed as an appeal to finalize—that is, review and reverse—mistaken interpretations of federal or state codes by lower courts or any administrative tribunal. Known as the judicial, cassation, or direct amparo, it is comparable to the U.S. writ of certiorari or, more so, the French cassation. Constituting some 80 percent of all Mexican amparo cases, it is brought directly to one of the four chambers of the federal Supreme Court (criminal, administrative, civil, or labor) or, if a case of lesser importance, to one of the Collegiate Circuit Courts. In addition, Mexicans use the amparo as a remedy against abuses by executive agencies and bureaucrats. This administrative, or indirect, amparo is first brought to federal district courts; as such it is comparable to the Anglo-American petitions for injunction, declaratory judgment, and mandamus. Appeals may then be taken directly to the Supreme Court when the issue is of "transcending national importance" (giving the High Court certiorari-like discretion to hear the case). Amparo has been used as a method to challenge unconstitutional (per Article 27) official confiscations of the land and water rights of small individual, communal village, and ejido farmers. In these agrarian amparos, formal procedural requirements may be waived for petitioners. Finally, as the only vehicle that can challenge the validity of a legislative statute, the constitutionality amparo (amparo contra leyes) approaches United States-style judicial review. But this last use of the procedure is limited in effect, rarely successful, and procedurally cumbersome; for example, only the full 21-member Supreme Court can issue a negative declaration, which applies only to the parties-litigant (inter partes), not broadly, or erga omnes. As with all amparo decisions, however, five consecutive judgments of the court do bind all state and federal courts and administrative tribunals as precedent (jurisprudencia).
The amparo is used across the socioeconomic spectrum in Mexico, as evidenced by the crushing amount of caseloads in the federal courts with amparo jurisdiction. It now serves, with certain limits on its application to major government policies, as the principal guardian of the national legal order, from edicts of the president to the smallest municipio. In various forms, the writ has been adopted constitutionally by Argentina, Bolivia, Chile, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Paraguay, and Venezuela.
See alsoJudicial Systems: Spanish America .
Richard D. Baker, Judicial Review in Mexico: A Study of the Amparo Suit (1971), is the only book on the amparo in English, but is dated in several important respects. A seminal counterpart in Spanish is Ignacio Burgoa, El juicio de amparo, 24th ed. (1988). Comprehensive articles in English include: Héctor Fix Zamudio, "A Brief Introduction to the Mexican Writ of Amparo," in California Western International Law Journal 9, no. 2 (1979), and "The Writ of Amparo in Latin America," in Lawyer of the Americas 13, no. 3 (1981).
Carl E. Schwarz, "Judges Under the Shadow: Judicial Independence in the United States and Mexico," in California Western International Law Journal 3, no. 2 (1973), and "Rights and Remedies in the Federal Trial Courts of Mexico and the United States," in Hastings Constitutional Law Quarterly 4 (1977).
Gudiño Pelayo, José de Jesús. Introducción al amparo mexicano. México, D.F.: Noriega Editores, 1999.
James, T.M. Law and Revolution in Mexico: A Constitutional History of Mexico's Amparo Court and Revolutionary Social Reform, 1861–1934. Ph.D. diss., University of Chicago, 1999.
Carl E. Schwarz