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 Editorials | Opinions | September 2007 
The Mexican Amparo
 Fr. Joaquin G. Bernas, S.J. - Inquirer.net
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| | Amparo simply means protection. It is, in the words of a justice of the Mexican Federal Supreme Court, one piece of Mexico’s self-attributed “task of conveying to the world’s legal heritage that institution which, as a shield of human dignity, her own painful history conceived.” |
Manila, Philippines - Several bar examinations ago the first item in the Bar Examination Questions for Political Law was “What is a writ of amparo?” There was a lot of head scratching among the examinees upon seeing the question. Almost nobody knew anything about the animal or had ever heard about it. But now the writ of amparo has become a front-page subject and might be an important item in the Bar Examinations after this year.
Chief Justice Reynato Puno has shown himself to be passionately committed to the protection of human rights. In his effort to find ways of strengthening the protection, he has started exploring the potential of the writ of amparo to fill the gaps in the mantle of protection offered by current law and jurisprudence.
For this purpose I understand that he has commissioned my classmate and friend Justice Dolf Azcuna to study what the Supreme Court can do about making a writ of amparo effective in the Philippines. Fittingly so, since it is no secret that it was Justice Azcuna as Bar Examiner several years ago who surprised the examinees with the question about the writ of amparo. He probably knows more about it than any lawyer or jurist in the Philippines.
At any rate, what is the writ of amparo?
Amparo simply means protection. The recurso de amparo is an all-purpose remedy very much in use in the Mexican legal system. It is, in the words of a justice of the Mexican Federal Supreme Court, one piece of Mexico’s self-attributed “task of conveying to the world’s legal heritage that institution which, as a shield of human dignity, her own painful history conceived.” The writ has been described as “the most Mexican institution of the whole of positive Mexican law.
The reference to the painful history as the mother of the writ of amparo might discourage those who wish to introduce it into the Philippines. Some in fact would dismiss the Latin American amparo on the argument that the caudillos would never allow the development of an effective legal theory in the area of political law. Scholars have pointed out that between 1935 and 1975 Latin America experienced more than one hundred successful coups and many more unsuccessful ones—on an average of more than twelve coups per country. Nevertheless this should not dissuade us from exploring the potential of the Latin American writ. After all, we still lag far behind in terms of number of coups!
Mexico is the birthplace of amparo. The first thing to notice about it is that it is expressly provided for in the Mexican Constitution—currently in Articles 103 and 107. How the system got into the Constitution is itself historically interesting.
The first stage of its development was philosophical. At the heart of amparo is the idea of judicial review of governmental action. It is said that the idea came to Mexico under the strong influence of American thought especially through the arrival in Mexico of the Spanish translation of Alexis de Tocqueville’s Democracy in America. This happened in 1837, three years before the appearance of amparo. The American idea, born in the context of revolution against a colonial power, found a responsive chord in the new nations of Latin America which had long experienced colonial rule.
The idea eventually found its way into the Mexican Constitution initially through the instrumentality of a federal politician named Manuel Crecencio Rejon. Rejon returned to his native state of Yucatan which had then seceded after a rebellion from the rest of Mexico. There he headed a central constitutional reform commission where he proposed to include a judicial review procedure. His aim was to give state courts the power to protect individuals against state abuses.
Rejon eventually returned to Mexico City where he participated in the drafting of a new Constitution. He brought with him his Yucatan idea. But it was mainly Mariano Otero who pushed what came to be known as the “Otero Formula” and which became Article 25 of the new Mexican Constitution. Article 25 contained the heart of amparo. It said: “The Courts of the Federation will protect [amparán] any inhabitant of the Republic in his exercise and conservation of those rights conceded to him by the Constitution and the constitutional laws, against all assaults of the Legislative and Executive Branches, on the federal as well as the state levels . . .”
The formula has since developed into an all-purpose multi-faceted amparo: (a) the Liberty Amparo (amparo de libertad); (b) the Constitutionality Amparo (amparo contra leyes); (c) the Judicial or “Cassation” Amparo, aimed at the constitutionality of a judicial interpretation; (d) the Administrative Amparo (amparo como contencioso-administrativo); and (e) the Agrarian Amparo (amparo en matera agraria, ejidal y comunal).
The Mexican amparo basically takes the form of judicial review. Much of what it is designed for is already covered by our legal system. But what interests us most is the amparo de libertad, which is the original amparo and which goes beyond the protection given by the traditional writ of habeas corpus.
Our Constitution has one open-ended provision which, in tandem with the Bill of Rights and the Covenant on Civil and Political Rights, can accommodate expansion. The provision says that the Supreme Court shall “Promulgate rules concerning the protection and enforcement of constitutional rights . . .” This is the seed that the Chief Justice hopes to nurture into a Philippine recurso de amparo that is fast, simple and efficacious. |
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