|
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,〔 Argentina, Bolivia, Chile, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru and the Philippines. ()〕 the ''amparo'' remedy or action is an effective and inexpensive instrument for the protection of individual rights.〔Adolfo S. Azcuna, ''The Writ of Amparo: A Remedy to Enforce Fundamental Rights'', 37 ATENEO L.J. 15 (1993).〕 ''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 that are not protected specifically by the constitution or by a special law with constitutional rank, such as the right to physical liberty, which may be protected instead by ''habeas corpus'' remedies. Thus, in the same way that ''habeas corpus'' guarantees physical freedom, and the "habeas data" protects the right of maintaining the integrity of one's personal information, the ''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, another law (or by applicable international treaties), is being violated. == Origins in Mexico == 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.〔 (''The Writ of Amparo - Mexican Procedure to Protect Human Rights'' ), Links.jstor.org〕 Of Mexican origin, thus, "Amparo" literally means "protection" in Spanish.〔Barker, R., ''Constitutionalism in the Americas: A Bicentennial Perspective'', 49 University of Pittsburgh Law Review (Spring, 1988) 891, 906.〕 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.〔Id., citing Zamudio, F., ''A Brief Introduction to the Mexican Writ of Amparo'', 9 California Western International Law Journal (1979) 306, 309〕 Mexican justice Manuel Crescencio Rejón, drafted a constitutional provision for his native state, Yucatán (threatening independence 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.〔“At the time it adopted Rejón’s amparo, Yucatan had separated itself from Mexico. After a few months, the secession ended and the state resumed its place in the union.” (Barker, R., supra at 906.)〕〔Acta de Reformas, art. 25 (1847) (amending Constitution of 1824).〕 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.”〔Rule on the Writ of Amparo: Annotation, p. 45. See Article 107 of the Constitution of Mexico; Article 28(15) of the Constitution of Ecuador; Article 77 of the Constitution of Paraguay; Article 43 of the Constitution of Argentina; Article 49 of the Constitution of Venezuela; Article 48 (3) of the Constitution of Costa Rica; and Article 19 of the Constitution of Bolivia.〕〔Provost, R., supra at 698, citing Ramirez, F., ''The International Expansion of the Mexican Amparo'', 1 Inter-American Law Review (1959) 163, 166.〕 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." 〔Rule on the Writ of Amparo: Annotation, p. 45; see also Zagaris, B., “The Amparo Process in Mexico,” 6 Mexico Law Journal (Spring 1998) 61, 66 and Provost, R., supra at 708-709.〕 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: :(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 materia agraria, ejidal y comunal'').〔(The Mexican amparo ), Joaquin G. Bernas, Inquirer.net. Accessed 20-06-09〕 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Recurso de amparo」の詳細全文を読む スポンサード リンク
|