The Writ of The Writ of AmparoAmparo

Prof. Jose Manuel I. DioknoProf. Jose Manuel I. Diokno11stst Presentation Presentation21 June 200821 June 2008

Assignments for June 21, 2008 Assignments for June 21, 2008 ClassClass

1. On large index cards, write down (legibly) what the 1. On large index cards, write down (legibly) what the following terms mean. Cite your source. following terms mean. Cite your source. WritWrit Prerogative writ, extraordinary writPrerogative writ, extraordinary writ Writ of Writ of CertiorariCertiorari Writ of ProhibitionWrit of Prohibition Writ of Writ of MandamusMandamus Writ of Writ of Habeas CorpusHabeas Corpus Writ of InjunctionWrit of Injunction Writ of Writ of ProcedendoProcedendo Right to LifeRight to Life Right to Liberty Right to Liberty Right to SecurityRight to Security

Assignment for next class Assignment for next class cont’d…cont’d…

2. Read up on the history of the writ of 2. Read up on the history of the writ of amparo and be ready to discuss the following:amparo and be ready to discuss the following: Where did the writ of Where did the writ of amparo amparo originate?originate? What was the historical context in which the writ of What was the historical context in which the writ of

amparoamparo emerged? emerged? Why was the writ of Why was the writ of amparo amparo created in its country created in its country

of origin? What societal needs and interests does it of origin? What societal needs and interests does it serve?serve?

How has the writ of How has the writ of amparo amparo evolved in its country evolved in its country of origin? of origin?

How different is the writ of How different is the writ of amparo amparo from the writs from the writs that we are already familiar with (that we are already familiar with (certioraricertiorari, , prohibition, prohibition, mandamusmandamus, , habeas corpus habeas corpus and and injunction)?injunction)?

Group WorkGroup Work

1. As a group, answer the following:1. As a group, answer the following: Is the writ of Is the writ of amparo amparo an extraordinary an extraordinary

prerogative writ? Why or why not?prerogative writ? Why or why not? What is the purpose of the writ of What is the purpose of the writ of

amparo in its country of origin?amparo in its country of origin? In what historical and social context did In what historical and social context did

the writ of amparo emerge in its country the writ of amparo emerge in its country of origin?of origin?

IntroductionIntroduction

Preliminary considerations: Preliminary considerations: Ordinary WritsOrdinary Writs Extraordinary Prerogative WritsExtraordinary Prerogative Writs

CertiorariCertiorari MandamusMandamus ProhibitionProhibition Habeas CorpusHabeas Corpus (Amparo)(Amparo) (Habeas Data)(Habeas Data)

[Writ of Injunction][Writ of Injunction]

WritWrit

An order issued from a court An order issued from a court requiring the performance of a requiring the performance of a specified act, or giving authority to specified act, or giving authority to have it done; have it done;

May be addressed to a sheriff or May be addressed to a sheriff or other officer of the law, or directly to other officer of the law, or directly to the person whose action the court the person whose action the court desires to command;desires to command;

May issue at the start of a suit or May issue at the start of a suit or during its progress.during its progress.

Prerogative or Extraordinary WritsPrerogative or Extraordinary Writs

In English law, refers to certain judicial writs In English law, refers to certain judicial writs issued by the courts only upon proper cause issued by the courts only upon proper cause shown, never as a matter of right;shown, never as a matter of right;

Granted only in cases where the ordinary legal Granted only in cases where the ordinary legal remedies are inapplicable or inadequate; remedies are inapplicable or inadequate;

Consist of the writs of mandamus, certiorari, Consist of the writs of mandamus, certiorari, prohibition, procedendo, quo warranto, habeas prohibition, procedendo, quo warranto, habeas and corpus.and corpus.

According to Justice Azcuna, the writ of amparo is According to Justice Azcuna, the writ of amparo is also a prerogative or extraordinary writ.also a prerogative or extraordinary writ.

While the writ of injunction is not considered a While the writ of injunction is not considered a prerogative or extraordinary writ, it functions in prerogative or extraordinary writ, it functions in much the same way as a writ of prohibition.much the same way as a writ of prohibition.

CertiorariCertiorari

Latin, “to be informed of.”Latin, “to be informed of.” A writ by which the records of a case A writ by which the records of a case

of an inferiour court are called up for of an inferiour court are called up for review in the superior court: review in the superior court:

““We, being desirous for certain We, being desirous for certain reasons, that the said court record reasons, that the said court record should by you be certified to us.”should by you be certified to us.”

MandamusMandamus Latin, “we command.”Latin, “we command.” A writ commanding a public official, A writ commanding a public official,

corporate officer, or judge to do a corporate officer, or judge to do a specified thing. specified thing.

ProhibitionProhibition

A writ issued by a higher court to a lower A writ issued by a higher court to a lower court, administrative agency or public court, administrative agency or public officer to prevent the latter from either officer to prevent the latter from either exercising jurisdiction when it has no exercising jurisdiction when it has no jurisdiction or from exceeding its jurisdiction or from exceeding its jurisdiction.jurisdiction.

A preventive remedy.A preventive remedy. Not a substitute for appeal or for Not a substitute for appeal or for

correcting errors that can be remedied by correcting errors that can be remedied by appeal. appeal.

InjunctionInjunction

A court order commanding or A court order commanding or forbidding the doing of a certain act. forbidding the doing of a certain act.

Intended to prevent irreparable Intended to prevent irreparable injury.injury.

Habeas CorpusHabeas Corpus

Latin, “you have the body.”Latin, “you have the body.” ““A writ issuing out of a court of A writ issuing out of a court of

justice requiring the body of a person justice requiring the body of a person restrained of liberty to be brought restrained of liberty to be brought before the judge or into court, that before the judge or into court, that the lawfulness of the restraint may the lawfulness of the restraint may be investigated and determined.” be investigated and determined.”

1. The Roots of the Writ of 1. The Roots of the Writ of AmparoAmparo......

AmparoAmparo Spanish Spanish wordword; ; Means “to shelter or protect…”Means “to shelter or protect…”

Writ of Writ of amparoamparo > Mexican in > Mexican in origin.origin.

Juicio de AmparoJuicio de Amparo

““...among the most original, deeply ...among the most original, deeply revered, and highly utilized causes of revered, and highly utilized causes of action before Mexican federal courts;” action before Mexican federal courts;”

used to protect individuals from laws or used to protect individuals from laws or public authorities' acts that violate any public authorities' acts that violate any of the of the garantías individualesgarantías individuales (individual (individual guarantees) protected by Mexico’s guarantees) protected by Mexico’s Federal Constitution Federal Constitution ““Mexico and its Legal System,” by Mexico and its Legal System,” by

Jorge A. VargasJorge A. Vargas, published on February 27, 2008, , published on February 27, 2008, available at available at http://www.llrx.com/mexicolegalsystem.htm#introhttp://www.llrx.com/mexicolegalsystem.htm#intro

Juicio de AmparoJuicio de Amparo

Federal lawsuit Federal lawsuit May be filed by any individual or May be filed by any individual or

corporation (legal entity), whether a corporation (legal entity), whether a national or a foreigner, who national or a foreigner, who challenges the official acts of any challenges the official acts of any authority (federal, state or authority (federal, state or municipal) (municipal) (Autoridad responsableAutoridad responsable or or Responsible authority) Responsible authority)

For violating specific rights granted For violating specific rights granted by the Mexican Constitution. by the Mexican Constitution.

The Mexican ConstitutionThe Mexican Constitution

““...the very first revolutionary social ...the very first revolutionary social movement of the 20th century, the movement of the 20th century, the Revolución MexicanaRevolución Mexicana of 1910 of 1910 provided the substance for provided the substance for numerous popular and social numerous popular and social demands that found their way into demands that found their way into the language of the Constitution of the language of the Constitution of 1917.”1917.”

Specific rights recognized by the Specific rights recognized by the Mexican ConstitutionMexican Constitution

Sovereign and exclusive rights over its Sovereign and exclusive rights over its natural resources, land for the peasants and natural resources, land for the peasants and a nationalistic regime over real estate a nationalistic regime over real estate property and foreign investment (Art. 27); property and foreign investment (Art. 27);

Freedom of religion (Art. 130); Freedom of religion (Art. 130); Free, non-religious public education (Art. 3); Free, non-religious public education (Art. 3); Fair working conditions for laborers Fair working conditions for laborers

including the right to work and to strike and including the right to work and to strike and to have an eight-hour labor schedule, and to have an eight-hour labor schedule, and special working conditions for women and special working conditions for women and children (Art. 123); children (Art. 123);

Specific rights recognized by the Specific rights recognized by the Mexican Constitution…Mexican Constitution…

Freedoms protecting the right to work, Freedoms protecting the right to work, freedom of expression, the right to get an freedom of expression, the right to get an official answer from authorities, and the official answer from authorities, and the right of association (Arts. 5, 6, 7 and 8);right of association (Arts. 5, 6, 7 and 8);

The right to fair and expeditious judicial The right to fair and expeditious judicial proceedings (proceedings (i.e.,i.e., due process) (Art. 13); due process) (Art. 13);

The right not to be molested at home, or The right not to be molested at home, or in one's family, personal documents or in one's family, personal documents or possessions without a judicially mandated possessions without a judicially mandated order (Arts. 14, 16); order (Arts. 14, 16);

““These individual guarantees...[are] These individual guarantees...[are] firmly protected against firmly protected against unconstitutional intrusions by public unconstitutional intrusions by public authorities through the special authorities through the special federal federal sui generissui generis judicial judicial proceedings known as proceedings known as Amparo.” Amparo.” [id.][id.]

The purpose of the Mexican writ of The purpose of the Mexican writ of amparo amparo is to...is to...

““... restore and maintain the Principle ... restore and maintain the Principle of Legality;” of Legality;”

““... oversee and protect the legal order ... oversee and protect the legal order against any violations produced by any against any violations produced by any authorities, provided that these authorities, provided that these violations constitute a present, violations constitute a present, personal, and direct breach or violation personal, and direct breach or violation inflicted to an individual, whether a inflicted to an individual, whether a person or a corporation.” [id.]person or a corporation.” [id.]

The purpose of Mexican The purpose of Mexican AmparoAmparo judgments... judgments...

““...is to restore to the victim the ...is to restore to the victim the recognition and enjoyment of the violated recognition and enjoyment of the violated or breached rights, attempting to restore or breached rights, attempting to restore the the status quo antestatus quo ante (when possible) when (when possible) when the requested act (the requested act (Acto reclamadoActo reclamado) is a ) is a positive one. positive one.

When it is a negative act, When it is a negative act, i.e.,i.e., an omission, an omission, the effect is to obligate the sued authority the effect is to obligate the sued authority to act and comply with that which was to act and comply with that which was demanded by the victim as a result of the demanded by the victim as a result of the violation (Art. 80, violation (Art. 80, AmparoAmparo Act). Act).

The Mexican The Mexican Amparo Amparo is a is a remedy of last resort...remedy of last resort...

““In the opinion of Drs. Zamudio and In the opinion of Drs. Zamudio and Fierro, two... leading Mexican experts Fierro, two... leading Mexican experts on this matter... on this matter... Juicio de AmparoJuicio de Amparo represents represents the very last resortthe very last resort, at , at the appellate level, in most of the the appellate level, in most of the judicial and administrative judicial and administrative proceedings, and even those of a proceedings, and even those of a legislative nature.”legislative nature.”

5 Different Kinds of 5 Different Kinds of Amparo Amparo in Mexicoin Mexico

Amparo de libertad;Amparo de libertad; Amparo contra leyes;Amparo contra leyes; Amparo Amparo contra resoluciones contra resoluciones

judiciales; judiciales; Amparo contencioso-administrativo; Amparo contencioso-administrativo;

andand Amparo social agrarioAmparo social agrario

Juicio de AmparoJuicio de Amparo similar to the similar to the Habeas Habeas corpuscorpus.. "Amparo for liberty" ("Amparo for liberty" (Amparo de libertadAmparo de libertad). ). May be requested by an individual—May be requested by an individual—

Whose life is threatened by acts of a Whose life is threatened by acts of a given authority; given authority;

Who is detained without a judicial order; Who is detained without a judicial order; Who is being deported;Who is being deported; Who is tortured;Who is tortured; Whose assets have been confiscated;Whose assets have been confiscated; Or who is the victim of any other acts Or who is the victim of any other acts

prohibited by Article 22 of the Federal prohibited by Article 22 of the Federal Constitution (Article 17, Constitution (Article 17, AmparoAmparo Act). Act).

Juicio de AmparoJuicio de Amparo to fight legislative to fight legislative provisionsprovisions.. Also known as Also known as Amparo contra LeyesAmparo contra Leyes

((AmparoAmparo against laws). against laws). To question laws approved by the To question laws approved by the

Congress, international treaties Congress, international treaties approved by the Senate and approved by the Senate and regulations decreed by the President regulations decreed by the President of the Republic, and other government of the Republic, and other government bodies for being contrary to the bodies for being contrary to the Federal Constitution. Federal Constitution.

AmparoAmparo against Judicial Resolutions against Judicial Resolutions Amparo contra Resoluciones Judiciales.Amparo contra Resoluciones Judiciales. To examine the legality of the To examine the legality of the

resolutions rendered at the last resort resolutions rendered at the last resort by Mexican courts, as prescribed by by Mexican courts, as prescribed by Article 14 of the Federal Constitution.Article 14 of the Federal Constitution.

(Art. 46; 114, paras. III-V; and 85, para. II, (Art. 46; 114, paras. III-V; and 85, para. II, AmparoAmparo Act Act,, and Art. 37, para. IV, Organic Act of the Federal Power and Art. 37, para. IV, Organic Act of the Federal Power of the Federation).of the Federation).

Administrative Administrative Amparo Amparo Juicio de Amparo Contencioso-Juicio de Amparo Contencioso-

AdministrativoAdministrativo To challenge acts and resolutions of To challenge acts and resolutions of

Administration, both at the federal and Administration, both at the federal and State levels, due to the lack (until State levels, due to the lack (until recently) of administrative courts.recently) of administrative courts.

Social Agrarian Amparo Social Agrarian Amparo Amparo Social AgrarioAmparo Social Agrario A special system for the procedural A special system for the procedural

protection of peasants subject to the protection of peasants subject to the Agrarian Reform.Agrarian Reform.

Assignment for Next ClassAssignment for Next Class1. FILL UP THE FOLLOWING CHART1. FILL UP THE FOLLOWING CHART::

Cert./Pr./MCert./Pr./M WHCWHC AmparoAmparo Habeas Habeas DataData

Standard of Diligence Extraord.Standard of Diligence Extraord.Quantum of Proof Prep. of Evid. Quantum of Proof Prep. of Evid. Burden of ProofBurden of Proof P PPres. of Regularity Pres. of Regularity No NoGeneral DenialGeneral Denial No NoRight/s ProtectedRight/s Protected

BE READY TO EXPLAIN YOUR ANSWERS AND WHAT THE BE READY TO EXPLAIN YOUR ANSWERS AND WHAT THE FOLLOWING TERMS MEAN:FOLLOWING TERMS MEAN: (1) Extraordinary diligence (1) Extraordinary diligence (2) Preponderance of evidence (3) Substantial evidence (2) Preponderance of evidence (3) Substantial evidence (4) Presumption of regularity and (5) General denial.(4) Presumption of regularity and (5) General denial.