Vol. 19 No. 10 (October, 2009) pp.767-770
CONSTITUTIONAL PROTECTION OF HUMAN RIGHTS IN LATIN AMERICA. A COMPARATIVE STUDY OF AMPARO PROCEEDINGS, by Allan R. Brewer-Carías. New York, NY: Cambridge University Press, 2009. 448pp. Hardback. $90.00/£50.00. ISBN: 9780521492027. eBook format. $72.00. ISBN: 9780511460166.
Reviewed by Julio Ríos-Figueroa, División de Estudios Políticos, CIDE. Email: julio.rios [at] cide.edu.
The amparo proceeding is a Latin American extraordinary judicial remedy specifically conceived for the protection of constitutional harms or threats inflicted by authorities or individuals. In common law countries such as the United States, the protection of human rights is assured through the general judicial actions and equitable remedies that are also used to protect any other kind of personal or property rights or interests. In contrast, in Latin American civil law countries the constitution and special legislation explicitly regulate the judicial remedies available for rights protection, such as the amparo proceeding. These constitutional and statutory regulations can be quite detailed, including, for example, the general rules of procedure and standing to file amparos, the definition of the competent courts to hear this type of cases, the specific constitutional rights that can be protected, and the legal effects of judicial decisions in amparo suits.
The explicit aim of Allan Brewer-Carías’ book is to highlight the recent trends and identify variations in the constitutional and legal regulations on the amparo proceeding in nineteen Latin American countries and the Phillipines (p.8). In twenty-two chapters, one of Latin America’s most important constitutional law scholars displays his legal erudition describing different relevant aspects of the amparo suit. To complement the picture, numerous footnotes include comments or text from judicial decisions in different countries where judges’ interpretations have shaped the contours of the amparo proceeding, for instance broadening access to this instrument or expanding the range of rights that it protects. In addition, Brewer-Carías constantly inserts commentaries comparing amparo’s characteristics with equivalent legal instruments available in the United States, such as the injunction and other equitable and non-equitable extraordinary remedies like the writ of mandamus, prohibition, and declaratory legal remedies. This book is thus a valuable reference guide to lawyers, legal scholars, and social scientists interested in the judicial protection of rights in Latin American countries, whether they have previous knowledge of the civil law tradition or not.
Describing in quite good detail yet in an accessible manner the constitutional and legal characteristics of a rather complex judicial remedy across nineteen countries is an unquestionable accomplishment of this book. The down side is that the book offers minimal analysis on the causes and the [*768] consequences of the interesting cross-national variations that the author aptly uncovers. At different points, Brewer-Carías mentions in passing that, notwithstanding the richness of the legal construction of the amparo proceeding, the problem of the effective protection of constitutional rights remains in Latin America, “basically because of the absence or restricted independence and autonomy of the Judiciary that many countries still have” (p.238). But Brewer-Carías does not pursue this kind of insight systematically, for instance assessing the performance of amparo in countries where there is a higher degree of judicial independence in comparison with countries where such independence is lacking or deficient. This lack of analysis may be an opportunity for the social science reader interested in understanding why judges in some Latin American countries more actively protect rights than in others: the book can be a rich mine of interesting hypotheses and future empirical research. In the reminder of this review, I focus on some cross-national variations in the amparo proceeding that may be of interest to political scientists.
In Chapter XVI, Brewer-Carías deals with the injuring actions of public authorities that can cause harms or threats and thus are subject to be challenged using an amparo. A section of this chapter focuses on whether individuals can challenge judicial decisions using an amparo on grounds that their constitutional rights had been violated. This so-called “judicial amparo” is not allowed in most Latin American countries; but seven countries do accept it – i.e. Mexico, Colombia, Guatemala, Honduras, Panama, Peru, and Venezuela. Colombia is an interesting case because the judicial amparo was explicitly allowed in a law passed a few months after the enactment of the Constitution of 1991. A year later, however, the Constitutional Court declared the judicial amparo unconstitutional because it was considered against the principle of the intangibility of the res judicata effects. But in 1993 the same Court readmitted the tutela (as the amparo is called in Colombia) against judicial decisions when issued as a consequence of an arbitrary exercise of the judicial function (p.321). In sum, some countries allow amparos against judicial decisions, others do not, and still in others this decision has been shaped jurisprudentially.
The amparo against judicial decisions is politically relevant for a variety of reasons. In Mexico, for instance, a formally federal country where only federal courts can hear amparos, the judicial amparo has been considered the Trojan horse through which the federal courts and the federal government concentrated power vis-à-vis their state counterparts (see, e.g., Baker 1971). Notice that, as shown in Brewer-Carías’ book, among the countries where the judicial amparo is allowed, Venezuela is also a formally federal country. Has the judicial amparo served the same political ends in Venezuela as in Mexico – to undermine federalism, concentrating decision-making power in the federal courts and government? The amparo against judicial decisions can also affect the degree of internal judicial independence, the independence of lower court judges from their hierarchical superiors. Given that judicial amparos have to be heard by superior courts, sometimes the Supreme [*769] or Constitutional Court, how does this affect the behavior of lower court judges? In countries where the judicial amparo is allowed, and where the top of the judicial hierarchy controls the career of lower court judges, the effect on internal independence may be especially strong. Is this supported by the evidence? Brewer-Carías’ book can be a good start for looking at potential countries where such questions can be examined empirically.
Another topic of particular interest for social and political scientists is the justiciability of economic and social rights. Brewer-Carías deals with this topic in chapter eleven, and in fact he considers it “the most important question regarding the justiciability of constitutional rights by means of the amparo” (p.240). He focuses on the right to health to highlight the different roles of the amparo in guaranteeing it. While practically all Latin American constitutions include the right to health, the fact is that the justiciability of this right has not had the same solution across the region. Brewer-Carías distinguishes four trends in Latin America: (i) countries in which amparo suits for the right to health have been dealt with considering it a collective right, as in Argentina; (ii) countries in which those amparos have been dealt with by connecting the right to health to the right to life and the social security obligations of the state, as in Colombia or Costa Rica; (iii) countries in which courts have granted limited protection of the right to health by subjecting the state’s policy on the matter to the availability of funds, as in Chile; and (iv) countries in which courts have rejected amparo claims for the right to health, as Venezuela (pp.248-248).
These trends identified by the author are interesting and may be the basis for further empirical research. For instance, previous research has suggested that a broad access to rights protection tools such as amparo is crucial for influencing the way in which constitutional judges deal with this type of amparo (e.g., Wilson and Rodriguez-Cordero 2006). Is it the case that countries with broad access to amparo, or countries where amparos have the widest scope and extent, are also the countries with higher levels of justiciability of social and economic rights? Another interesting avenue for political scientists is that of compliance with court decisions, especially in cases of social and economic rights where compliance implies important financial burdens on the state. As Brewer-Carías points out, the political conditions for the enforcement of social, economic, and cultural rights have been the focus of discussion in contemporary constitutional law and also most recently of social science studies that aim to explain cross-national variation in levels of justiciability of those rights (e.g., Gargarella, Domingo, and Roux 2006; Brinks and Gauri 2009).
The consequences of allowing amparos against judicial decisions, or the effectiveness of amparos for protecting social and economic rights, are but two examples of the questions that may be pursued by exploiting the different legal characteristics that are found in Latin America regarding this peculiar instrument for rights protection. Brewer-Carías’ book is a useful reference guide to navigate through this legal labyrinth. It may be also a good starting point for empirical investigations on whether the de jure differences regarding this legal [*770] instrument have any effect on the actual lives of Latin American citizens.
Baker, Richard D. 1971. JUDICIAL REVIEW IN MEXICO. A STUDY OF THE AMPARO SUIT. Austin, TX: Texas University Press.
Gargarella, Roberto, Pilar Domingo, and Theunis Roux (eds). 2006. COURTS AND SOCIAL TRANSFORMATION IN NEW DEMOCRACIES. AN INSTITUTIONAL VOICE FOR THE POOR? Great Britain: Ashgate.
Brinks, Daniel and Varun Gauri (eds). 2008. COURTING SOCIAL JUSTICE. JUDICIAL ENFORCEMENT OF SOCIAL AND ECONOMIC RIGHTS IN THE DEVELOPING WORLD. New York: Cambridge University Press.
Wilson, Bruce M. and Juan C. Rodríguez Cordero. 2006. “Legal Opportunity Structures and Social Movements: The Effects of Institutional Change on Costa Rican Politics.” COMPARATIVE POLITICAL STUDIES, 39 (3): 325-351.
© Copyright 2009 by the author, Julio Rios-Figueroa.