The Latin American Model of Constitutional Jurisdiction: Amparo and Judicial Review

30 Pages Posted: 8 Aug 2013 Last revised: 30 Aug 2013

Axel Tschentscher

Bern University - Law School

Caroline Lehner

University of Bern - School of Law

Date Written: July 19, 2013

Abstract

There is a near-universal trend in Latin America countries to supplement their court organization by specialized constitutional courts similar to those established in Continental Europe. By simultaneously retaining their amparo procedure, the states of Latin America today achieve a unique combination of traditional and novel instruments within their constitutional jurisdiction.

In the tradition of Latin American states, the amparo procedure works as an extraordinary legal remedy against violations of constitutional rights by officials and government agencies. The procedure has been created after the pattern of the habeas corpus right in anglo-american law. Up to the present day, it therefore mainly serves as an instrument protecting the individual person concerned. The judgment is restricted to an inter partes-effect strictly to be distinguished from the erga omnes-effect achieved by comprehensive constitutional review.

The paper presents a two-thread analysis of the evolution of constitutional jurisdiction in Latin America. It strives for a comprehensive classification for all countries. Graphical timelines for the country groups with diffuse judicial review and with concentrated judicial review are provided.

We conclude that notwithstanding great variety in development and reform, a specific model of constitutional justice has emerged among the Latin American countries. The model establishes a mix of integrated and specialized constitutional jurisdiction. On the one hand constitutional controls limited to an individual case are allocated to the amparo proceedings. They are institutionally integrated, functionally diffuse and entail a inter partes-effect. On the other hand the constitutional controls intended to have an overall effect throughout the legal system tend to be assigned to a special constitutional court. These controls are institutionally specialized, functionally increasingly concentrated and they involve an erga omnes-effect. Within this burden sharing model the Latin American tradition of an integrated constitutional jurisdiction is preserved. At the same time the advantages of specialized constitutional jurisdiction are acknowledged. This Continental European model, implemented throughout Europe after the example of Austria, now has gained a strong impact in Latin America.

Keywords: comparative law, constitutional law, judicial review, amparo, Argentina, Bolivia, Brazil, Costa Rica, Chile, Columbia, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay, Venezuela

JEL Classification: K1, K19

Suggested Citation

Tschentscher, Axel and Lehner, Caroline, The Latin American Model of Constitutional Jurisdiction: Amparo and Judicial Review (July 19, 2013). Available at SSRN: https://ssrn.com/abstract=2296004 or http://dx.doi.org/10.2139/ssrn.2296004

Axel Tschentscher (Contact Author)

Bern University - Law School ( email )

Institute for Public Law
Schanzeneckstrasse 1
Bern, Bern 3012
Switzerland
+41-31-631 88 99 (Phone)

HOME PAGE: http://www.oefre.unibe.ch/ueber_uns/personen/prof_dr_tschentscher_axel/index_ger.html

Caroline Lehner

University of Bern - School of Law ( email )

Schanzeneckstrasse 1
Bern, 3012
Switzerland
+41-31-631 4778 (Phone)

HOME PAGE: http://www.oefre.unibe.ch/content/ueber_uns/ordinariate/abteilung_axel_tschentscher/ass_lehner/index

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