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Mexico Enacts New Amparo Law

April 10, 2013
Mexico Enacts New Amparo Law

The constitutional writ of protection or "Amparo" is one of the defining juridical concepts of the Mexican legal system. For many years, the abuse of this procedural writ has been discussed in academic and legal circles. The purpose of the Amparo writ is to guarantee the rights of Mexican citizens against abuses by governmental authorities. The Mexican writ of Amparo is a unique figure in the world, though it has been compared to other legal instruments that protect the rights of citizens such as the writ of habeas corpus, and other rights featured in the Spanish legal system. For the past thirteen years there have been discussions in Mexico regarding the need to amend the Amparo Law ("Ley de Amparo") in order to modernize such and avoid abuses in its application, as well as to guarantee the application of other laws or regulations that have been thwarted through the improper use of Amparo procedures. In this regard, in the past it was common for businesses to obtain Amparo protection when they failed to comply with required health and safety standards by improperly obtaining an Amparo issued by a local federal judge, or to use Amparos to override the issuance of an order for closure of their business by local authorities. This scenario has led, on repeated occasions, to delays and the subversion of justice, under the guise of a supposed protection of human rights and guaranties. The new law is an important development in Mexican civil society and the national legal system that is attributable to input from litigation attorneys, academic institutions, bar associations and professional groups, judicial authorities, executive branch officials and, finally, the legislators who finally created the form and structure of the new law, which has now been enacted by President Enrique Peña Nieto. Some new features of this law include the fact that an Amparo decision may now be subject to a declaration from Mexico's Supreme Court regarding the unconstitutionality of a general rule or regulation. For example, if the governing authority decides to halt the construction of a project because construction or environmental regulations have been violated and a business affected by such suspension seeks Amparo protection, the judge may then decide whether or not to suspend such decision in accordance with the best interest of society. In making this determination, the judge will review the statements provided by the company in its Amparo lawsuit petition. The new Amparo Law is consistent with Mexican constitutional reforms enacted in 2011 regarding human rights, insofar as such extend the scope of protection of an Amparo lawsuit to protect not only the fundamental rights established in the Mexican Constitution, but also human rights established in international treaties signed by Mexico. The new law overrides a prior Supreme Court decision which distorted the Mexican Amparo feature known as "legal interest" and substitutes such concept with the term "legitimate interest," with which courts will be able to protect both general and collective interests, such as environmental rights, cultural or patrimonial historical rights or rights of urbanism and development, through Amparo procedures. In regard to the suspension of governmental actions complained of by Amparo petitioners, there will now be greater efficacy and fewer abuses. Judges will have to consider the probable invalidity of the act being complained of and, if an act is suspended, it must be for its arbitrariness. At the same time, the judge must consider the effects of a suspension on government programs and services. All of this points to a new era in the Mexican legal system in which all the parties, along with the judges who preside over such parties' cases in federal court, will have to take special precautions and care in order to comply with the objectives of the new Amparo Law, which seek to achieve greater justice for Mexico.

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