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  • Print publication year: 2008
  • Online publication date: August 2009

Chapter Six - The Amparo as a Constitutional Right in Countries with Mixed Systems of Judicial Review of Legislation

Summary

THE AMPARO ACTION IN COUNTRIES WITH MIXED SYSTEMS (DIFFUSE AND CONCENTRATED) OF JUDICIAL REVIEW

Except in the case of Argentina, which remains the most similar to the “American model,” the system of judicial review in all the other Latin American countries applying the same diffuse method of judicial review has moved from the original, exclusively diffuse one toward a mixed one, by also adopting the concentrated method. This is the case in Brazil, Colombia, Dominican Republic, Ecuador, Guatemala, Mexico, Nicaragua, Peru and Venezuela. That means that in these countries, for the resolution of particular cases or controversies, all the courts are empowered to decide upon the unconstitutionality of legislation, and not to apply for the resolution of the case statutes they considered contrary to the constitution, giving preference to the latter; and at the same time, the Supreme Court or the Constitutional Court or Tribunal is also empowered to decide upon the unconstitutionality of statutes, when requested through a direct action that can be filed by some high public officials or by the citizenship, or when deciding incidental referrals on the constitutionality of statutes submitted by lower courts, with powers to annul, with general effects, the challenged statutes.

This has happened even in Mexico, a country that with the peculiarities of its juicio de amparo also moved in 1994 from the original diffuse system of judicial review, initially and precisely established with the amparo suit, to the current mixed system of judicial review by attributing to the Supreme Court the power to annul, with general effects, statutes directly challenged by some high officials.

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