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

Chapter Ten - The Justiciable Constitutional Rights by Means of the Amparo and Habeas Corpus Actions

Summary

CONSTITUTIONAL RIGHTS AND JUSTICIABILITY

As a matter of principle, not all personal rights are justiciables through the habeas corpus or amparo actions, which are only directed to protect those rights enshrined in the Constitution or those that have acquired constitutional rank and value; that is, those that even though also are regulated in statutes, they are out of reach from the Legislator in the sense that they cannot be eliminated, or diminished through statutes.

That is why the constitutional declarations of rights are so important for the Latin American systems of judicial protection of human rights, which have precisely originated the development of the amparo actions as a specific remedy for the protection of such rights in a different way to the United States injunction. In both cases they are extraordinary remedies, but contrary to the amparo that can only be filed for the protection of rights that have constitutional origin or rank, the injunctions are equitable remedies that can be filed for the protection of any kind of personal or property rights, even those of statutory or contractual origin, just provided that they cannot be effectively protected by ordinary common law courts.

In Latin America, on the contrary, rights that are only established in statutes and other lower rank regulations without constitutional foundations or that are not inherent to human beings, cannot be protected by means of amparo and habeas corpus actions, but only through the ordinary judicial remedies.

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