Constitutional Rights Amparo (writ of protection) - Argentina

1. Latin American Law Constitutional Rights Amparo (writ of protection) - Argentina Last updated 26 Oct 11[Chalchaleros]

2. What is writ of protection?

3. Writ of protection (Mexico) – T/F • The writ of protection can be brought against administrative, legislative and judicial acts to challenge illegal or unconstitutional acts • Writs of protection have binding effect only to the parties to the action; there is no precedential value when court issues writ. • A writ of protection permits parties to seek additional judicial review (by a circuit court) even after exhausting all regular appeals. • In Sugar Workers Union the Mexican Supreme Court reviewed on special appeal a writ invalidating a statute permitting exclusionary clauses in union contracts. • The Court opinion explained how the justices had balanced the constitutional rights of workers and those of unions. T Another Pop Quiz T T T F

4. Don’t cry for me Argentina … Judicial creation of writs of protection Beyond habeas corpus Private and public acts “Constitutionalization” Comparison to US civil rights remedies

5. Dominican Republic (2002) Cuba (1976) Mexico (1917) Puerto Rico (1952) Guatemala (1985) Honduras (1982) Venezuela (1999) El Salvador (1983) Colombia (1991) Nicaragua (1987) Ecuador (1998) Costa Rica (1949) Panama (1972) Peru (1993) Brazil (1988) Bolivia (1967) Why does Argentina have a writ of protection in its Constitution? Who is it aimed to protect? Paraguay (1992) Chile (1980) Uruguay (1967) Argentina (1994)

6. Siri v. Police Commissioner (Argentina Sup Ct 1957) “Constitutional principles as well as our country’s institutional experience demand that we guarantee the enjoyment, full exercise, and judicial enforcement of individual rights as part of the rule of law.” Judicial activism? Lauren Connell Dissent: “we must reiterate that judges may not pass on the adequacy of the means that Congress or the legislature has established to realize the purposes of the law” -- civilian to the core. Use of foreign sources Julia Di Vito

7. Kot v. Fistein (Argentina Sup Ct 1958) “There is nothing in either the letter or spirit of the Constitution to suggest limiting the protection of human rights … to cases in which the attack stems from the authorities.” “Judges must use the expeditious writ of protection to redress all clearly illegal restrictions on any of the basic human rights whenever relying on the ordinary judicial or administrative procedures would result in serious and irreparable harm.” “… consortiums, unions, professional associations, and large enterprises … wielded enormous … power, often rivaling that of the state,”

8. Compare Argentine writ of protection to US civil rights litigation? Keith Orgel

9. UDHR Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

10. Drawing a line between state actors and private parties “preserve[s] an area of individual freedom by limiting the reach of federal law and avoi[ds] the imposition of responsibility of a State for conduct it could not control, but also…assure[s] that constitutional standards are invoked when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.” Brentwood Acad. (US 2001) Keith Orgel

11. Shelley v. Kramer (US 1948) • restrictive covenants • Hansberry v. Lee (US 1940) • “Raisin in the Sun” [student]

12. How does writ of protection work against “dirty war”? Ultimately, the Writs of Protection, while ostensibly giving a great deal of authority and discretion to the judiciary, simply could not withstand the continued display of force and intimidation produced by the military Junta and the paramilitary Peronist groups. Keith Orgel

13. How do Siri and Kot come out after Argentina’s 1994 Constitution? Congreso de la Nacion - Argentina [student]

14. Argentina Constitution Art 43. Any person shall file a prompt and summary proceeding regarding constitutional guarantees, provided there is no other legal remedy, against any act or omission of the public authorities or of private parties which currently or imminently may damage, limit, modify or threaten rights and guarantees recognized by this Constitution, treaties or laws, with open arbitrariness or illegality. In such case, the judge may declare that the act or omission is based on an unconstitutional rule. … How different from court-created remedy? Why needed Keith Orgel

15. Hypothetical … How do cases come out in US? xx

16. Argentina Constitution Art 43. Any person shall file a prompt and summary proceeding regarding constitutional guarantees, provided there is no other legal remedy, against any act or omission of the public authorities or of private parties which currently or imminently may damage, limit, modify or threaten rights and guarantees recognized by this Constitution, treaties or laws, with open arbitrariness or illegality. In such case, the judge may declare that the act or omission is based on an unconstitutional rule. … § 1983. Civil action for deprivation of rights Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress,

17. Protection against illegal state action (US federal system) Supreme court Mandamus (implied) mandamus appeal State action Circuit court Mandamus (implied) Rule 81 abolishes mandamus mandamus appeal Case orcontroversy District court

18. Should constitutional protections extend to actions by corporations? Lauren Connell

19. End

20. George Bush Ed Felien

21. As of Wednesday morning, Bolivia’s "night-workers" are on strike. Up to 35,000 prostitutes across the country have refused to report for the medical checkups required every 20 days to legally work the streets. By continuing to serve clients without ensuring they're disease-free, the sex-workers' action raises the risk to public health. It comes in response to attacks in the city of El Alto last week in which citizens burned brothels and beat sex-workers in protest against legal prostitution.

22. US hypothetical … Federal marshals close down a blog that suggests ways to cheat on your taxes. What legal remedies are available to the blogger to challenge the action as unconstitutional?

23. Venezuela Toni Peters

24. In Kot, the dissent notes that “we must reiterate that judges may not pass on the adequacy of the means that Congress or the legislature has established to realize the purposes of the law” -- civilian to the core. But this is side-stepped by the majorities in both cases. Chad Fights

25. Article 33 reads: “The declarations, rights and guarantees that the Constitution enumerates, will not be understood to be negation of other rights and guarantees not enumerated….” No restriction on writ of protection, but nothing to suggest available against public authorities or individuals. Jen Beatty