The recurso de amparo, or, in its simplified form, amparo, is a figure peculiar to the legal systems of a number of Spanish-speaking countries. Because of its specificity, it is frequently preserved in bilingual clauses such as “amparo remedy” or “amparo writ” – although, as we shall see, its rendering as “constitutional challenge” is becoming widespread.

The Spanish word amparo literally means “shelter” or “protection”, while a recurso de amparo is an extraordinary legal remedy, enshrined in the constitution of most Spanish-speaking countries,^[1] that is intended to safeguard the constitutional rights of natural or legal persons by challenging actions or omissions by public authorities or private parties that violate constitutional rights, as well as potentially unconstitutional laws. A relatively quick and inexpensive legal procedure, as opposed to regular litigation, it serves a twofold purpose: on the one hand, it is designed to protect natural persons and their constitutional guarantees; on the other hand, it protects the constitution itself by ensuring that its principles are not infringed by lesser laws.

Historically, it can be traced back to 19^th-century Mexico, inspired in part by the description of judicial review practices in the United States as reported by Alexis de Tocqueville’s Democracy in America:

(…) the power granted to American courts to rule on the unconstitutionality of laws still forms one of the most powerful barriers that has ever been raised against the tyranny of political assemblies.

And:

(…) the judicial power in the United States is a barrier raised by design against the omnipotence of the majority.

Indeed, the intellectual and legal milieu surrounding the 1857 Mexican Constitution was strongly influenced by de Tocqueville’s defence of separation of powers, the free exercise of citizenship, and the ability to protect that freedom against any despotic authority. As legal historian Martha María del Carmen Hernández Álvarez has pointed out,

(…) the amparo judgement was not conceived in isolation as a possible ‘appeal’, but as part of a political and constitutional system, and it could even be said that it emerged as a fundamental part of the 19th-century liberal State. (p. 122)

From Mexico, amparo extended to Spain and other former Spanish possessions, where it still exists: Argentina, Bolivia, Chile, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Panama, Paraguay, Peru, and the Philippines.

The term is sometimes translated as habeas corpus: yet the scope of amparo is broader than that of habeas corpus as it covers a range of constitutional rights that go beyond personal freedom. Instances of its use range from challenges against laws that are considered to breach the constitution to appeals against wrongful imprisonment, through appeals filed by owners’ associations against public or private works which they believe breach their constitutional rights.

Another rendering that is sometimes found is “writ of security”, a direct translation of the Brazilian Portuguese mandado de segurança, which, like amparo, is a legal remedy intended to protect constitutional rights. However, the scope of the mandado de segurança is more limited, as it focuses on “clear and certain rights” that are not protected by habeas corpus or habeas data. While amparo typically involves a two-stage process (admissibility and merits), the mandado de segurança is typically a single-stage process. And whereas a recurso de amparo can usually be filed by a wide range of parties, including public prosecutors and ombudsmen, a mandado de segurança can only be filed by the affected individual or legal entity. Finally, in Spanish-language jurisdictions, the amparo is more flexible and comprehensive, serving as a catch-all remedy for rights not covered by other specific remedies; by contrast, the Brazilian mandado de segurança is more specific, being one of a range of constitutional remedies.

As stated above, “constitutional challenge” is emerging as a potential translation for amparo. This option does not explicitly reflect the variety of paths through which its protection applies to those affected – directly, by protecting the constitutional rights of specific natural or legal persons, and more generally and indirectly, by preventing lesser laws from contradicting constitutional principles. Nonetheless, “constitutional challenge” does capture the essential function of the recurso de amparo, which is that of seeking protection under the constitution.