Advisory opinion
Encyclopedia
An advisory opinion is an opinion issued by a court
that does not have the effect of adjudicating a specific legal case
, but merely advises on the constitutionality or interpretation of a law. Some countries have procedures by which the executive or legislative branches may certify important questions to the judiciary
and obtain an advisory opinion. In other countries or specific jurisdictions, courts may be prohibited from issuing advisory opinions.
is empowered to give advisory opinions under Chapter IV of its Statute (an annex to the United Nations Charter
) when requested to do so by certain organs or agencies of the United Nations
. These opinions are non-binding, but Pieter H.F. Bekker has argued that this non-binding character does not mean that advisory opinions are without legal effect, because the legal reasoning embodied in them reflects the Court's authoritative views on important issues of international law and, in arriving at them, the Court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign states. In his view, an advisory opinion derives its status and authority from the fact that it is the official pronouncement of the principal judicial organ of the United Nations.
Advisory Opinions have often been controversial, either because the questions asked were controversial, or because the case was pursued as a "backdoor" way of bringing what is really a contentious case before the Court. The full list of the court's advisory opinions can be found in the section advisory opinions in the List of International Court of Justice cases article.
enables it to respond to consultations submitted by agencies and member states of the Organization of American States
regarding the interpretation of the American Convention on Human Rights
or other instruments governing human rights in the Americas
. It is also empowered to give advice on domestic laws and proposed legislation, and whether or not they are compatible with the Convention's provisions.
Law
, the reference question
mechanism is equivalent to an advisory opinion.
The Supreme Court of Canada
will answer reference questions put forward by the Federal Government, while Provincial or Territorial government can put forward their question to their provincial/territorial highest appellate court for answer. If the provincial question was not answered or the government seek clarification on the answer, they can 'appeal' to the Supreme Court of Canada
.
provides: "The President
or a Minister may, in accordance with the approval of the Cabinet
, refer to the Supreme Court
for its opinion any question concerning the interpretation or effect of any provision of this Constitution which has arisen or appears to the Cabinet likely to arise, and the Supreme Court shall pronounce in open court its opinion on the question."
This article has been put to use on six occasions, in the following cases, in which the Cabinet sought an advisory opinion from the Supreme Court on hypothetical cases relating to an interpretation of constitutional provisions: Three Questions Referred under Articles 36 & 55 of the Constitution (1977); Four Questions Referred under Article 55 of the Constitution (1977); Constitutional Reference; In re Article 55 of the Constitution (2003); Constitutional Reference; In re Dual Nationality and Other Questions (2004); In the Matter of Article 55 & 45 (and Article 36 & 40) of the Constitution (2007); and In the Matter of Article 55 & 45 (and Article 36 & 40) of the Constitution (2008).
In Constitutional Reference; In re Dual Nationality and Other Questions (2004), Chief Justice Barry Connell made the following remarks in relation to the nature of article 55:
requirement found in Article Three of the United States Constitution
prohibits United States federal courts
from issuing advisory opinions. Accordingly, before the court will hear a case, it must find that the parties have a tangible interest at stake in the matter, the issue presented must be "mature for judicial resolution" or ripe and a justiciable issue must remain before the court throughout the course of the lawsuit. While this doctrine is still in full force, there has been a liberalization of these requirements in recent years.
In a letter to President George Washington
, replying to the president's request for such an opinion, then-Chief Justice John Jay
replied that it would violate the separation of powers
for the Supreme Court to provide such an opinion, noting that the president could rely on advice from anyone within the executive branch under Article Two of the United States Constitution
which expressly permits the President of the United States
to "require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices." In other words, Jay informed President Washington that the President ought to turn to the Attorney General
and perhaps other Cabinet secretaries when they require legal advice concerning American
law. Over a century later the Court dismissed a case because there was no "actual controversy" between the parties; thus, any opinion rendered would be advisory.
, like Rhode Island
, permit the governor to certify questions on the constitutionality of laws to the state
supreme court. Also, some states require their supreme court to give advisory opinions on particular matters, such as whether proposed amendments to the state constitution
violate the U.S. Constitution.
Eight states have provisions in their constitutions permitting or requiring their supreme courts to give advisory opinions to the governor or legislature: Colorado
, Florida
, Maine
, Massachusetts
, Michigan
, New Hampshire
, Rhode Island
and South Dakota
. Two states
provide for supreme court advisory opinions by statute: Alabama
and Delaware
. The texts of all the advisory opinion provisions are collected in M. Topf, "The Jurisprudence of the Advisory Opinion Process in Rhode Island," Roger Williams University Law Review, Vol. 2, Spring 1997, at 254-256. The article also gives a general treatment of how the advisory opinion process works. Topf also follows the story of the creation of a single Rhode Island advisory opinion (the only article to do so) in "The Advisory Opinion on Separation of Powers," Roger Williams University Law Review, vol. 5, Spring 2000, at 385-416.
Advisory opinions should not be confused with certified question
s by one court to another, which are permissible. U.S. federal courts, when confronted with real cases or controversies in which the federal court's decision will turn in part on a question of state law, occasionally ask the highest court of the relevant state to give an authoritative answer to the state-law question, which the federal court will then apply to its resolution of the federal case (see e.g. Pullman abstention). Because the state court in such circumstances is giving an opinion that affects an actual case, it is not considered to be issuing an advisory opinion.
The Florida Supreme Court
has two specific constitutional grants of authority to issue advisory opinions. First, it can issue an advisory opinion to the Governor of Florida on constitutional questions affecting the powers of the state's executive branch. Second, it can issue an advisory opinion to the Attorney General
about two narrow legal issues affecting proposed citizens' initiatives to amend the state Constitution
. These two issues are whether the ballot summary is fair and accurate and whether the initiative contains only a single subject as required by law. The Florida Supreme Court cannot include any other issue in its advisory opinion, including whether or not the initiative would be constitutional if adopted by the voters in the required statewide election.
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
that does not have the effect of adjudicating a specific legal case
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
, but merely advises on the constitutionality or interpretation of a law. Some countries have procedures by which the executive or legislative branches may certify important questions to the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
and obtain an advisory opinion. In other countries or specific jurisdictions, courts may be prohibited from issuing advisory opinions.
International Court of Justice
The International Court of JusticeInternational Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
is empowered to give advisory opinions under Chapter IV of its Statute (an annex to the United Nations Charter
United Nations Charter
The Charter of the United Nations is the foundational treaty of the international organization called the United Nations. It was signed at the San Francisco War Memorial and Performing Arts Center in San Francisco, United States, on 26 June 1945, by 50 of the 51 original member countries...
) when requested to do so by certain organs or agencies of the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
. These opinions are non-binding, but Pieter H.F. Bekker has argued that this non-binding character does not mean that advisory opinions are without legal effect, because the legal reasoning embodied in them reflects the Court's authoritative views on important issues of international law and, in arriving at them, the Court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign states. In his view, an advisory opinion derives its status and authority from the fact that it is the official pronouncement of the principal judicial organ of the United Nations.
Advisory Opinions have often been controversial, either because the questions asked were controversial, or because the case was pursued as a "backdoor" way of bringing what is really a contentious case before the Court. The full list of the court's advisory opinions can be found in the section advisory opinions in the List of International Court of Justice cases article.
Inter-American Court of Human Rights
The advisory function of the Inter-American Court of Human RightsInter-American Court of Human Rights
The Inter-American Court of Human Rights is an autonomous judicial institution based in the city of San José, Costa Rica. Together with the Inter-American Commission on Human Rights, it makes up the human rights protection system of the Organization of American States , which serves to uphold and...
enables it to respond to consultations submitted by agencies and member states of the Organization of American States
Organization of American States
The Organization of American States is a regional international organization, headquartered in Washington, D.C., United States...
regarding the interpretation of the American Convention on Human Rights
American Convention on Human Rights
The American Convention on Human Rights is an international human rights instrument.It was adopted by the nations of the Americas meeting in San José, Costa Rica, in 22 November 1969...
or other instruments governing human rights in the Americas
Americas
The Americas, or America , are lands in the Western hemisphere, also known as the New World. In English, the plural form the Americas is often used to refer to the landmasses of North America and South America with their associated islands and regions, while the singular form America is primarily...
. It is also empowered to give advice on domestic laws and proposed legislation, and whether or not they are compatible with the Convention's provisions.
Canada
Under CanadianCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
Law
Law of Canada
The Canadian legal system has its foundation in the British common law system, inherited from being a former colony of the United Kingdom and later a member of the Commonwealth of Nations. Quebec, however, still retains a civil system for issues of private law...
, the reference question
Reference question
In Canadian law, a Reference Question is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue. Typically the question concerns the constitutionality of legislation....
mechanism is equivalent to an advisory opinion.
The Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
will answer reference questions put forward by the Federal Government, while Provincial or Territorial government can put forward their question to their provincial/territorial highest appellate court for answer. If the provincial question was not answered or the government seek clarification on the answer, they can 'appeal' to the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
.
Nauru
Article 55 of the Constitution of NauruConstitution of Nauru
The constitution of the Republic of Nauru was adopted following national independence on 31 January 1968.In 2007 there were political debates in progress with a view to amend aspects of the Constitution, owing to the challenge of widely acknowledged political instability...
provides: "The President
President of Nauru
The President of Nauru is elected by Parliament from amongst its members. He is both the head of state and head of government of Nauru. Nauru's unicameral Parliament has 18 members, with an electoral term of 3 years. Political parties only play a minor role in Nauru politics, and there has often...
or a Minister may, in accordance with the approval of the Cabinet
Cabinet of Nauru
The Cabinet of Nauru is the cabinet of the government of the Republic of Nauru.The Constitution of Nauru specifies that the Cabinet is composed of the President and of four or five members of Parliament appointed to Cabinet positions by the President.The Cabinet is "collectively responsible to...
, refer to the Supreme Court
Supreme Court of Nauru
The Supreme Court of Nauru is the highest judicial court of the Republic of Nauru.-Constitutional establishment:It is established by part V of the Constitution, adopted upon Nauru's independence from Australia in 1968. Art. 48 of the Constitution establishes the Supreme Court as "a superior court...
for its opinion any question concerning the interpretation or effect of any provision of this Constitution which has arisen or appears to the Cabinet likely to arise, and the Supreme Court shall pronounce in open court its opinion on the question."
This article has been put to use on six occasions, in the following cases, in which the Cabinet sought an advisory opinion from the Supreme Court on hypothetical cases relating to an interpretation of constitutional provisions: Three Questions Referred under Articles 36 & 55 of the Constitution (1977); Four Questions Referred under Article 55 of the Constitution (1977); Constitutional Reference; In re Article 55 of the Constitution (2003); Constitutional Reference; In re Dual Nationality and Other Questions (2004); In the Matter of Article 55 & 45 (and Article 36 & 40) of the Constitution (2007); and In the Matter of Article 55 & 45 (and Article 36 & 40) of the Constitution (2008).
In Constitutional Reference; In re Dual Nationality and Other Questions (2004), Chief Justice Barry Connell made the following remarks in relation to the nature of article 55:
- The referral provision in the Constitution is an unusual process, not always available under other written constitutions but, nevertheless, Article 55 has been used on a number of occasions in Nauru. It is unusual in that Courts will not normally exercise jurisdiction in a case without a justiciable matter. Courts normally will not conduct a case on a hypothetical question. However, under Article 55, the Court is enjoined to give an Opinion where Cabinet, and only Cabinet, desires an interpretation or effect of a provision of the Constitution where the question has arisen or appears to the Cabinet likely to arise [...].
- On account of the nature of Article 55, the Court must limit itself to the questions asked. Whilst the Court gives what is termed an Opinion, one must realise that it is a constitutional opinion based on law. Such an Opinion carries legal weight, so far as it goes, but it must itself be susceptible to the normal canons of interpretation in the event of a particular disputed question brought before the Court.
United States federal courts
The United States Supreme Court has determined that the case or controversyCase or controversy
The Case or Controversy Clause of Article III of the United States Constitution has been deemed to impose a requirement that United States federal courts are not permitted to hear cases that do not pose an actual controversy — that is, an actual dispute between adverse parties which is capable of...
requirement found in Article Three of the United States Constitution
Article Three of the United States Constitution
Article Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress.-Section 1: Federal courts:...
prohibits United States federal courts
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
from issuing advisory opinions. Accordingly, before the court will hear a case, it must find that the parties have a tangible interest at stake in the matter, the issue presented must be "mature for judicial resolution" or ripe and a justiciable issue must remain before the court throughout the course of the lawsuit. While this doctrine is still in full force, there has been a liberalization of these requirements in recent years.
In a letter to President George Washington
George Washington
George Washington was the dominant military and political leader of the new United States of America from 1775 to 1799. He led the American victory over Great Britain in the American Revolutionary War as commander-in-chief of the Continental Army from 1775 to 1783, and presided over the writing of...
, replying to the president's request for such an opinion, then-Chief Justice John Jay
John Jay
John Jay was an American politician, statesman, revolutionary, diplomat, a Founding Father of the United States, and the first Chief Justice of the United States ....
replied that it would violate the separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
for the Supreme Court to provide such an opinion, noting that the president could rely on advice from anyone within the executive branch under Article Two of the United States Constitution
Article Two of the United States Constitution
Article Two of the United States Constitution creates the executive branch of the government, consisting of the President and other executive officers.-Clause 1: Executive power:...
which expressly permits the President of the United States
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
to "require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices." In other words, Jay informed President Washington that the President ought to turn to the Attorney General
United States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
and perhaps other Cabinet secretaries when they require legal advice concerning American
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
law. Over a century later the Court dismissed a case because there was no "actual controversy" between the parties; thus, any opinion rendered would be advisory.
United States state courts
Many state courts are similarly barred from issuing advisory opinions, although there are often specific exceptions to these limitations. Some statesU.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
, like Rhode Island
Rhode Island
The state of Rhode Island and Providence Plantations, more commonly referred to as Rhode Island , is a state in the New England region of the United States. It is the smallest U.S. state by area...
, permit the governor to certify questions on the constitutionality of laws to the state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
supreme court. Also, some states require their supreme court to give advisory opinions on particular matters, such as whether proposed amendments to the state constitution
State constitution (United States)
In the United States, each state has its own constitution.Usually, they are longer than the 7,500-word federal Constitution and are more detailed regarding the day-to-day relationships between government and the people. The shortest is the Constitution of Vermont, adopted in 1793 and currently...
violate the U.S. Constitution.
Eight states have provisions in their constitutions permitting or requiring their supreme courts to give advisory opinions to the governor or legislature: Colorado
Colorado
Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...
, Florida
Florida
Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
, Maine
Maine
Maine is a state in the New England region of the northeastern United States, bordered by the Atlantic Ocean to the east and south, New Hampshire to the west, and the Canadian provinces of Quebec to the northwest and New Brunswick to the northeast. Maine is both the northernmost and easternmost...
, Massachusetts
Massachusetts
The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...
, Michigan
Michigan
Michigan is a U.S. state located in the Great Lakes Region of the United States of America. The name Michigan is the French form of the Ojibwa word mishigamaa, meaning "large water" or "large lake"....
, New Hampshire
New Hampshire
New Hampshire is a state in the New England region of the northeastern United States of America. The state was named after the southern English county of Hampshire. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Atlantic Ocean to the east, and the Canadian...
, Rhode Island
Rhode Island
The state of Rhode Island and Providence Plantations, more commonly referred to as Rhode Island , is a state in the New England region of the United States. It is the smallest U.S. state by area...
and South Dakota
South Dakota
South Dakota is a state located in the Midwestern region of the United States. It is named after the Lakota and Dakota Sioux American Indian tribes. Once a part of Dakota Territory, South Dakota became a state on November 2, 1889. The state has an area of and an estimated population of just over...
. Two states
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
provide for supreme court advisory opinions by statute: Alabama
Alabama
Alabama is a state located in the southeastern region of the United States. It is bordered by Tennessee to the north, Georgia to the east, Florida and the Gulf of Mexico to the south, and Mississippi to the west. Alabama ranks 30th in total land area and ranks second in the size of its inland...
and Delaware
Delaware
Delaware is a U.S. state located on the Atlantic Coast in the Mid-Atlantic region of the United States. It is bordered to the south and west by Maryland, and to the north by Pennsylvania...
. The texts of all the advisory opinion provisions are collected in M. Topf, "The Jurisprudence of the Advisory Opinion Process in Rhode Island," Roger Williams University Law Review, Vol. 2, Spring 1997, at 254-256. The article also gives a general treatment of how the advisory opinion process works. Topf also follows the story of the creation of a single Rhode Island advisory opinion (the only article to do so) in "The Advisory Opinion on Separation of Powers," Roger Williams University Law Review, vol. 5, Spring 2000, at 385-416.
Advisory opinions should not be confused with certified question
Certified question
In the law of the United States, a certified question is a formal request by one court to one of its sister courts, usually but not always in another jurisdiction, for an opinion on a question of law....
s by one court to another, which are permissible. U.S. federal courts, when confronted with real cases or controversies in which the federal court's decision will turn in part on a question of state law, occasionally ask the highest court of the relevant state to give an authoritative answer to the state-law question, which the federal court will then apply to its resolution of the federal case (see e.g. Pullman abstention). Because the state court in such circumstances is giving an opinion that affects an actual case, it is not considered to be issuing an advisory opinion.
Florida
The Florida Supreme Court
Florida Supreme Court
The Supreme Court of the State of Florida is the highest court in the U.S. state of Florida. The Supreme Court consists of seven judges: the Chief Justice and six Justices who are appointed by the Governor to 6-year terms and remain in office if retained in a general election near the end of each...
has two specific constitutional grants of authority to issue advisory opinions. First, it can issue an advisory opinion to the Governor of Florida on constitutional questions affecting the powers of the state's executive branch. Second, it can issue an advisory opinion to the Attorney General
Attorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
about two narrow legal issues affecting proposed citizens' initiatives to amend the state Constitution
Florida Constitution
The Constitution of the State of Florida is the document that establishes and describes the duties, powers, structure and function of the government of the U.S. state of Florida, and establishes the basic law of the state....
. These two issues are whether the ballot summary is fair and accurate and whether the initiative contains only a single subject as required by law. The Florida Supreme Court cannot include any other issue in its advisory opinion, including whether or not the initiative would be constitutional if adopted by the voters in the required statewide election.
See also
- Declaratory judgmentDeclaratory judgmentA declaratory judgment is a judgment of a court in a civil case which declares the rights, duties, or obligations of one or more parties in a dispute. A declaratory judgment is legally binding, but it does not order any action by a party. In this way, the declaratory judgment is like an action to...
- a binding opinion assigning rights, duties, and obligations within a specific case or controversy.