Advisory opinion

An advisory opinion is an opinion issued by a court or a commission like an election commission 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.

International Courts

International Court of Justice

The International Court of Justice 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.

Inter-American Court of Human Rights

The advisory function of the Inter-American Court of Human Rights 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.

• List of Advisory Opinions of the Inter-American Court of Human Rights.

National Courts

Canada

Under Canadian 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.

Nauru

Article 55 of the Constitution of Nauru 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:

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

United States federal courts

The United States Supreme Court has determined that the case or controversy 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.^{[citation needed]}

United States state courts

Many state courts are similarly barred from issuing advisory opinions, although there are often specific exceptions to these limitations. Some states, 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 questions 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 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.

See also

• Declaratory judgment - a binding opinion assigning rights, duties, and obligations within a specific case or controversy.