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An advisory opinion is an opinion issued by a
court A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in acco ...
or a commission like an election commission that does not have the effect of adjudicating a specific
legal case A legal case is in a general sense a dispute between opposing parties which may be resolved by a court, or by some equivalent legal process. A legal case is typically based on either civil or criminal law. In most legal cases there are one or mo ...
, but merely advises on the constitutionality or interpretation of a law. Some countries have procedures by which the
executive Executive ( exe., exec., execu.) may refer to: Role or title * Executive, a senior management role in an organization ** Chief executive officer (CEO), one of the highest-ranking corporate officers (executives) or administrators ** Executive dir ...
or
legislative branch A legislature is an assembly with the authority to make laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government. Laws enacted by legislatures are usually known ...
es may certify important questions to the
judiciary The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
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 The International Court of Justice (ICJ; french: Cour internationale de justice, links=no; ), sometimes known as the World Court, is one of the six principal organs of the United Nations (UN). It settles disputes between states in accordanc ...
is empowered to give advisory opinions under Chapter IV of its Statute (an annex to the
United Nations Charter The Charter of the United Nations (UN) is the foundational treaty of the UN, an intergovernmental organization. It establishes the purposes, governing structure, and overall framework of the UN system, including its six principal organs: the ...
) when requested to do so by certain organs or agencies of the
United Nations The United Nations (UN) is an intergovernmental organization whose stated purposes are to maintain international peace and security, develop friendly relations among nations, achieve international cooperation, and be a centre for harmoniz ...
. These opinions are non-binding.


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 The American Convention on Human Rights, also known as the Pact of San José, is an international human rights instrument. It was adopted by many countries in the Western Hemisphere in San José, Costa Rica, on 22 November 1969. It came into for ...
or other instruments governing human rights in the
Americas The Americas, which are sometimes collectively called America, are a landmass comprising the totality of North and South America. The Americas make up most of the land in Earth's Western Hemisphere and comprise the New World. Along with th ...
. 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 o
Advisory Opinions of the Inter-American Court of Human Rights.


National courts


Australia

The High Court of Australia is prohibited by the Constitution of Australia from issuing advisory opinions; a binding determination requires a controversy between two parties. During certain episodes in Australia's legal history, such as the
1975 Australian constitutional crisis The 1975 Australian constitutional crisis, also known simply as the Dismissal, culminated on 11 November 1975 with the dismissal from office of the prime minister, Gough Whitlam of the Australian Labor Party (ALP), by Governor-General Sir J ...
, politicians have sometimes solicited informal advice from Justices of the High Court in their personal capacity.


Canada

Under
Canadian law The legal system of Canada is pluralist: its foundations lie in the English common law system (inherited from its period as a colony of the British Empire), the French civil law system (inherited from its French Empire past), and Indigenous ...
, the
reference question In Canadian law, a reference question or reference case (formally called abstract review) 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 conc ...
mechanism is equivalent to an advisory opinion. The ''
Supreme Court Act The ''Supreme Court Act'' (the ''Act'') is an Act passed by the Parliament of Canada which established the Supreme Court of Canada. It was originally passed in 1875 as the ''Supreme and Exchequer Courts Act''. However, at the time, the Supreme Co ...
'' gives the federal Cabinet the power to refer questions to the Supreme Court of Canada on any questions of law. The Supreme Court then has jurisdiction to hold a hearing on the reference, just like an appeal. The Attorney General of Canada participates in a federal reference. The provincial and territorial Attorneys General have the right to intervene, and interested parties may apply to intervene. The parties make detailed written submissions to the Court, which then holds a hearing. It typically reserves its decision, later releasing a written opinion. The Court has a discretion to refuse to answer questions which are too ambiguous or will not provide an answer with any meaning. The Provincial governments and some of the territories have a similar power to refer questions to their highest appeal courts for an opinion. This power is set out in their respective provincial laws defining the powers of the appellate courts. The ''Supreme Court Act'' gives an automatic right of appeal from a reference decision of a provincial Court of Appeal to the Supreme Court of Canada.


India

In
India India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the seventh-largest country by area, the second-most populous country, and the most populous democracy in the world. Bounded by the Indian Ocean on the so ...
, the
President of India The president of India ( IAST: ) is the head of state of the Republic of India. The president is the nominal head of the executive, the first citizen of the country, as well as the commander-in-chief of the Indian Armed Forces. Droupadi Mur ...
can request the Supreme Court of India to provide its advice on certain matters. This procedure is called ''"Presidential Reference"''. According to Article 143 of the Constitution of India, the President of India may refer to the Supreme Court of India, a question of law or fact which, he thinks, is of public importance. It is not binding on the Supreme Court to answer questions raised in the reference. For a detailed analysis of this provision, please see the widely cited article authored by noted Indian lawyer: Mr. Deepaloke Chatterjee.


Ireland


Nauru

Article 55 of the
Constitution 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 acknowle ...
provides: "The
President President most commonly refers to: *President (corporate title) * President (education), a leader of a college or university * President (government title) President may also refer to: Automobiles * Nissan President, a 1966–2010 Japanese ...
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 Barry may refer to: People and fictional characters * Barry (name), including lists of people with the given name, nickname or surname, as well as fictional characters with the given name * Dancing Barry, stage name of Barry Richards (born c. 19 ...
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.''


Singapore


United States


Federal courts

The
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
has determined that the
case or controversy The Supreme Court of the United States has interpreted the Case or Controversy Clause of Article III of the United States Constitution (found in Art. III, Section 2, Clause 1) as embodying two distinct limitations on exercise of judicial review: ...
requirement found in
Article Three of the United States Constitution Article Three of the United States Constitution establishes the judicial branch of the U.S. federal government. Under Article Three, the judicial branch consists of the Supreme Court of the United States, as well as lower courts created by Congres ...
prohibits
United States federal courts The federal judiciary of the United States is one of the three branches of the federal government of the United States organized under the United States Constitution and laws of the federal government. The U.S. federal judiciary consists primaril ...
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 Réseaux IP Européens (RIPE, French for "European IP Networks") is a forum open to all parties with an interest in the technical development of the Internet. The RIPE community's objective is to ensure that the administrative and technical coor ...
, and a
justiciable Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is used to determine if the party bringing the suit is a party ...
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 President most commonly refers to: *President (corporate title) * President (education), a leader of a college or university * President (government title) President may also refer to: Automobiles * Nissan President, a 1966–2010 Japanese ...
George Washington George Washington (February 22, 1732, 1799) was an American military officer, statesman, and Founding Father who served as the first president of the United States from 1789 to 1797. Appointed by the Continental Congress as commander of ...
, replying to the president's request for such an opinion, then-Chief Justice
John Jay John Jay (December 12, 1745 – May 17, 1829) was an American statesman, patriot, diplomat, abolitionist, signatory of the Treaty of Paris, and a Founding Father of the United States. He served as the second governor of New York and the f ...
replied that it would violate the
separation of powers Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
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 establishes the executive branch of the federal government, which carries out and enforces federal laws. Article Two vests the power of the executive branch in the office of the president of the Unite ...
which expressly permits the
President of the United States The president of the United States (POTUS) is the head of state and head of government of the United States of America. The president directs the executive branch of the federal government and is the commander-in-chief 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.


State courts

State courts are not subject to U.S. Constitution's Article III case or controversy limitation. Many state courts are barred from issuing advisory opinions by their own constitutions, although there are often specific exceptions to these limitations. Some states, like
Rhode Island Rhode Island (, like ''road'') is a state in the New England region of the Northeastern United States. It is the smallest U.S. state by area and the seventh-least populous, with slightly fewer than 1.1 million residents as of 2020, but it ...
, permit the governor to certify questions on the constitutionality of laws to the
state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States * ''Our S ...
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. Statutory or constitutional provisions in Alabama, Colorado, Delaware, Florida, Maine, Massachusetts, Michigan, New Hampshire, Oklahoma, Rhode Island, and South Dakota allow their highest courts to issue advisory opinions in some circumstances. Several other states, including Kentucky, Minnesota, Missouri, and Vermont, once allowed for advisory opinions by statute or constitution, but have since abandoned the practice.Jonathan D. Persky, Note, ''‘‘Ghosts that Slay”: A Contemporary Look at State Advisory Opinions'', 37 CONN. L. REV. 1155, 1168-69 (2005). Advisory opinions should not be confused with
certified question In the law of the United States, a certified question is a formal request by one court from another court, usually but not always in another jurisdiction, for an opinion on a question of law. These cases typically arise when the court before whic ...
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 whole or in part on a question of state law (e.g.
diversity Diversity, diversify, or diverse may refer to: Business *Diversity (business), the inclusion of people of different identities (ethnicity, gender, age) in the workforce *Diversity marketing, marketing communication targeting diverse customers * ...
cases under the ''Erie'' doctrine or issues in which federal law incorporates state law by reference, such as exemptions in bankruptcy), 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.


See also

*
Declaratory judgment A declaratory judgment, also called a declaration, is the legal determination of a court that resolves legal uncertainty for the litigants. It is a form of legally binding preventive by which a party involved in an actual or possible legal ma ...
- a binding opinion assigning rights, duties, and obligations ''within a specific case or controversy''.


References

{{DEFAULTSORT:Advisory Opinion International Court of Justice Civil procedure