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An advisory opinion of a
court A court is an institution, often a government entity, with the authority to adjudicate legal disputes between Party (law), parties and Administration of justice, administer justice in Civil law (common law), civil, Criminal law, criminal, an ...
or other government authority, such as an
election commission An election commission is a body charged with overseeing the implementation of electioneering process of any country. The formal names of election commissions vary from jurisdiction to jurisdiction, and may be styled an electoral commission, a c ...
, is a decision or opinion of the body but which is non-binding in law and does not have the effect of adjudicating a specific
legal case Legal proceeding is an activity that seeks to invoke the power of a tribunal in order to enforce a law. Although the term may be defined more broadly or more narrowly as circumstances require, it has been noted that " e term ''legal proceedings'' ...
, but which merely legally advises on its opinion as to the constitutionality or interpretation of a law. The
International Law Association The International Law Association (ILA) is a non-profit organisation based in Great Britain that — according to its constitution — promotes "the study, clarification and development of international law" and "the furtherance of international ...
is one such commission that provides non binding opinions and advisory documents regarding aspects of international law. Some countries have procedures by which the executive or
legislative branch A legislature (, ) is a deliberative assembly with the authority, legal authority to make laws for a Polity, political entity such as a Sovereign state, country, nation or city on behalf of the people therein. They are often contrasted with th ...
es may refer 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 ...
for 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; , CIJ), or colloquially the World Court, is the only international court that Adjudication, adjudicates general disputes between nations, and gives advisory opinions on International law, internation ...
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 is the foundational treaty of the United Nations (UN). It establishes the purposes, governing structure, and overall framework of the United Nations System, UN system, including its United Nations System#Six ...
) when requested to do so by certain organs or agencies of the
United Nations The United Nations (UN) is the Earth, global intergovernmental organization established by the signing of the Charter of the United Nations, UN Charter on 26 June 1945 with the stated purpose of maintaining international peace and internationa ...
. 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 The Organization of American States (OAS or OEA; ; ; ) is an international organization founded on 30 April 1948 to promote cooperation among its member states within the Americas. Headquartered in Washington, D.C., United States, the OAS is ...
regarding the interpretation of the American Convention on Human Rights or other instruments governing human rights in the
Americas The Americas, sometimes collectively called America, are a landmass comprising the totality of North America and South America.''Webster's New World College Dictionary'', 2010 by Wiley Publishing, Inc., Cleveland, Ohio. When viewed as a sing ...
. 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 The High Court of Australia is the apex court of the Australian legal system. It exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation. The High Court was establi ...
is prohibited by the
Constitution of Australia The Constitution of Australia (also known as the Commonwealth Constitution) is the fundamental law that governs the political structure of Australia. It is a written constitution, which establishes the country as a Federation of Australia, ...
from issuing advisory opinions; a binding determination requires a controversy between two or more parties. There have been occasions 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 of Australia, prime minister, Gough Whitlam of the Australian Labor Party (ALP), ...
, when politicians have 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 law of Canada, Canadian law, a reference question or reference case (formally called abstract review) is a submission by the Canadian government, federal or a Provinces and territories of Canada, provincial government to the courts asking for a ...
mechanism is equivalent to an advisory opinion. The ''
Supreme Court Act The ''Supreme Court 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 Court was ...
'' gives the federal Cabinet the power to refer questions to the
Supreme Court of Canada The Supreme Court of Canada (SCC; , ) is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants eac ...
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, is a country in South Asia. It is the List of countries and dependencies by area, seventh-largest country by area; the List of countries by population (United Nations), most populous country since ...
, the
President of India The president of India (ISO 15919, ISO: ) 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, and the commander-in-chief, supreme commander of the Indian Armed ...
can request the
Supreme Court of India The Supreme Court of India is the supreme judiciary of India, judicial authority and the supreme court, highest court of the Republic of India. It is the final Appellate court, court of appeal for all civil and criminal cases in India. It also ...
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 an analysis of this provision, see noted Indian lawyer Deepaloke Chatterjee's widely cited article on this point


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 acknow ...
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: Arts and entertainment Film and television *'' Præsident ...
or a Minister may, in accordance with the approval of the Cabinet, refer to the
Supreme Court In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...
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 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 turn on question ...
has determined that the case or controversy 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 Con ...
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 Constitution of the United States, United States Constitution and Law of the United States, laws of the fed ...
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 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 par ...
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: Arts and entertainment Film and television *'' Præsident ...
George Washington George Washington (, 1799) was a Founding Fathers of the United States, Founding Father and the first president of the United States, serving from 1789 to 1797. As commander of the Continental Army, Washington led Patriot (American Revoluti ...
, replying to the president's request for such an opinion, then-Chief Justice
John Jay John Jay (, 1745 – May 17, 1829) was an American statesman, diplomat, signatory of the Treaty of Paris (1783), Treaty of Paris, and a Founding Father of the United States. He served from 1789 to 1795 as the first chief justice of the United ...
replied that it would violate the
separation of powers The separation of powers principle functionally differentiates several types of state (polity), state power (usually Legislature#Legislation, law-making, adjudication, and Executive (government)#Function, execution) and requires these operat ...
for the Supreme Court to provide such an opinion, noting that the president could rely on advice from anyone within the
executive branch The executive branch is the part of government which executes or enforces the law. Function The scope of executive power varies greatly depending on the political context in which it emerges, and it can change over time in a given country. In ...
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 Un ...
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. The president directs the Federal government of the United States#Executive branch, executive branch of the Federal government of t ...
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 In most common law jurisdictions, the attorney general (: attorneys general) or attorney-general (AG or Atty.-Gen) is the main legal advisor to the government. In some jurisdictions, attorneys general also have executive responsibility for law enf ...
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 State most commonly refers to: * State (polity), a centralized political organization that regulates law and society within a territory **Sovereign state, a sovereign polity in international law, commonly referred to as a country **Nation state, a ...
, like
Rhode Island Rhode Island ( ) is a state in the New England region of the Northeastern United States. It borders Connecticut to its west; Massachusetts to its north and east; and the Atlantic Ocean to its south via Rhode Island Sound and Block Is ...
, permit the governor to certify questions on the constitutionality of laws to the
state State most commonly refers to: * State (polity), a centralized political organization that regulates law and society within a territory **Sovereign state, a sovereign polity in international law, commonly referred to as a country **Nation state, a ...
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 whi ...
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 Bankruptcy is a legal process through which people or other entities who cannot repay debts to creditors may seek relief from some or all of their debts. In most jurisdictions, bankruptcy is imposed by a court order, often initiated by the deb ...
), 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