- Advisory opinion
An advisory opinion is an opinion issued by a
courtthat does not have the effect of resolving 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 judiciaryand obtain an advisory opinion. In other countries or specific jurisdictions, courts may be prohibited from issuing advisory opinions.
International Court of Justice
International Court of Justiceis 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 essentially non-binding, but Pieter H.F. Bekkerhas 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. [ [http://www.asil.org/insights/insigh121.htm "The UN General Assembly Requests a World Court Advisory Opinion On Israel's Separation Barrier"] , Pieter H.F. Bekker, [http://www.asil.org/aboutasil/index.html ASIL] (American Society of International Law) Insights, December 2003.]
Advisory Opinions have often been controversial, either because the questions asked are 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 casesarticle.
Inter-American Court of Human Rights
The advisory function of the
Inter-American Court of Human Rightsenables it to respond to consultations submitted by agencies and member states of the Organization of American Statesregarding the interpretation of the American Convention on Human Rightsor 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 [http://www1.umn.edu/humanrts/iachr/series_A.html Advisory Opinions of the Inter-American Court of Human Rights.]
Supreme Court of Canadawill 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.
United States federal courts
United States Supreme Courthas determined that the case or controversyrequirement found in Article Three of the United States Constitutionprohibits United States federal courtsfrom 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 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 Jayreplied that it would violate the separation of powersfor the Supreme Court to provide such an opinion, noting that the president could rely on advice from anyone within the executive branchunder Article Two of the United States Constitutionwhich expressly permits the President of the United Statesto "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".
Over a century later, in the case of "
Muskrat v. United States", 219 U.S. 346 (1911), 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
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 Islandand South Dakota. Two states provide for supreme court advisory opinions by statute: Alabamaand 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.
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 Supreme Courthas two specific constitutional grants of authority to issue advisory opinions. First, it can issue an advisory opinion to the Governor of Floridaon constitutional questions affecting the powers of the state's executive branch. Second, it can issue an advisory opinion to the Attorney Generalabout 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.
Declaratory judgment- a binding opinion assigning rights, duties, and obligations "within a specific case or controversy".
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