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A Doubtful and Perilous ExperimentAdvisory Opinions, State Constitutions, and Judicial Supremacy$

Mel A. Topf

Print publication date: 2011

Print ISBN-13: 9780199756766

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199756766.001.0001

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(p.191) Appendix B A Note on Advisory Opinions Outside the United States

(p.191) Appendix B A Note on Advisory Opinions Outside the United States

A Doubtful and Perilous Experiment
Oxford University Press

Many foreign jurisdictions permit advisory opinions, and many others prohibit them. There is no consistent pattern. Among common law nations, for example, Canada permits them and Australia does not. Given the manifold and complex differences among the many foreign jurisdictions with advisory opinions, it necessarily remains beyond the scope of this book to attempt a comparative study. In Canada, to take that as a brief example, the Supreme Court has “reference” jurisdiction, under which the federal government (the executive) may refer questions to the Court for advice. The reference authority is statutory, originally provided for in the Constitution Act of 1867, Section 101, enacted the year the Dominion of Canada was created, but now incorporated in the Supreme Court Act, section 53. References may be made to the Court on the constitutionality of federal or provincial legislation, and on the powers of Parliament or of the provincial legislatures or executives. The provincial legislatures may similarly enact laws permitting references to their respective Courts of Appeal, and all have done so.1

The references of the Canadian Supreme Court are binding judgments of the Court. The Court has interpreted its advisory duty narrowly. The constitutionality of the duty has still been debated but never successfully challenged.2 References are relatively infrequent, averaging one every few years. The Court is obliged to answer any properly (p.192) presented reference in an opinion giving “the reasons for each answer, and the opinion shall be pronounced in like manner as in the case of a judgment on an appeal to the Court, and any judges who differ from the opinion of the majority shall in like manner certify their opinion and their reasons.”3 Briefs and oral argument are routine, though at the Court’s discretion. In exceptional circumstances the Court may hear witnesses.

A prominent example of a reference concerned whether Quebec Province had the constitutional right, on the basis of its own referendum, to secede unilaterally from Canada. Quebec’s Governor in Council (the provincial government) referred to the Supreme Court several related questions in 1996. The Court advised that Quebec may not secede solely on its own determination. In Canada’s federal system, the Court said, secession of a province requires that the province engage in negotiations with the other provinces, whose rights and obligations must be taken into account. On the other hand, the other provinces of the Canadian federation may not “deny the right of the government of Quebec to pursue secession should a clear majority of the people of Quebec choose that goal,” presuming the interests of the other provinces were adequately addressed.4

An amicus curiae in this reference proceeding challenged the constitutionality of the Supreme Court’s authority to give advice, but the Court held that a court of appeal may “properly undertake other legal functions, such as the rendering of advisory opinions. There is no constitutional bar to this Court’s receipt of jurisdiction to undertake an advisory role.”5

The major international courts, playing an increasingly prominent role in international affairs, have always had “an extensive advisory competence.”6 Jaconelli suggests two reasons for the pervasiveness of advisory opinions in international courts. First, litigation is less frequent than in municipal law, “and the opportunities for thereby clarifying the law are correspondingly reduced.” Second, the parties in international courts are states, so that the “difficulties of enforcing coercive decrees against such subjects” give advisory opinions “a peculiar importance.”7


(1) Discussion of the Canadian reference system is based on the Supreme Court Act, R.S.C. 1985, c. S-26, sec. 53; and on Department of Justice [of Canada], BACKGROUNDER ON REFERENCES TO THE SUPREME COURT OF CANADA (2003). (Retrieved from the website of the Canadian Department of Justice, June 1, 2004). On Canadian advisory opinions, see generally James L. Huffman & Mardi Lyn Saathoff, Advisory Opinions and Canadian Constitutional Development: The Supreme Court’s Reference Jurisdiction, 14 MINN. L. REV. 1251 (1990). For a comparative, if dated, review of Canadian and American advisory opinions, see J. F. Davidson, The Constitutionality and Utility of Advisory Opinions, 2 U. TORONTO L.J. 254 (1937).

(2) See Huffman & Saathoff, Advisory Opinions, 1257, 1261–64.

(3) Supreme Court Act, sec. 53 (4).

(4) In the Matter of Section 53 of the Supreme Court Act, R.S.C., 1985, c. S-26; And in The Matter of a Reference by the Governor in Council Concerning Certain Questions Relating to the Secession of Quebec from Canada, as Set Out in Order in Council P.C. 1996-1497, dated the 30th day of September, 1996 [1998] 2 S.C.R. 217. (Retrieved from the website of the Supreme Court of Canada, Aug. 16, 2010.)

(5) Id.

(6) Joseph Jaconelli, Hypothetical Disputes, Moot Points of Law, and Advisory Opinions, 10 LAW Q. REV. 587, 603 (1985) (including citations to charters and treaties referring to advisory opinion jurisdiction of international courts). Article 47 of the European Convention on Human Rights gives the European Court of Human Rights an advisory opinion jurisdiction. The United Nation’s highest court, the International Court of Justice, has the jurisdiction as well. In 2010, for example, the court advised that Kosovo’s unilateral declaration of independence from Serbia did not violate international law. See Dan Bilefsky, Kosovo’s Declaration of Independence Is Within Law, U.N. Rules, NEW YORK TIMES, July 22, 2010. (Retrieved from the website of the NEW YORK TIMES, Aug. 16, 2010.)

(7) Jaconelli, Hypothetical Disputes, 603.