Advisory Jurisdiction

The Secession Reference, [1998] 2 SCR 217, answered that Quebec could not secede unilaterally under either the Constitution or international law, but that a clear majority on a clear question would give rise to a constitutional duty on the other participants in Confederation to negotiate.

Neither answer could have been given in a lis, because there was no dispute in which the questions could have arisen.

Ireland: the reference that binds

Article 26 lets the President, after consultation with the Council of State, refer a Bill, other than a Money Bill, a constitutional amendment Bill or a Bill whose Seanad time has been abridged, to the Supreme Court for a decision on whether it is repugnant to the Constitution. The reference must be made within seven days of presentation, the President may not sign pending the decision, and the Court, sitting with not less than five judges, must pronounce within sixty days.

Two features are unique on this syllabus.

One judgment only. Article 26.2.2° provides that the decision of the majority shall be pronounced by one judge, and that no other opinion, whether assenting or dissenting, shall be pronounced nor its existence disclosed.

Immunity thereafter. Article 34.3.3° provides that no court whatever shall have jurisdiction to question the validity of a law the Bill for which was referred under Article 26, or of a provision whose corresponding provision in the Bill was so referred. A Bill that survives the reference is beyond challenge for ever.

So the Irish reference is not advice at all. It is a binding decision taken before enactment, and it is the reason the power is used sparingly: a President who refers a Bill may immunise it.

The United States: no advice

Muskrat v. United States, 219 U.S. 346 (1911), is the authority. Congress had authorised named Cherokee citizens to sue the United States in the Court of Claims, with an appeal to the Supreme Court, for the sole purpose of testing the validity of earlier Acts, the costs to be paid out of Cherokee funds.

The Court held that this was no case or controversy. The judicial power extends to cases and controversies, which imply present or possible adverse parties whose contentions are submitted for adjudication; a proceeding whose only object is to test legislation, with the United States joined to supply the form of a suit, is not one. To entertain it would require the Court to give opinions in the nature of advice concerning legislative action, a function never conferred upon it by the Constitution and against the exercise of which the Court has set its face from the beginning.

The practice is older than the case. The Court declined President Washington's request for legal advice in 1793, and the refusal has held since.

Comparison

Switzerland belongs with the United States on this row: the Federal Supreme Court decides cases and appeals, and abstract constitutional questions reach the political organs, not the court.

Why an advisory power is contentious

For. It settles a question before harm is done, which the Irish pre-enactment reference does directly. It resolves questions that cannot arise in litigation, of which the Secession Reference is the demonstration. It saves the cost of a wrong answer being acted on for years.

Against. A court answering in the abstract has no facts, and constitutional doctrine made without facts is brittle. There are no genuinely adverse parties, so the argument is weaker. And a government may use the reference to shift a political decision onto the court, or to seek reconsideration of a decision it dislikes without a fresh case.

The Indian Court has met the last objection by declining. In In re Special Reference No. 1 of 1998, (1998) 7 SCC 739, it treated a reference on judicial appointments as an occasion to explain and not to revisit the Second Judges case, and it declined to answer where the answer would have required it to reconsider a settled decision.

A worked example

A government wishes to know whether a Bill creating a new tribunal and excluding the writ jurisdiction would be valid.

India. A reference under article 143(1) is competent; the Court may answer or decline, and the answer would follow L. Chandra Kumar.

Canada. A reference under section 53 would be answered as a matter of course.

Ireland. The President could refer the Bill under Article 26; if it survived, article 34.3.3° would place it beyond challenge for ever.

United States. There is no route at all until somebody is injured and sues.

The cases

Facts. Muskrat v. United States, 219 U.S. 346 (1911), concerned an Act of 1907 authorising named Cherokee citizens to sue the United States for the sole purpose of determining the validity of earlier Acts affecting Cherokee lands.

Held, by Day J for the Court. There was no justiciable controversy. The judicial power is limited to cases and controversies implying present or possible adverse parties, and to entertain a suit brought only to test legislation would require opinions in the nature of advice concerning legislative action, which the Constitution never conferred. The jurisdictional provision exceeded the limits of legislative authority and the petitions were dismissed for want of jurisdiction.

Why it matters here. It is the American refusal of advisory jurisdiction, and it shows that the refusal is constitutional and not a matter of practice, so Congress cannot confer the power.

Facts. In re Berubari Union, AIR 1960 SC 845, was a reference under article 143(1) asking whether the implementation of the Indo-Pakistan agreement on Berubari Union and the exchange of enclaves required legislative action, and if so of what kind.

Held, by the Supreme Court. Cession of Indian territory to a foreign State cannot be effected by executive action or under article 3, and requires an amendment of the Constitution under article 368.

Why it matters here. It is the standard illustration of article 143 answering a question that could not have come up in ordinary litigation, and the answer was acted on by the Ninth Amendment.

Facts. Reference re Secession of Quebec, [1998] 2 SCR 217, was a reference by the Governor in Council asking whether Quebec could effect secession unilaterally under the Constitution of Canada or under international law.

Held, by the Supreme Court of Canada. It could not. The Constitution rests on four fundamental organising principles, federalism, democracy, constitutionalism and the rule of law, and respect for minorities, and while a clear majority on a clear question would confer democratic legitimacy on a secession initiative and give rise to a reciprocal constitutional duty on all parties to negotiate, no right of unilateral secession exists in Canadian or international law.

Why it matters here. It is the strongest argument for an advisory jurisdiction: the question was of the first constitutional importance and could not have reached a court in any other way.

Distinctions

What beginners get wrong

"Article 143 makes the Court's opinion binding." It is a report of opinion; it is not a judgment and it does not operate as res judicata. It is followed because of the Court's authority, not because article 143 says so.

"The Court must answer every reference." Only under clause (2). Under clause (1) it may decline, and it has.

"Ireland's Article 26 is the same thing." It is a decision, delivered as one judgment with dissents forbidden, and article 34.3.3° puts the resulting Act beyond challenge for ever.

"The Americans simply never developed the practice." They refused it, and Muskrat holds the refusal is constitutional.

Limits and criticism

No facts. An opinion given on assumed facts may not fit the case that later arises.

No adversaries. The court hears argument arranged for it rather than pressed by a party with something to lose.

Political offloading. A reference can be a way of not deciding, and the Indian Court has resisted being used to reopen settled questions.

In Ireland, the immunity is severe: a Bill approved on a rushed abstract reference can never be tested against the facts of a real case.

Quick revision

1. Article 143(1): a question of law or fact of public importance; the Court may report its opinion; it may also decline.
2. Article 143(2): a dispute under the proviso to article 131; the Court shall report.
3. An article 143 opinion is not res judicata; it is followed for the Court's authority.
4. Canada: section 53 of the Supreme Court Act; the Patriation and Secession References.
5. Ireland: Article 26, seven days, five judges, sixty days, one judgment, no dissents.
6. Article 34.3.3°: an Act whose Bill survived an Article 26 reference can never be questioned.
7. United States: Muskrat v. United States, 219 U.S. 346 (1911); no case or controversy, no advice.

Test yourself

1. Set out article 143 and its two clauses. Clause (1) allows the President, where it appears to him that a question of law or fact has arisen or is likely to arise which is of such a nature and such public importance that it is expedient to obtain the Court's opinion, to refer it; the Court may, after such hearing as it thinks fit, report its opinion. Clause (2) covers a dispute of the kind in the proviso to article 131, arising out of a pre-Constitution treaty, agreement, covenant, engagement, sanad or similar instrument, and there the Court shall report. The difference between "may" and "shall" is the power to decline.

2. Why is the Irish Article 26 reference not advisory in substance? Because the Court decides rather than advises, and the decision has consequences the Indian opinion does not. The President may not sign pending the decision; if the Court finds repugnancy the President must decline to sign; the decision is pronounced by one judge with no assenting or dissenting opinion permitted or even disclosed; and article 34.3.3° provides that no court whatever may afterwards question the validity of the resulting law or of a provision whose corresponding provision was referred.

3. State the American position and its authority. That there is no advisory jurisdiction, because Article III section 2 extends the judicial power only to cases and controversies. Muskrat v. United States, 219 U.S. 346 (1911), held that a suit authorised by Congress solely to test the validity of earlier legislation, with the United States joined to supply the form of a suit, was not such a case; to entertain it would require opinions in the nature of advice concerning legislative action, a function never conferred by the Constitution, and the jurisdictional provision therefore exceeded legislative authority.

4. Give the best argument for an advisory jurisdiction, with an example. That some constitutional questions of the first importance cannot reach a court through litigation at all, and a system without a reference power simply leaves them unanswered. Reference re Secession of Quebec, [1998] 2 SCR 217, is the example: no lis could have raised whether a province may secede unilaterally, and the Supreme Court of Canada was able to hold that it may not, while identifying a reciprocal duty to negotiate following a clear majority on a clear question, which shaped the politics of the issue thereafter.