On 1 July 2012, the preliminary reference procedure was introduced at the Supreme Court of the Netherlands. When lower civil courts face controversial points of law, they may refer a question of interpretation to the Supreme Court and request a preliminary ruling. This way, the Supreme Court should be able to provide legal practice with a faster and more specific response to pressing legal questions than through the ‘ordinary’ procedure.
This preliminary reference procedure is not a modern invention. It was already known in Rome, existed in a specific form in France (référé législatif, where a question of interpretation was referred to the legislator), was used at the Italian Corte Costitutionale and has been a powerful tool for the development of EU law by the European Court of Justice in Luxembourg (see the attached blog and article). Furthermore, Protocol 16 to the ECHR will allow highest courts of states that have ratified this Protocol to refer a question of principle to the European Court of Human Rights for an advisory opinion.
I wanted to use ResearchGate for a small comparative exercise. Perhaps you would like to answer the following questions. May lower courts in your country refer a question of interpretation to the highest court(s) in your country? Did such an instrument once exist, or is the introduction of such an instrument currently under consideration in your country?
I am also interested in literature on this subject and in other relevant international examples.
Your help is greatly appreciated,
Ruben
http://leidenlawblog.nl/articles/law-making-by-way-of-preliminary-reference
Article Rome, Luxemburg, Den Haag: de prejudiciële procedure als rec...
Yes. The 'legal question' in Polish law (direct interpretation) is a kind of question directed by a court of appeal to the Supreme Court in a case of doubt as to the fundamental interpretation of statutes or directed by any court to the Constitutional Court to examine the conformity of a normative act with the Constitution, ratified international agreements or a statute.
Best regards,
Mariusz
Thanks for your response, Mariusz! What kind of procedure do you have in Australia, Arthur?
Dear Del,
In Poland we have a different model. What you do then is a kind of co-administration, isn't it? In that case I can understand your feelings :-)
Best regards,
Mariusz
When I first saw your question, I thought staying the order of the inferior court was what you had in mind.
Now that I see what you are getting at, I've got one that you may find interesting. The U.S. Supreme Court may pause considering a case and certify a question of law to a state court of last resort. This is because the SCOTUS is not the final authority on either state laws or tribal laws, except state laws can be found unconstitutional. (Tribal laws not, because the Constitution does not apply to tribal laws. The Constitution is a social compact to which we were not parties.)
Steve
The Unites States Federal courts, including the Supreme Court are limited by the Constitution to deciding only actual "cases and controversies", and as a result do not issue advisory opinions, or opinions on matters that are not ripe for adjudication. Most states follow this proscription, although I believe that Massachusetts' Supreme Judicial Court can issue advice to the State Assembly on matters concerning legislation.
As my old friend Professor Russell said above, superior appellate courts may stay their process while remanding to the lower court for clarification of a factual or legal matter, but that is in the nature of resolving the final question from that lower court to facilitate the appeal. Federal Courts (US) frequently ask questions of the highest courts of state or tribal jurisdictions concerning matters of local law that impact federal litigation, since some cases arise under Federal jurisdiction (such as diversity of state citizenship between the parties to the suit), but are controlled substantive by state law owing to the location of the transaction in question.
Thank you Del, Steve and Roderick!
Slavka, what then are the strict limitations under Bulgarian law?
And Luis, how does it work out in Spain?
The "cases and controversies" clause of our Constitution, and the judicial rule that a case before the Supreme Court be ripe for final decision preclude preliminary opinions.
Republic of Moldova
As part of a reform enacted on 1 December 2012, the Supreme Court of Justice has the power to issue:
* consultative opinions to questions on points of law coming from lower standing courts; (they can be consulted here: http://jurisprudenta.csj.md/db_avize_csj.php )
* recommendations on specific points of law (without being requested by any entity) (they can be consulted here: http://jurisprudenta.csj.md/db_rec_csj.php ).
Additionally, as is traditional in post-Soviet countries, the Supreme Court can issue "Explanatory Decision" which are 10-20 pages instructions on an entire legal institution (such as insurance contract; administative proceedings etc.). Because they are very broad in nature, they are actually not that useful to practitioners.
Frist, in order to understand the legal system in the United States it is important to realize that the United States is a federation of governments with some power given to the federal goverment, located in Washington DC, and many powers residing in the member governments, that is the states, territories, and other affiliated governments in the "United "Federation" of States" as I like to call it.
As stated in a prior posting, the federal court system, designed primarily to enforce and interpret federal law, but not state law, is limited by the "cases and controversies" requirment of the US Constitution.
I have not looked at the constitution of each of the member governments in the United "Federation" of States but some do allow something at least similiar to what you suggest. However, many of the affiliated governments have a position called "Attorney General" and this office may issue advisory opinions on some matters. These are not law however but as quoted from the website of the California Attorney General, "The formal legal opinions of the Attorney General have been accorded "great respect" and "great weight" by the courts." See: https://oag.ca.gov/opinions
In Italy, our Supreme Court (Corte di Cassazione) cannot give any preliminary ruling.
I cannot agree with you about Italian Corte Costituzionale. Such a Court cannot really give any preliminary ruling about conformity between law and Constitution; Corte Costituzionale can rule only: 1) if a judge asks the Court (incidental judgment), 2) if there is a dispute between powers (eg: between State and Region or between Senate and judges and so on). Italian Corte Costituzionale has not the power to say preliminarly if a law is consistent wth Italian Constitution.
The reason why I referred to the Corte Costituzionale is that several sources suggest that the preliminary reference procedure before the European Court of Justice was directly inspired by the procedure before the Corte Costituzionale. See for example Boerger-De Smedt, 'Negotiating the Foundations of European Law, 1950-1957: The Legal History of the Treaties of Paris and Rome’, Contemporary European History 2012, p. 349:
'The best possible alternative was the preliminary ruling mechanism. The national courts would apply Community law and, when confronted with a question of interpretation, would refer to the European judges. Directly inspired by the Italian constitutional system, this mechanism was first proposed and put on paper by Catalano.'
Nicola Catalano was part of the Italian delegation during the negotiations about the EEC Treaty. He would later become a judge at the ECJ. Lord Mackenzie Stuart referred to Catalano's work during a speech in 1984:
'Thus it is Mr Catalano to whom we owe the idea for one of the most spectacular innovations of the Treaties of Rome by comparison with the Treaty of Paris, namely the reference for a preliminary ruling by way of interpretation. For the ECSC Treaty only provided for references for preliminary rulings on "validity", recourse to which involved much more delicate considerations. Fortified by the experience of the Constitutional Court of Italy, Mr Catalano made the suggestion that such references should be extended to questions of interpretation. Was he able to foresee at that time the exceptional judicial evolution which would be made possible on that basis? At all events we can only recognize that, without that procedure, the greatest judgments of our Court would never have seen the light of day.'
The Italian procedure before the Corte Costituzionale seems to have served as a source of inspiration. This does, of course, not mean that the two procedures are comparable. Given your response that the Corte Costituzionale may indeed be asked by a lower court to rule on a constitutional matter, I wonder: is that ruling final or is the matter ultimately resolved by the lower court, which applies the rule given by the Corte Costituzionale? Or perhaps there have been some changes in this procedure between the 50ies and today?
http://journals.cambridge.org/action/displayFulltext?type=1&fid=8608379&jid=CEH&volumeId=21&issueId=03&aid=8608377&bodyId=&membershipNumber=&societyETOCSession=
http://aei.pitt.edu/4778/1/4778.pdf
Goeie dag Ruben! hi there - I am still studying for my LLB, so my answer regarding South African law will be very plain :) Our Constitution is the highest law in South Africa and judgements by the ConCourt judges override all others and are binding on every other court. All law must conform to the Constitution and may be tested against it in the ConCourt. Cases may proceed to the ConCourt from lower courts, and individuals may in exceptional circumstances appeal directly to the ConCourt for relief but again via cases. The ConCourt only deals with constitutional matters ie it does not hear the cases all over again but makes a finding on the constitutionality of the appeals. It has the power to accept or refuse an apeal.
From my lowly point of view, I do not think that this method of accessing the constitutionality of a matter will change. And for what it is worth, Del Atwood in Canada, I agree: the three branches of government should be kept well separate!
Regards
Louise
Dear Ruben, in Italy, Constitutional Court decides if a provision of law is consistent with Constitution or not. If a certain law breaches Constitution, it shall be considered as null and this binds courts. If, in Constitutional Court's perspective, a certain law does not breach Constitution, lower judges are free to choose their interpretation to solve the issue at stake.
Hi Ruben,
Below is the Nigerian position.
The Constitution of the Federal Reupblic of Nigeria (CFRN), 1999 is determinative on this question. It first provides for a hierachy for her superior courts. Normally, matters may be commenced at the State or Federal High Courts (as well as other specialised courts with concurrent jurisdiction), depending on the one with jurisdiction in such matters. Such matters work their way up to the Nigerian Supreme Court in deserving cases. The Court of Appeal which is the penultimate to the Supreme Court in terms of heirachy also exercises original jurisdiction in limited matters which are provided for in section 239(1) CFRN. These matters are with the question of whether:
(a) any person has been validity elected to the office of President or Vice-President under this Constitution; or
(b) the term of office of the President or Vice-President has ceased; or
(c) the office of President or Vice-President has become vacant.
In the same vein, the Constitution creates a hierachy for the purpose of reference of questions, such that reference can only be made to a court above the referring court (section 295 CFRN). iN section 295(3) CFRN, the Court of Appeal may refer questions to the Supreme Court where such questions involve a substantial question of law. This reference may be done by the court on its own but is mandated to do so at the request of any of the parties. Indeed, the procedure was used in 2007 in a constitutional dispute involving the office of the vice president of Nigeria in 2007. (Alhaji Atiku Abubakar v. Attorney General of the Federation http://lawaspire.com.ng/2014/06/1777/). The Supreme Court remitted the matter to the Court of Appeal as it appeared that the latter had more or less transferred the suit to the Supreme Court.
On the basis of the foregoing analysis and in particular reference to your question:
Yes, a lower court may make such reference. However, following the hierarchy of courts, only the Court of Appeal may make such reference to the Supreme Court.
Also, given the fact that the matters over which the Court of Appeal has original jurisdiction are those contained in Section 239(1) above, it follows that such references to the Supreme Court are limited and hence may happen only once in a while.
I do hope this helps.
Thank you for your reactions. Any other thoughts on the subject? Perhaps also from countries where such a possibility does not exist: would you consider the possibility to refer a matter of interpretation to your highest court an improvement?
Dear Ruben,
The Supreme Court in India is the apex court. Down the line, there High Courts in each of the states of the union and then district courts and 'Gram Nyayalaya' courts down to the villages. The Supreme Court is empowered by the Constitution of India to be the 'constitutional court' - meaning the only court in India that can interpret the Constitution or any of the laws passed by the parliament or state legislatures. While examining central and state laws, the Apex Court (as we refer to it) has the power to strike down a provision or even the whole legislation as ultra vires to the constitution and therefore null and void.
A classical example would be the passing of Illegal Migrants Determination Tribunal Act 1983 that was struck down by the Apex Court in 2005 as unconstitutional.
The High Courts, whenever there is a doubt on the interpretation of a particular provision of law refer the case to the Apex Court for clarification and therefore it serves as a Referral Court also. There are hundreds of such cases where the interpretation by Referral Bench of Apex Court has been used to deliver judgment by High Courts.
Where a specific provision may not exist in any Act of Parliament/Legislature, but the Apex Court finds that there is void in law that needs to be filled which is in consonance with the 'spirit' of the Constitution, it has made 'law'. The most stellar example would be its judgment in the Visaka case 1997 where the Apex Court cited India's international obligations under various treaties to which India is party to, and directed the government to enact a law afresh to safeguard women from sexual harassment in their work place.
I do hope this helps. Have a great day.
Ruben
In Bangladesh the Constitution is the highest law of the country. Under Article 106 the President of the Country may refer any matter to the Supreme Court for opinion on legal issues.
Again any subordinate court may refer any critical issue on law and custom to Supreme Court for opinion. Thanks.
Not the highest Civil/commercial/criminal court (court of cassation), but Belgium has a Constitutional Court that receives preliminary questions and gives preliminary rulings on the constitutionality of Acts of Parliament.
The Supreme Court of India is the highest judicial forum and final court of appeal under the Constitution of India, the highest constitutional court, with the power of constitutional review.Appellate jurisdiction is the power of a court to review decisions and change outcomes of decisions of lower courts. Most appellate jurisdiction is legislatively created, and may consist of appeals by leave of the appellate court or by right. Depending on the type of case and the decision below, appellate review primarily consists of: an entirely new hearing (a non trial de novo); a hearing where the appellate court gives deference to factual findings of the lower court; or review of particular legal rulings made by the lower court (an appeal on the record).
In Malaysia (where I work), Article 130 of the Constitution provides: "The Yang di-Pertuan Agong may refer to the Supreme Court for its opinion any question as to the effect of any provision of the Constitution which has arisen or appears to him likely to arise, and the Supreme Court shall pronounce in open court its opinion on any question so referred to it." Now the highest court is called the Federal Court (not Supreme Court). The Yang-di-Pertuan Agong is the country's monarch, who serves as head of state.
In Mexico, there are different things you have to take on count.
1. The subject of matter of the tribunal: if the court is a civil, criminal, family or other type of local court, the procedural (mostly) provisions could be challenge if they are in the violation of human rights, a separate procedure that could end on a Supreme Court Resolution.
2. Federal courts of first instance (juzgados de distrito) since the last reform of the Mexican Constitution (Constitución Politica de los Estados Unidos Mexicanos) in lates 2011, could revise provitions that are against the mexican constitution, this decisioms if they are appealed could comand that a law will not be aplied or to be aplied in accordance to the resolution of the appeal tribunal.
3.The Supreme Court that will only see the most importan human right Violations that law comprises, could command a law not to be applied and within specific circumstances ask the leggislative power to reform that law.
The answer is yes, if you challenge a procedural decision or a resolution from a civil local court (that is in violation of human rights) this could end triggering the Suprems Court jurisdiction.
At the same time the answer will be no, because even when it could end on the Supreme Court, a preliminary hearing will be only to resolve the addmissibility or innadmissibility (for the relevance of the case) to the Supreme Courts jurisdiction something that will comprises a whole new procesure titled Amparo procedure.
For the readers of this topic it may be interesting to know that the preliminary reference procedure has now also been introduced in the field of tax law. In the Netherlands, lower courts may ask questions relating to tax law to the Supreme Court. The introduction of a preliminary reference procedure in criminal law matters is being prepared.
An overview of preliminary questions - both pending and answered - can be found on https://www.hogeraad.nl/prejudiciele-vragen
The Curia of Hungary, as the highest instance judicial forum of the country, has the constitutional duty to harmonise the administration of justice within the Hungarian judiciary, mainly by means of rendering uniformity decisions. The Curia renders uniformity decisions in cases rasing issues of theoretical importance in order to ensure the uniform application of law within the Hungarian judiciary. Such decisions are binding on all Hungarian courts. The operative parts of uniformity decisions – as brief summaries – are accessible hereunder:
https://courts.uslegal.com/state-courts-and-procedures/general-structure-of-state-court-systems/
Yes, it does. The 1992 constitution of the Republic of Ghana and the Courts Act 1993 (Act 459) and as amended clothes the Supreme Court with the jurisdiction to deliver preliminary rulings.
Yes South African Courts are capable of providing preliminary ruling. Reference is made to lot of cases whereby applicant sought relief from the court, especially in applications for court interdicts. In most cases court will grant interim relief to the applicant whilst awaiting for return day.
Not in China. The Article 38 of the civil procedure law stipulates that the people's court at a higher level shall have the power to hear civil cases of the first instance under the jurisdiction of the people's court at a lower level. However,the Supreme People's court served as the court of first instance only once, in 1980.
In general, when complex cases occur, they will be referred to the judicial committee, which is an organization specially set up by each court to sum up judicial experience and discuss difficult cases, and the presiden. is in charge of it.The Supreme People's court will duly issue guiding cases for difficult or signifant cases, which will serve as a reference for similar cases to save judicial costs.However, China is not a case law country and there is no compulsory force in guiding cases, yet most of the judges will comply with them.
Yes, there is such an instrument in the Russian Federation.
Article 101 of the Federal Constitutional Act of November 11, 1994 № 1-ФКЗ "On the Constitutional Court of the Russian Federation" proclaims that every court of the Russian Federation, coming to conclusion on the relevant law not being consistent with the Constitution of the Russian Federation, is obliged to petition the Constitutional Court.
Paragraph 4 Part 3 Article 238 of the Code on Criminal Proceedings of the Russian Federation provides that during this review the initial case is to be put on hold. The same is provided by the Code on Civil Proceedings (Article 215), Code on Administrative Proceedings (Paragraph 5 Part 1 Article 190).
Yes, in my country, lower courts do have the possibility to refer a question of interpretation to the highest court. This process is known as the "certification" or "certiorari" process, depending on the jurisdiction.
In the United States, for example, lower courts can certify questions of law to the Supreme Court, asking the Court to provide guidance or clarification on an issue that is unclear or unsettled. This allows for a more efficient resolution of legal issues and promotes consistency in the application of the law across different jurisdictions.
The certification process has been a part of the American legal system for many years and is not a recent development. However, it is worth noting that the criteria and procedures for certification may vary from state to state.
Overall, the certification process serves as an important tool for promoting judicial efficiency and ensuring that complex legal issues are resolved in a timely and consistent manner.
The country known as the "United States" is a federation of over 200 semi-independent entities (states, tribes, countries, etc.). There is no "highest court" in the traditional sense. The United States Supreme Court is the highest court with regard to FEDERAL law, but not the laws of the other members of the federation.
Therefore, the question is difficult to answer because I would have to know the laws of every member entity. Some constitutions may allow the highest court of the member entity to issue advisory opinions - the Massachusetts Supreme Court for example can issue advisory opinions on matters involving that state's laws.
However, since most people think of the US Supreme Court as the highest court in the United States (and it is in some areas of the law) I will answer the question for that court: No, the US Supreme Court cannot issue advisory opinions.
- Badges
- Science method
- Similar topics
- Biological Science
- Ecology