In its simplest definition, an advisory opinion is a technical view sought by the decision-maker, most often concerning how one or more legal provisions should be applied. In practice, an advisory opinion is provided in relation to an act that has not yet been finalized and constitutes a substantive contribution to the contemplated decision—one that may, by virtue of that contribution, acquire historical significance. The decision and its author may thereafter become recorded as part of the authority, power, and force of the administration, whether positively or negatively, in its institutional history.
It has been said of the legal adviser or jurist that he is the interpreter of the legislator—that is, he explains and articulates the legislator’s intent by applying it to real-life situations. A legal opinion is thus a clarification of the correct meaning of legislative provisions and is more directly connected to, and engaged with, the realities of rights and legal positions. The adviser is the sincere, trustworthy counselor who assists the administration, opens paths before it, and facilitates the proper course of action.
Given this significance and influence, it is preferable that advisory opinions and legal rulings be clear, well-defined in scope and effect, written, and properly documented. Moreover, any person asked to contribute an opinion—or whose advice is sought in any field, particularly legal advice that may affect broad segments of society—is obliged, by the very nature of the task, to recognize that his opinion reaches the decision-maker before the decision is taken and becomes a foundation and essential element of that decision-making process.
Accordingly, the adviser must take into account the capacities, capabilities, authority, and influence of the state, and must realistically assess the practical importance of his opinion in terms of its impact on the community and its repercussions for society, individuals, and the administration. One eye should remain attentive to the weaker party who may be affected by the administrative act—an important consideration by its very nature. Yet more important is that the other eye remain firmly focused on the source of the decision that sought the advice, in order to steer it away from errors, consequences, and pitfalls that may arise, and to ensure that it is not exposed, under any circumstances, to criticism or reproach that could compel it to take corrective or remedial measures that weaken the decision itself.
For this reason, the adviser must divest himself of personal inclination and influence, and cloak himself in integrity, acting as though he were adjudicating a dispute—particularly in cases where the decision issued on the basis of his opinion is not subject to review or oversight by any competent authority, and is insulated from challenge, even where disputes arise concerning the application of the administrative act founded, in whole or in part, on that advisory opinion—especially when such acts affect the rights or freedoms of individuals.
Disclaimer
This article was originally written in Arabic.
The English translation provided above is intended for informational and professional purposes only. Due to linguistic and structural differences between Arabic and English, certain legal expressions, nuances, or contextual meanings may not be fully conveyed or may be interpreted differently. In the event of any inconsistency or ambiguity, the original Arabic text shall prevail.