Naimul Muquim
The term “amicus curiae” or “amici curiae” is a phrase in Latin that plainly means “friend(s) of the court.” This is someone who is not a party to a lawsuit or someone solicited by any parties to a concerned case; rather this is someone who furnishes information or advice relating to questions of law or who may opine on questions of fact in a specific dispute in order to assist the court. Such information may be that of a legal opinion or an amicus brief. Naturally, admitting their submission lies with the respective court’s discretion. Amici curiae usually do not participate in such proceedings, except when circumstances arise as per the leave or appointment of the court, and this process is similarly followed in the legal system of Bangladesh. The amici therefore appear at court mostly when issues arise that are concerned with significant matters of national importance.
Historically, the amici curiae’s participation in litigation goes back centuries and its establishment extends beyond the 14th century and even Roman law. Their involvement in the matters of the court was also known throughout the time of medieval England. Under Roman law, these persons were prudently chosen as counsels and therefore served as legal guides, which in turn supported the court in the disposition of cases in areas outside the proficiency and expertise of the court. The amici had mainly done this by offering nonbinding opinions on points of law with which the court was unfamiliar with. Traditionally, the amici curiae were also equally not a party to the litigation. Therefore, they served as an impartial assistant to the judiciary by providing advice to an unsure court that took their views within the realm of judicial discretion.
Throughout its history, the amicus curiae concept was implemented as a flexible judicial instrument to tackle the inadequacies and limitations of the adversarial litigation system. More so, the notion of consulting with the amici curiae still holds its traits of adaptability even today. As the practice had sustained, this later materialised in England’s concept of common law. In this case, an amicus curiae was an unbiased and impartial person who, at the court’s request or approval, informed the court on different points of law. As a result, common law courts welcomed such assistance and saw it necessary to empower the amici to participate further under a theory that they, by helping the courts to circumvent error, served to preserve the judicial honour and integrity of the courts.
More significantly, the characteristic of amicus curiae is beyond that of an expert, who is generally only required to offer her or his view on a reasonably limited point; this may for instance pertain to a handwriting expert or a person who authenticates a medical report. In this manner, an amicus may help the court by delivering novel views on a particular and substantial matter of law. Due to their considerable professional preparation, study, and scholarship, the amicus curiae concept was subsequently extended to many common law systems in the world including Bangladesh. In addition, it has also been further introduced in international law and incorporated in civil law systems. In the present, international courts like the European Court of Human Rights have also realised the same. Moreover, in India, the preponderance of the amici curiae selected by the courts in the past comprised reputed senior advocates. Nonetheless, recent times have portrayed that even law academicians may also be appointed as amicus curiae.
There is no specific legislation that has introduced the concept of amicus curiae into the Bangladesh legal system, nor is there a law that states their functions or duties which they usually offer to the court. As our country follows the common law system, the customary practice of amicus curiae in the courts has come into being naturally since the inception of Bangladesh. Thus, the Supreme Court of Bangladesh primarily appoints them when it finds that it needs their assistance and realises that it would be better to take the wisdom of those senior learned counsels who are not involved in the litigation themselves. The court may therefore be enlightened on crucial matters that are yet to be decided. Accordingly, it is indeed an honour for such amici curiae to be requested and appointed by the court to share their knowledge and legal acumen in matters that carry great weight and significance for our national legal system.
In comparison, foreign jurisdictions as opposed to our own suggest that a form of the conventional role of an amicus, that is upholding the courts’ honour by preventing it from making mistakes, was fused with the aim of representing third-party interests in the adversarial system. The case of Coxe v Phillips (1736) in fact empowered the amici curiae to serve two things; this included the court and the amicus’ individual interests. As a consequence, the aptitude of an amicus curiae to act in an interested manner demonstrated to be meaningful, which later led to courts and parties to permit them to undertake the role of being informal advocates for persons who were not formally under the jurisdiction of courts.
Lastly, there are many distinguished amici curiae that had served and continue to assist the Supreme Court of Bangladesh over the years. For instance, to name a few of such persons in their illustrious careers in the legal profession include Syed Ishtiaq Ahmed, Khondker Mahbubuddin Ahmed, Shafique Ahmed, Ajmalul Hossain, QC, Asrarul Hossain, Dr Kamal Hossain, Rafiqul Haque, M Amir-ul Islam, Mahmudul Islam, TH Khan, M Nurullah and Mr SR Pal and so on.
The writer is an alumnus of Brac University, School of law.
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http://www.dhakatribune.com/juris/2015/jan/29/significance-amicus-curiae-legal-systems#sthash.uaQ2XqMP.dpuf
