The plethora of cases in the Bangladesh legal area has reflected notable participation of amicus curiae. Amicus curiae is a person who is solicited by the Court for their submission neutrally in a lawsuit as they have sagacious cognition in the disputed subject matter. The initial function of amicus curiae started during the medieval period in England and it derived from Roman Law. An abundance form of customary law practices that were derived from the common law system, including amicus curiae, in Bangladesh because of the state's historical affiliation with the subcontinent. The participation of amici determines the importance and gravity of the cases that are issued in the Court.
In the judgment of Md. Abdul Mannan Khan Vs. Bangladesh and Others 2008 28 BLD 121, the Court stated, the Supreme Court's learned Senior Advocates, Mr. M.A. Malek, Mr. Mahmudul Islam, Mr. A.F.M. Hasan Arif, and Mr. Md. Munsurul Huq Chowdhury, has been invited to serve as amicus curiae because an intricate question of law concerning public interest has appeared. Addittionaly, in Hazrat Ali and Ors.Vs.The State 4 LNJ (2015) 375, the Court decided to seek the assistance of some senior attorneys as amicus curiae in determining a proper decision after it became apparent public interest was involved. In this regard the senior advocates Mr. Khondoker Mahbub Hossain, Mr. Munsurul Haque Chowdhury as well as advocate Mr. M.A. Mobin had been selected to serve the Court as amicus curiae. In light of the aforementioned cases' judgments, when there is a legal issue involving the public interest amicus curiae supplicated to assist the Court to reach a felicitous decision. Following the judgment of countless cases, when there has been a question in existing laws, sprite of fundamental rights, or the public interest, the amicus curiae has been invited for their observation. The Court welcomed those persons who have unambiguous knowledge and experience about the legal background of Bangladesh or the disputed subject matter. Besides, in Sheikh Hasina Vs. Government of the People's Republic of Bangladesh and Ors. 13 BLC (2008) 121, the Court connotes that it reminded the learned Additional Attorney-General that the learned Advocates appearing as Amici Curiae have at least 25 years of standing practice in the Supreme Court to their credit and that it is a customary practice for a learned Advocate to appear as an Amicus Curiae to provide his or her insight of the legal issues without engaging in the merits of the case in order to assist the Court to reach the proper decision. The core function of amicus curiae is that it will assist the Court in delivering justice without entering into the merit of the disputed subject matter.
When the Court feels there is a necessity for appearing amicus curiae, the Court shall invite them as it may seem fit and proper. Afterward, the respected amicus curiae give their submissions before the Court. It is up to the Court whether it takes the point of view of the respected amicus curiae or not in its verdict. For instance, in the case of Golam Mohammad Faroque Uddin and Ors. Vs. Bangladesh and Ors. 8 SCOB (2016) HCD 67, the Court is not in a position to assess the complexity of the policy decisions, and complexity involving facts and other issues is always outside the purview of judicial review. As a result, the Court is not permitted to pose such a question. The Court is not in a position to accept the submission made by Mr. A.F. Hassan Ariff, learned Amicus Curiae, on this issue when it is determined that the classification of a group of people with a net worth of more than two crores or above ten crores is not an unreasonable classification on the face of the record and in light of the facts and circumstances of the case.
A thriving amicus curiae practice has been seen in the legal system of Bangladesh. However, to date, there has not yet been a comprehensive procedural measure of amicus curiae before the Court except in section 3 of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988. As per the rule, the Government shall assign an Advocate-on-Record to appear with the Attorney-General whenever the Attorney-General for Bangladesh is invited to appear before the Court as Amicus Curiae. Moreover, section 1 subsection (3) of Bangladesh (High Court Division) Rules 1973 states that Advocates or anyone addressing before the Court must do so with the highest respect and in a disciplined manner, upholding the tradition that has long been in place. The mood of the address to the judge must also be the same regardless of the judge's gender. The aforementioned provision also applies to the respected amicus curiae that they shall address the Court with the utmost respect as well as in a prescribed disciplined manner as mentioned.
The writer is a Research Intern at the Research Wing of A.S & Associates.
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