TABIL OF CONTENTS

Chapter Headline Page

No.
1 Meaning of Amicus Curiae 3

2 History of Amicus Curiae 4

3 More significantly of Amicus Curiae 5

4 Application of Amicus Curiae in Bangladesh 6-7

5 Amicus Brief in Case 8-13

Conclusion 14

Bibliography 15
Chapter 1
Meaning of Amicus Curiae
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.1

1
www.dhakatribune.com
CHAPTER 2
History of Amicus Curiae
The amicus curiae figure originates in Roman Law Starting in the 9th century, it was incorporated
into English law, and it was later extended to most common law systems. Later, it was introduced in
international law, in particular concerning human rights. From there, it was integrated in some civil
law systems (it has recently been integrated into Argentina law system and Honduras 2010 civil
procedures code). Today, it is used by the European Court of Human Rights, the Inter-American
Commission on Human Rights, the Inter-American Court of Human Rights, the Court of Justice of the
European Union and the Special Tribunal for Lebanon.2

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 materialized in England’s concept of common law. In this case, an amicus curiae
were 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 honor and integrity of the courts. 3

Chapter 3
2
Wikipedia
3
www.dhakatribune.com
More significantly of Amicus Curiae

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 realized 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.4

Chapter 4
4
www.dhakatribune.com
Application of Amicus Curiae in Bangladesh
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 realizes 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 honor 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’ honor 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. 5 

In view of 16th Amendment case of Bangladesh Constitution, the nine amici curiae who
recommended upholding the High Court order declaring the 16th Amendment to the Constitution
illegal are Dr Kamal Hossain, former Justice TH Khan, Barrister M Amir-ul Islam, Barrister Rokanuddin
Mahmud, AF Hasan Arif, former Attorney General AJ Mohammad Ali, Barrister Fida M Kamal, MI
Farooki and Abdul Wadud Bhuiyan. 

In their statements before a seven-member Appellate Division bench, led by Chief Justice SK Sinha,
the senior lawyers said it will not be right to empower parliament to impeach the SC judges.
Meanwhile, Awami League Law Affairs Secretary Abdul Matin Khasru, also a former Law Minister,
spoke on behalf of the 16th Amendment as an intervener on Tuesday. 

Attorney General Mahbubey Alam and Additional Attorney General Murad Reza stood for the state
during the hearing on the 10th day. 

The hearing on the appeal filed by the government against the HC order will come to an end on
Thursday with the state placing the counter-arguments. On September 17, 2014, the Jatiya Sangsad
passed the 'Constitution (16th Amendment) Bill, 2014' without any opposition, empowering
Parliament to impeach judges of the Supreme Court for their 'incapacity' or 'misconduct'.

 Nine Supreme Court lawyers filed a writ petition with the High Court on November 5, 2014,
questioning the validity of the amendment. 

On May 5 last year, the HC declared the 16th Amendment to the Constitution illegal. The
government on January 4 last filed an appeal challenging the HC decision. 
5
www.dhakatribune.com
On February 8, the SC appointed 12 senior jurists as amicus curiae seeking their opinions over the
legality of the amendment. 

The Constitution drafted in 1972 had given the MPs the power to impeach judges and decide their
term in office. But after the Fourth Amendment in 1975, the power was vested with the President. 6

Chapter 5
Amicus Brief in Case

6
www.daily-sun.com
(A) Amicus curiae examples have changed remarkably over the years. For instance, amicus curiae
examples in the landmark case Brown v. Board of Education (1954) totaled only six.

Statement of Facts:

Oliver Brown and other plaintiffs were denied admission into a public school attended by white
children. This was permitted under laws which allowed segregation based on race. Brown claimed
that the segregation deprived minority children of equal protection under the 14 th Amendment. 
Brown filed a class action, consolidating cases from Virginia, South Carolina, Delaware and Kansas
against the Board of Education in a federal district court in Kansas.

Procedural History:

Brown filed suit against the Board of Education in District Court. After the District Court held in favor
of the Board, Brown appealed to the United States Supreme Court. The Supreme Court granted
certiorari.

Issues and Holding:

Does the segregation on the basis of race in public schools deprive minority children of equal
educational opportunities, violating the 14th Amendment? Yes.

Judgment:

The Court Reversed the District Court’s decision.

Rule of Law or Legal Principle Applied:

Separating educational facilities based on racial classifications is unequal in violation of the

Equal Protection Clause of the 14th Amendment.

Reasoning:

The Court held that looking to historical legislation and prior cases could not yield a true
meaning of the 14th Amendment because each is inconclusive.

At the time the 14th Amendment was enacted, almost no African American children were
receiving an education. As such, trying to determine the historical intentions surrounding the
14th Amendment is not helpful. In addition, few public schools existed at the time the
amendment was adopted.

Analyzing the text of the amendment itself is necessary to determine its true meaning. The
Court held the basic language of the Amendment suggests the intent to prohibit all
discriminatory legislation against minorities.

Despite the fact each facility is essentially the same, the Court held it was necessary to
examine the actual effect of segregation on education. Over the past few years, public
education has turned into one of the most valuable public services both state and local
governments have to offer. Since education has a heavy bearing on the future success of each
child, the opportunity to be educated must be equal to each student.
The Court stated that the opportunity for education available to segregated minorities has a
profound and detrimental effect on both their hearts and minds. Studies showed that
segregated students felt less motivated, inferior and have a lower standard of performance
than non-minority students. The Court explicitly overturned Plessy v. Ferguson, 163 U.S. 537
(1896), stating that segregation deprives African-American students of equal protection under
the 14th Amendment.

Concurring/Dissenting opinion:

Unanimous decision led by Justice Warren.

Significance:

Brown v. Board of Education was the landmark case which desegregated public schools in
the United States. It abolished the idea of “separate but equal.”

(B) Another examples of Amicus curiae have changed remarkably over the years. For instance,
amicus curiae examples in the landmark case Roe v. Wade, heard only about 20 years later,
received 23.

Case Summary of Roe V. Wade:

 Roe brought suit against Wade, a state official, claiming a Texas law restricting her
right to an abortion was unconstitutional.
 The court discussed the different types of interests a state may have at different stages
during the pregnancy, specifically the interests in protecting the life of the mother and
the unborn fetus.
 The United States Supreme Court held, that the law was unconstitutional because a
woman has a right to an abortion protected under the fundamental right to privacy.

Roe v. Wade Case Brief

Statement of the Facts:

Texas Resident, Jane Roe, wanted to terminate her pregnancy. However, Article 1196 of the
Texas Penal Code limited abortions to circumstances when “procured or attempted by
medical advice for the purposes of saving the life of the mother.”  Claiming the statute
unconstitutionally restricted her right to an abortion, Roe sued Texas official Wade in court.

Procedural History:

The Federal District Court issued declaratory relief and held that the statute was both vague
and overbroad. When Roe was not granted Injunctive relief, she appealed to the United States
Supreme Court.

Issue and Holding:

Is a woman’s right to have an abortion protected under the constitutional right to privacy?
Yes.

Judgment:

Justice Blackmun delivered the opinion that the Texas law was unconstitutional and a
woman’s right to an abortion is protected under the constitutional right to privacy.

Reasoning:

Criminal abortion laws were enacted for three main reasons:

 To discourage illicit sexual conduct

 To protect pregnant woman against hazardous abortion procedures
 To preserve the state’s interest in protecting the sanctity of life

The court held the first reason, though traditional, is not seriously considered by the courts.
The second reason is outdated due to modern medical techniques. The court held the third
reason of protecting prenatal life is partially negated after considering that a pregnant woman
cannot be prosecuted for the act of an abortion.

In reaching a decision, the Court acknowledged that a woman’s right to an abortion is

covered under the fundamental right to privacy and how each fundamental right is subject to
strict scrutiny (regulation must be justified by a compelling state interest and legislation must
be narrowly tailored to further the stated interest). However, although a woman’s privacy
right outweighs any state interest during the early stages of pregnancy, the state interest in
protecting both the mother and unborn fetus grows throughout the pregnancy.

The Court ultimately decided that prior to completion of the first trimester, a woman may
have an abortion and electing to do so may not be criminalized.

After the first trimester, the state may regulate abortion in a manner reasonably related to the
mother’s health because the state has an interest in preserving the health of the mother.

The remainder of the pregnancy after the fetus reaches viability, the state may regulate or
prevent abortion unless such procedure is vital to protect the mother’s life.  This authority is
based on the state’s interest to protect the life of the unborn child.

Rule of Law or Legal Principle Applied:

Under the constitution, the right to privacy protects a woman’s right to have an abortion. The
state may regulate abortions after the first trimester and may be prohibited once the fetus
reached viability. Exceptions are made when the life of the mother is in jeopardy.
Concurring/Dissenting Opinions:

Concurring (Burger):

The abortion statute wrongfully restricts abortions for the purpose of preserving the pregnant
woman’s health.

Concurring (Stewart):

The liberty interest at stake is best supported by substantive due process, not a “vague” right
to privacy.

Concurring (Douglas):

Douglas agrees with the majority that a woman’s right to have an abortion exists and is not
outweighed by the state’s stated interest, but says the right to an abortion is a basic right
under marriage and family decisions in the Bill of Rights.

Dissent (White):

The holding merely creates a new constitutional right for women and is not supported by the
Constitution.

Dissent (Rehnquist):

The right to privacy is not at issue in the present case. Regulation of abortion should be
treated as economic and social regulations, which are upheld if it can meet a rational basis
standard of review. A sweeping decision that the state has no interest during the first trimester
is improper.

Significance:

Roe v. Wade was the landmark case which established a woman’s right to an abortion is
protected under the fundamental right to privacy. It is important to note that, although the
court implements a strict scrutiny analysis, later the established (and current) standard will
not be strict scrutiny but an “undue burden” test.7

Another Case, Amicus Brief in Chowdhury v. Worldtel Bangladesh Holding, Ltd. and Khan

In 2009, a jury found Worldtel Bangladesh Holdting, LTD and Amjad Khan liable for torturing Nayeem
Mehtab Chowdhury in an effort to obtain control of his business. Evidence produced at trial
demonstrated that in 2007, at the behest of defendants, Mr. Chowdhury was detained for 5 months

7
www. legaldictionary.net
and subjected to torture by the Rapid Action Battalion (RAB), a unit of the Bangladeshi Police known
for committing torture. Mr. Khan, the agent and representative at Worldtel, filed false criminal
charges against Mr. Chowdhury and contacted the RAB for the express purpose of having the RAB
take action against him. He made it clear to Mr. Chowdhury’s family that the torture would stop only
if he turned over control of his company to defendants and left Bangladesh. Worldtel Holding is a
Mauritius corporation operating exclusively in Bangladesh. Mr. Khan was the corporation’s
authorized representative and agent and has been a legal permanent resident of the U.S. for more
than 25 years. Mr. Chowdhury is now also a resident of the U.S.

The case included claims of torture under the Alien Tort Statute (ATS) and the Torture Victim
Protection Act (TVPA). The jury found both that both defendants were liable for torture and
awarded compensatory damages of $1.5 million and an additional $250,000 in punitive damages
against Mr. Khan. The decision was one of the first TVPA cases to go to a jury and the first jury
verdict against a corporation for ATS claims. Defendants appealed to the Court of Appeals of the
Second Circuit. The issue was fully briefed and argued when the Supreme Court decided to hear
Kiobel.

After Kiobel, the parties filed letter briefs to inform the court of the effect, if any, of the decision of
the Supreme Court in Kiobel on the defendants’ appeal. ERI’s amicus letter brief demonstrates that
the Supreme Court’s holding in Kiobel is narrow, and does not affect the claims at issue in
Chowdhury. The Supreme Court dismissed Kiobel based on a presumption against the extraterritorial
application of ATS claims, holding only that the “mere corporate presence” in the United States of a
foreign multinational corporation did not overcome the presumption. However, the Kiobel
presumption is displaced where the claims “touch and concern” the United States with “sufficient
force.”

First, ERI and CCR’s brief argues that the Court’s holding did not address, let alone limit, claims
against individuals residing in the United States. Such claims are unlikely to provoke the type of
“international discord” that concerned the Kiobel Court. This is particularly true in this case, where
the jury verdict was rendered more than 4 years ago and no negative foreign policy consequences
have occurred since that time. Furthermore, as recognized in the landmark case Filártiga v.
PeñaIrala, which allowed ATS claims for torture committed abroad against a defendant living in the
United States, the U.S. has an important foreign policy interest in not being a safe haven for
torturers. Given this important U.S. interest, ATS claims against U.S. residents sufficiently touch and
concern the United States.

Second, ERI and CCR argued that the verdict against the corporate defendant should also stand since
the case could not have been brought elsewhere. Kiobel implied that courts should not hear claims
against defendants with no connection to the forum where other fora are available and more
appropriately suited to hear the claims. But this reasoning doesn’t apply where there is no other
possible forum. Similarly, if claims based on the same facts will proceed irrespective of the ATS
claims, the ATS claims “touch and concern” the U.S. because the dispute will be adjudicated in US
courts.
Third, ERI and CCR demonstrated that the Supreme Court’s decision in Kiobel has implicitly overruled
the Second Circuit’s panel decision, which held that the ATS did not afford jurisdiction over claims
against corporations. The Supreme Court was clear that whether the ATS reaches any particular
extraterritorial conduct is not a matter of subject matter jurisdiction. Because the Court reached that
question, it necessarily did not accept the panel’s conclusion that courts lack jurisdiction over
corporate defendants.

And finally, ERI showed that the Defendants were incorrect in suggesting that Kiobel gives this Court
license to dismiss the claim under the TVPA. Kiobel applies only to the ATS and the presumption
could not apply to the TVPA, which expressly applies extraterritorially. 8

CONCLUSION
8
www. earthrights.org
The amicus curiae have certainly come a long way from his noble Roman beginnings as a learned,
respected, independent appointee of the court. His role was, as a ‘friend of the court’, to
gratuitously advise and assist the court in arriving at a just decision. In some jurisdictions,
particularly in the Commonwealth, the amicus has largely retained that function. In others, as in the
United States, he has assumed varied roles including that of a litigating amicus curiae, a lobbyist, an
intervener and an advocate.

Bibliography
List of relevant status on Amicus Curiae:

1. https://en.wikipedia.org/wiki/Amicus_curiae

2. https://www.dhakatribune.com/uncategorized/2015/01/28/significance-of-amicus-
curiae-in-legal-systems?
fbclid=IwAR3S8WtxLAo3_H8bpKc_lfydcE7g7YEg7dqCsl6a57zmTY3gHxGBP0MSd6g

3. https://legaldictionary.net/amicus-curiae/?
fbclid=IwAR0XqxdfLsaNIOGS3DPXIsM7bVC4WaIApkco027NOAn7BgzKSAZtyeG4tcU

4. https://earthrights.org/publication/amicus-brief-in-chowdhury-v-worldtel-
bangladesh-holding-ltd-and-khan/?
fbclid=IwAR0EYIqNF8ROJ0XHz_7dN2WX9fHT4h1q6hg7fOfvumvfCsWMU0wpsfoeRb
U

5. https://www.daily-sun.com/post/230362/9-amici-curiae-for-scrapping-16th-
Amendment?fbclid=IwAR1TuQ2YymzzG75KCWyrNhhBuk71nUtpi8R-Vua-cGx1a6-
BQZlkB5UxPnY