1. Means “friend of the Court”

In Nkgsb Cooperative Bank Limited vs Subir Chakravarty (Civil Appeal No. 1637/2022), the Supreme Court of India made reference to Black’s Law Dictionary’s definition of “amicus curiae”:

“amicus curiae. [Latin “friend of the court”] (17C) Someone who is not a party to a lawsuit but who petitions the court … or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter.— Often shortened to amicus. — Also termed friend of the court. Pl. amici curiae”[1] (Emphasis mine)

Naolekar J (later SCJ) remarked the following in Sarla Sharma vs State Of Rajasthan And Ors. AIR 2002 RAJ 301, I (2002) DMC 409, 2002 (1) WLC 178 [“Sarla Sharma”]:

“The term “Amicus Curiae” is a Latin [term] which literally means-a friend [of] the Court. An Amicus Curiae is an advisor of the Court.”[2] (Emphasis mine)

2. Not the same as representing a party in the proceedings

In Leong Kum Loon v Glomac Kristal Sdn Bhd and another appeal [2020] MLJU 778, the Court of Appeal invited a Senior Federal Counsel to attend as amicus curiae and the Court of Appeal stated that:

“Attending as amicus curiae is still a long way off from representing a party to the relevant proceedings.”[3]

In Sarla Sharma, Naolekar J (later SCJ) also observed the following:

“Leave to appear as amicus curiae differs from intervention in its usual sense in that the intervener becomes a party to the litigation, and is bound by the judgment, while, an amicus curiae does not become a party to the proceedings.

An amicus curiae is not a party to any action and does not legally appear for anyone but is merely a friend of [the] Court who so function to advise or make suggestions to the Court.” (Emphasis mine)

3. Meant to aid/assist the Court

Hasnah Hashim FCJ mentioned in passing in Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan and other cases [2021] 3 MLJ 759 that the Federal Court in two prior decisions were aided by the submissions of the amicus curiae:

“As I have alluded the doctrine of basic structure was and had been extensively argued by the parties in both Maria Chin and Rovin Jothy. In both of the appeals this court was aided by the written submissions of amicus curiae.”[4]

In Ng Yuet Mooi v Leong Yee Heim [2020] 1 MLJ 119, Mr. Kan Weng Hin (now Judicial Commissioner) appeared as amicus curiae and the Court of Appeal thanked him for his assistance:

“At the hearing of this appeal, Mr WH Kam appeared as an amicus curiae. He also filed and served written submissions. The court records its appreciation to Mr Kam for his most helpful assistance which have been rendered impartially and professionally.”[5]

4. Not a matter of right

Naolekar J (later SCJ) opined the following in Sarla Sharma:

“The amicus curiae is heard only by leave of the Court and it is within the discretion of the Court. Granting of leave to be heard as an amicus curiae is a matter of favour or grace and not a matter of right but of a privilege. Consent of the parties to the proceedings is not ordinarily essential to the participation of an amicus curiae as participation is of no personal concern of the parties and no party has a cause to complain if the court grant permission to a stranger a privilege of being heard, since no action of the stranger can affect the legal right of any of the parties to the proceedings.” (Emphasis mine)

5. Can be on the invitation of the Court

In the landmark Federal Court decision of Terengganu Forest Products Sdn Bhd v Cosco Container Lines Co Ltd & Anor and other applications [2011] 1 MLJ 25, Tun Zaki Azmi CJ remarked the following:

“Several senior members of the Bar listed in this judgment were invited to address the panel on the issues. It was agreed that this case be the test case. While counsel representing the parties in this leave to appeal submitted on behalf of their clients, other counsel were invited to address the court as amicus curiae.” (Emphasis mine)

In Datuk Hj Mohammad Tufail bin Mahmud & Ors v Dato Ting Check Sii [2009] 4 MLJ 165, the Federal Court “invited the Attorney General’s Chambers, State Attorney General’s Chambers Sabah, State Legal Counsel Sarawak, the Malaysian Bar Council, Advocates Association of Sarawak and Sabah Law Association to submit as amicus curiae.”[6]

This was also the case in Johnson Tan Hang Seng v Public Prosecutor [1977] 2 MLJ 66,[7] and Huawei Technologies (Malaysia) Sdn Bhd v Maxbury Communications Sdn Bhd [2019] MLJU 1755.[8]

6. Subject to certain considerations in order to obtain leave to appear as amicus curiae

In Jerry WA Dusing @ Jerry W Patel & Anor v Majlis Agama Islam Wilayah (MAIWP) & Ors [2016] MLJU 735, Hamid Sultan Abu Backer JCA held:

“From the above case, it is quite clear where a party does not have a right to intervene but the court takes the view that the importance of the questions involved in the proceedings; the intervention as amicus curiae is permissible. Brennan CJ in the Australian case of Levy has set out some guidelines for consideration to allow an applicant to intervene as amicus curiae and in the article cited above, it has been summarised as follows:

The court must be cautious in considering applications for leave to appear as amicus as the efficient operation of the court could be prejudiced;

The court must be of the opinion that the amicus will significantly assist the court and that any resultant cost to the parties or any subsequent delay will not be disproportionate to the anticipated assistance;

The current parties to the matter must be unable or unwilling to provide the assistance to the court proposed by the amicus that is needed to arrive at the correct decision in the case.”[9] (Emphasis mine)


[1] Nkgsb Cooperative Bank Limited vs Subir Chakravarty (Civil Appeal No. 1637/2022) [SCI] [https://indiankanoon.org/doc/129557920/]

[2] Sarla Sharma vs State Of Rajasthan And Ors. AIR 2002 RAJ 301, I (2002) DMC 409, 2002 (1) WLC 178 (HC) [https://indiankanoon.org/doc/508076/]

[3] Leong Kum Loon v Glomac Kristal Sdn Bhd and another appeal [2020] MLJU 778 (CA), at para 80

[4] Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan and other cases [2021] 3 MLJ 759 (FC), at para 272

[5] Ng Yuet Mooi v Leong Yee Heim [2020] 1 MLJ 119 (CA), at para 4

[6] Datuk Hj Mohammad Tufail bin Mahmud & Ors v Dato Ting Check Sii [2009] 4 MLJ 165 (FC), at para 9

[7] Johnson Tan Hang Seng v Public Prosecutor [1977] 2 MLJ 66 (FC), at p. 73

[8] Huawei Technologies (Malaysia) Sdn Bhd v Maxbury Communications Sdn Bhd [2019] MLJU 1755 (CA), at para 2

[9] Jerry WA Dusing @ Jerry W Patel & Anor v Majlis Agama Islam Wilayah (MAIWP) & Ors [2016] MLJU 735 (CA), at para 23