Crashing the AI Hype and Myth in Courtroom

It seems Artificial Intelligence (AI) is revolutionizing human functions in different industries. Legal industry is not an exception to that and is already affected by AI fever in several countries to bring positive changes to the traditional legal profession. It applies to streamlining legal processes in courts, analysing legal instruments, and is even being used in certain jurisdictions to predict and prescribe outcomes. 

Definitely, there are advantages to using these powerful modern algorithmic tools. However, the adverse aspects of AI are being washed away by the wave of its emerging use whereas mostly the positive features are being discussed widely. This write up aims to shed light on some of the ignored limitations of AI tools to make readers aware of the potential consequences of reliance on AI in the legal proceedings.

AI is actually a prediction tool by nature. Huge historical data are used to train AI powered tech tools and from there it learns to identify probabilistic patterns. As a result, it in fact doesn’t reason, think or question like human being although its output looks convincing and can mimic human style of reasoning. Yet a great prevailing concern is sometimes it generate false information which apparently looks authoritative.

It even doesn’t understand human language while it merely forecast the next token in a given sequence of words. So, it cannot rectify previous human error rather comes with its own set of biases which stem from the training data and subsequently reinforce them.

Law, legal proceedings and legal profession aren’t just about rules rather they are about people as well, as they deal with the problems of people. Moreover, law is neither mathematics nor a formula to be mechanically inserted into a scientific system. It is beyond that; a living and ever-changing matter that evolves with societal values, cultural norms, and ethical considerations. On the contrary, AI systems do not have the emotional empathy, ethical judgment, and human intuition, authority and experience that reflect societal values and mandatory for the legal profession.

Every case is different and so do all legal professionals i.e. counsels, judges, magistrates, court staff. Human lawyers not only apply law in court cases, but they also have skills to adopt with the judges and court environment. Accordingly, they adjust their responsibilities to the court, respond to the mood, tone, and dynamics of the moment. And here AI fails to assess the situation while human is champion in doing that.

Alongside, there is valid justification why every case is judged on its own facts cautiously. Because public need to feel justice is being done justly. There is high risk that dropping people's problem to algorithm may create barrier between public and the judicial process.

In the age of AI, there is a growing trend of representing own case to the court with the assistance of AI. Self represented litigation is gaining popularity as it saves the cost of lawyer as AI chatbot does not charge you for legal advice. Despite that, it won’t argue for you when the judge asks a question or seeks clarification during hearing. In addition, it won’t object to improper cross examination or if you’re being treated unfairly in the court. Apart from these, court is like a playground where the other side might pull a manoeuvre suddenly. Hence, you need to think promptly and make judgment calls on the spot what AI is not able to provide in self represented cases.

Furthermore, as of today, AI does not take responsibility for any wrongdoing, neither its programmer nor the company who trade it. No AI chatbot will stay beside you when the court penalize you for their fault. Recently, the Upper Tribunal (Immigration and Asylum Chamber) of the UK warned to lawyers about the use of AI, after finding that a British Bangladeshi Barrister had misled the tribunal by citing a fictitious Court of Appeal judgment generated by ChatGPT. The lawyer is also referred to the Bar Standards Board of the UK for investigation. Several other lawyers across jurisdictions also faced criticism and punishment from courts and regulatory bodies for referring to ChatGPT generated false information in real cases to the court. Thus, it’s you who are responsible for employing AI in your profession or case without knowing its limitation and having proper training on its design.

The role of the judiciary is not just to process cases efficiently but to weigh moral consequences, to ensure justice fairness, and to uphold the rule of law in a way that no machine can replicate. Therefore, we must draw a line between the application and use of AI generated outputs and our own conscience in complex, sophisticated and life related incidents resolved in courtroom.

Published in the Law & Our Rights Page of The Daily Star on 22 October 2025. 

Published in the Weekly Sampratik Deshkal on 23 October 2025 at page 7.

Don’t Disconnect Democracy Through the Scope of Internet Shutdown in Bangladesh

In the aftermath of the July Uprising, people hope that the government will strictly comply with internationally recognised legal standards and ensure the right to the internet. But the laws regulating internet communications remains concerning. During the July Uprising, the country endured a deliberate, nationwide internet blackout for five consecutive days, along with a 10-day mobile internet shutdown — a move intended to suppress the uprising. 

Moreover, the then-government wielded unchecked authority to disrupt or throttle internet access, frequently imposing outages without justification or legal basis. Despite these premeditated and systematic shutdowns, officials repeatedly denied any involvement.

Then, the SpaceX-owned Starlink satellite internet gained significant attention. At the time, expatriates mistakenly used the hashtag #Starlink, urging the restoration of internet access in Bangladesh — despite the fact that the service had not yet begun operations in the country.

On 19 February, the Chief Adviser (CA) of the current Interim Government Dr Yunus formally invited Elon Musk to inaugurate Starlink's satellite internet service within the next 90 days.

The initial discussions about introducing Starlink's services have raised hopes among the public that it could put an end to arbitrary internet shutdowns imposed at the government's discretion. As a satellite-based system, Starlink could provide uninterrupted connectivity, even during natural disasters and crises.

The CA's press secretary reiterated this expectation in a statement following the invitation to Elon Musk, emphasising that the primary reason for launching Starlink in Bangladesh is to permanently prevent future internet shutdowns.

Moreover, the Awami League government was also notorious for unlawful wiretapping, even leaking private phone conversations to the public. Consequently, there is now a pressing demand for a modern, resilient and alternative connectivity solution — one that operates independently of traditional internet infrastructure.

The public had expected that the interim government, formed in the wake of the July Uprising, would strictly comply with internationally recognised legal standards — refraining from enacting laws that permit wiretapping without warrants, politically motivated internet shutdowns, or the abuse of executive power, as seen under the previous administration.

However, concerns remain. Both the draft Telecommunication Law and the Regulatory and Licensing Guidelines for Non-Geostationary Orbit (NGSO) Satellite Services Operators in Bangladesh, prepared by the BTRC for Starlink, retain provisions allowing state-mandated wiretapping and internet restrictions. 

Faiz Ahmad Taiyeb, the Chief Adviser's Special Assistant for the Ministry of Post, Telecommunication, and Information Technology, has acknowledged the legality of wiretapping for state security — though he insists the government has no intention of imposing internet shutdowns and pledges legal amendments. He further asserts that Starlink is unlikely to oppose such measures.

Internet shutdowns violate fundamental rights, obstructing universal access, sustainable development, freedom of expression, and the right to information, assembly, economic security, education, and healthcare. Uninterrupted connectivity remains critical for political parties, activists, and marginalised communities to mobilise, amplify their voices, expose injustices, and hold authorities accountable.

In 2016, the United Nations (UN) formally recognised internet access as a fundamental human right, a stance reinforced in 2021 when the UN Human Rights Council (UNHRC) adopted a non-binding resolution on the promotion, protection, and enjoyment of human rights online. Bangladesh, alongside 42 other nations, endorsed this resolution, which urges states to: "refrain from imposing—and to lift existing—restrictions on the free flow of information, in violation of Article 19 of the International Covenant on Civil and Political Rights (ICCPR). This includes practices such as internet shutdowns, online censorship, media bans, and the criminalisation of free expression."

Despite this, governments continue to justify outages under the guise of 'public interest', 'national security', or 'public order' — though such measures often serve as tools of repression, enabling authoritarian regimes to silence dissent and suppress protests.

The ramifications of shutdowns on human rights can be severe and extensive. State censorship and surveillance through the internet and telecommunications have a detrimental impact on the human right to seek, receive, and disseminate information. 

However, access to the internet can be obstructed through various other ways including high prices, inadequate infrastructure, restriction or ban on certain sites, throttled speed, limiting mobile services to 2G transfer speeds, content moderation, temporary blockage of social media etc.

Hence, international human rights instruments and standards uniformly reject internet shutdowns as a means of information control. Restricting access via a partial or complete internet blackout is characterised as indiscriminate and disproportionate restrictions. Any restrictions on information dissemination systems must comply with the three-part tests for restrictions on freedom of expression, i.e., legality, legitimacy and proportionality. The responsibility to justify the tests is with the state attempting to limit the rights.

The legality principle provides that any restriction must be provided by law and perhaps that is why Bangladesh is also interested in keeping a scope in the law. However, the law must be concisely drafted, and it must be accessible to the public. The law should mandate strict oversight over the scope of such restriction and facilitate a forum for judicial review to prevent any misuse. 

Additionally, the law must clearly specify the extent of discretion granted to public bodies and the manner of executing the discretion. Therefore, the proposed law must fulfil these criteria, as if a law fails to explicitly explain the relevant circumstances and conditions for Internet shutdowns, it is detrimental for human rights.

The legitimacy rule stipulates any limitation on freedom of expression and other rights safeguarded by international law must aim to achieve a reasonable objective consistent with the identified grounds and be essential for attaining that objective.

When states implement internet shutdowns or interrupt access to communication platforms, the legal basis for their actions is mostly undefined. A 2022 report of the OHCHR on Internet shutdowns identified that the official justification for the shutdowns was inexplicable in 228 instances across 55 countries from 2016 to 2021.

Finally, the proportionality criteria prescribe that a restriction must be the least intrusive alternative and must not undermine the substance of the right.  An appropriate evaluation of the efficacy of the restrictions and the danger of excessive blocking is to be made. This evaluation should ascertain whether the restriction may result in a disproportionate prohibition of access to the Internet or specific content and whether it represents the least restrictive method to achieve the stated lawful objective.

Due to the arbitrary and extensive effects, internet shutdowns hardly satisfy the proportionality criterion. The duration and geographical extent may differ; however, shutdowns are typically excessive. Shutdowns not only curtail the right to expression but also interfere with other fundamental rights as they impact on citizens many essential activities and services.

The draft BTRC guideline requires that all satellite data transfer via local gateways linked to the country's International Internet Gateway (IIG), which weakens one of satellite internet's principal advantages: its autonomy from national infrastructure. This rule may result in government-mandated shutdowns affecting even satellite subscribers, as occurred earlier. Further, the draft guideline creates an obligation for the licensee to supply the National Telecommunication Monitoring Centre (NTMC) or the BTRC with any necessary information related to surveillance. Nevertheless, Starlink's launch to the Bangladeshi market should prioritise individual privacy and limit governmental interference and surveillance.

The legal acknowledgement of Internet access as a human right by the UN is regrettably inadequate to motivate behavioural change of our authorities. After the sacrifice of students and the public, it is high time for a more actionable, realistic, and effective way of securing Internet access. Hence, the authority concerned should urgently review the draft law and guideline containing provisions for shutting down the internet. 

Moreover, the government must ensure that the new law meets the above criteria to prevent political gain or abuse of power. Besides, the regulators must adopt a smarter, future-proof approach and embrace innovation instead of packing outdated telecom law in a new guise to disrupt emerging technologies. 

Published in The Business Standard on 6 April 2025.

A concise version has been published on The Oxford Human Rights Hub Blog on 18 April 2025.

Bangladesh After the 2024 Mass Uprising: In Quest of a Digitized Judiciary

 The judiciary of Bangladesh is heavily loaded with negative tags including high backlogs; severe delays; huge costs; corruptions; inconsistency in delivery of justice; absence of transparency; limited, unsafe and unplanned use of technologies; mismanagement in court documents; puzzled litigants; less conviction of perpetrators and so on. The insufficient and unplanned use of legal tech in the justice system makes the scenario even worst. As a result, the present justice system needs a major transformation from age old colonial fashioned delivery of justice to adoption of cutting-edge technologies to make its services people oriented. Advancements in tech tools like the emergence of artificial intelligence powered tools, blockchain technology, broad access to internet etc enable the court systems to provide efficient and effective justice nowadays.

The present interim government of Bangladesh formed a commission to reform the justice sector while the commission has already submitted their report to the government. Although the implementation of the reform proposals depends on national consensus among the political parties and other stakeholders. Nonetheless, Bangladesh judiciary requires massive integration of legal tech in all stages of litigation immediately to make its services productive and easily accessible to the people.

The integration of legal tech in all stages and across all courts will promote transparency and accountability, make the complex process of litigation easy and fast, affordable and facilitate the overall court services to the people. The utility of legal tech has already been proved in many jurisdictions, and it becomes an integral part of modern judiciary.

In 2020, when the court systems became paralysed due to the COVID19 lockdowns worldwide, technologies were extensively applied as a means to combat the pandemic restrictions and opened new doors for access to justice challenges. Bangladesh also similarly witnessed the blessing of legal tech at that moment. The promulgation of the Usage of Information and Technology in Court Ordinance, 2020 (subsequently, the Adalat Kartrik Tottho-Projukti Bebohar Ain, 2020) was one step forward towards the integration of legal tech in the courts although little progress have seen after that.

Presently there are some uses of legal tech in the judiciary i.e the website of the Supreme Court (SC) provides cause list, judgments and orders, a web portal disseminate e-cause list for all subordinate courts (https://causelist.judiciary.gov.bd), a website to circulate subordinate court’s decisions (https://decision.bdcourts.gov.bd), an online monitoring tool to collect and analysis data from subordinate courts (mcsc.supremecourt.gov.bd), bail orders can be accessed and verified through the 'Bail Confirmation Online Manual', an online knowledge base platform for the judges (faq.bdcourts.gov.bd) etc. The government's a2i project has created supporting app like Judicial Monitoring Dashboard My Court. A platform has been introduced to provide information relating to judicial services including inheritance calculator, judipay, e-filing, e-certified copy etc (www.judiciary.gov.bd).

In 2025, a High Court Division (HCD) bench launches WhatsApp based slip receiving system. Under the new system motion, extension of time and application slips will have to be scanned and sent to a designated WhatsApp number within stipulated time. Earlier this year another HCD bench introduced paper free filling of cases. However, the bench requires physical filling of an affidavit along with print confirmation copy of case document uploaded on the SC portal by the concerned lawyer to the court. On the other hand, using WhatsApp for a formal legal proceeding represents informal approach.

Nonetheless, all the abovementioned efforts to digitize the justice sector are either not functional or insufficient to overcome the present barriers. The above initiatives are praiseworthy although there are a lot of limitations in these systems. Some of the above systems were project based whereas many of them are not functional after the end of the project. The e-cause list programme is not up to date due to lack of manpower and monitoring.

Moreover, judicial dashboard and e-certified copy programme are not operational now. E-filling is not mandatory for the lawyers and that is why lawyers prefer to file cases manually in paper based physical system due to long run tradition and habit. As a result, court record and document management faces huge challenge. Maintain pile of paper files, keeping them in good condition and searching a document from them manually presents another significant challenge. Besides, there are century long colonial procedural laws such as the Code of Civil and Criminal Procedure, Civil and Criminal Rules and Orders etc which do not allow digital intervention in the court proceedings.

Allocation of low budget and inadequate investment to digitize the justice system is one of the main challenges. Furthermore, lack of properly trained court staff to operate the legal tech tools; absence of supervision and monitoring by the SC; unfamiliarity with the new systems to the judges, lawyers and staff; necessary training and technical knowledge gap of the lawyers, judges and staff; habitual preference of handling court procedure manually etc contribute to linger the proper digitization of the judiciary.

Nevertheless, there are risks to incorporation legal tech into the judiciary too i.e. data privacy and security concerns, discrimination, bias etc. Certain risks associated with legal tech tools can be effectively avoided through prudent design, procurement, and regulation, but other risks necessitate continuous watchful oversight and ethical application along with robust regulation.

Mandatory e-filling system, video/virtual courtroom, video/remote appearance of accused from prison, arrangement of distance hearing, advanced systems for digital record of evidence of witnesses, apply AI in specific court functions, collaboration and exchange of document electronically with other agencies on digital data sharing and exchange projects can accelerate the process of digitization and make the judiciary a truly people’s institution after the mass uprising in 2024.

Published in the Law and Our Rights Supplement of The Daily Star on 22 March 2025.

Published in the Protidiner Bangladesh as Sub-editorial on 23 April 2025 at page 4

Published in the Weekly Sampratik Deshkal on 24 April 2025 at page 6.

Published in the daily Ajker Patrika as Sub-Editorial on 11 October 2025 at page 4.

Gender and Justice: Navigating the Arguments Around Prenatal Sex Detection in Bangladesh

 The High Court Division (HCD) of the Supreme Court of Bangladesh has directed authorities to adhere to guidelines that discourage (without prohibiting) the disclosure of a foetus’s sex for non-medical or social reasons to prevent biased sex determination, and protect unborn babies and pregnant mothers. The verdict triggers fundamental jurisprudential question as to how the guidelines prepared by the Health Directorate (DGHS) will deal with a vital issue like foetal sex determination as it lacks binding force. It also raises concerns about the balance between preventing projected harm and respecting individual autonomy. A more profound societal shift, encompassing legal, political, and cultural reforms, holds the key to addressing the complex web of issues surrounding gender inequality and sex selection in Bangladesh.

Reasons behind this Judgment

Like other Asian countries, many Bangladeshi families prefer to have male children for various economic, social, cultural and religious reasons. Consequently, the probability of termination of the foetus is higher by disclosing the sex before birth as female, although abortion is prohibited in the country.

There are multilayer risks to revealing the sex of an unborn offspring in a society like Bangladesh including forceful sex-selective abortion. Expectant mothers face potential physical and mental abuse, abandonment, divorce, or even death by male partners and in-laws.

Can the Verdict Prevent Gender Discrimination in Bangladesh?

This judicial pronouncement may be regarded as an easy solution but may not be the efficacious or humane attitude to eliminate gender inequality. This initiative would not be fruitful at enhancing gender equity without emphasizing other initiatives to change societal norms and root causes, and thereby reducing the demand for sex identification and forceful abortion.

Additionally, it cannot prevent the risk of maltreatment towards unwanted girls and their mothers in the household. The higher ratio of male to female citizens was attributed to the killing or neglect of female infants, even before the evolution of technologies to detect the sex in womb.

On the contrary, the implementation of law is a common challenge in Bangladesh and perhaps that is why the court tightened the scope for prenatal sex detection despite having a strict anti-abortion law. The underprivileged will possibly resort to unsafe and costly illicit means for sex identification due to the lack of monitoring of enforcement whereas the affluent sections of the country may travel to where neither abortion nor sex selection are illegal. Nonetheless, the effectiveness of the guidelines is also dubious as it only regards the non-compliance of its provisions by medical practitioners as a professional ethical issue only. Hence, the implementation of the guidelines will be really challenging without any binding legal framework.

Way Forward

In the pursuit of a more equitable society, it is imperative to move beyond mere prohibitions and encourage a comprehensive approach that tackles the root causes behind gender inequality in the country. Promoting gender equality in all spheres of the society in Bangladesh and prioritisation of women’s participation in economic engagement, particularly in employment and access to assets such as real estate and financial assistance are essential to enhance their engagement in the State economy. Acknowledging women’s unpaid domestic labour in the national GDP and advocating for equitable home obligations could be a vital measure. Moreover, facilitating women entrepreneurs and enhancing infrastructure will promote economic inclusion and eliminate son preference from the parents.

Strengthening the enforcement of law against gender-based violence, reform of judicial systems to ensure just disposal, enlarging social welfare programmes and services for women, and the expansion of women’s participation in political process (including leadership and decision-making) are key to ensure equality in the country. Underprivileged classes including Dalits, hijras, fisher-folk, sex workers, and ethnic and religious minority women must be equally integrated into policymaking and State development frameworks.

Conclusion

Simply discouraging foetal sex identification through executive guidelines is an inadequate attempt that does not confront the entrenched social and economic disparities fuelling gender inequality in Bangladesh. Limiting access to bodily information to prevent anticipated abortions harms individual autonomy as well. Thus, a blanket policy despite having rigorous anti-abortion law also affects people who would never consider abortion. In the absence of legally mandated enforcement and comprehensive socio-economic reforms, the verdict will predominantly be symbolic and ineffectual.

Published on The Oxford Human Rights Hub Blog on 17 February 2025.

The Aspiration for Equitable and Sustainable Accommodation for Students in Ireland

 Ireland encounters severe challenges to offer decent and affordable accommodation for all, hitting both international and domestic students particularly hard. Insufficient houses with essential facilities, high rent, poor living conditions, sudden evictions, cramped spaces etc often leave students struggling to find viable housing in cities in Ireland.

As Ireland’s universities increasingly rely on international tuition, there is an ethical imperative to ensure suitable accommodation for these students, who contribute significantly to both the educational system and the economy. A multifaceted approach involving universities, local and central authorities, and landlords is needed to address these challenges and to foster a more inclusive and supportive environment.

With rents soaring and frequently fluctuating, many students are forced into precarious living arrangements. Some landlords impose excessive fees and enforce strict conditions that complicate renting. There is also lack of effective regulation of these issues.

Inadequately maintained buildings, limited heating, and overcrowded spaces (often two or three students in a small room) lead to unhealthy living conditions. Moreover, these spaces may lack the necessary facilities to support a comfortable stay and attentive study.

It is quite understandable that building hundreds of houses along with facilities like schools, hospitals, groceries etc cannot be possible on a night like the crisis also doesn’t emerge overnight. Therefore, prioritising immediate solutions, initiating large-scale, practical, visible, and viable actions are expected from the concerned to overcome the situation. Schemes like first home wouldn’t be viable for students as they are not economically solvent to buy a house during studentship. Hence, I propose the following alternatives to address the housing crisis.  

Limited transport links to university areas prevent students from finding affordable housing in more remote or rural areas. Without a dependable shuttle arranged by the universities and visible effort by the transport management authority to make public transport more frequent, available and affordable; students are limited to high-rent areas near campus. Providing shuttle services between remote residential areas and the university would allow students to consider more affordable housing options outside city limits. Increased transportation routes and more frequent public transport services would make it easier for students to live further from campus, easing pressure on high-demand areas near the university. So, the authority concerned should take immediate initiative to divert renters proportionately to every corner of the city and county by enhancing present public transport services.

On the other hand, regular dialogues between students and university administration would allow students to voice concerns and propose actionable solutions. Because universities get new cohorts of students every semester while students come with aspirations and hopes to flourish themselves from various parts of the world. In many cases, they are unaware of the fact of extreme accommodation crisis in Ireland and other issues surrounding this. As a result, a lot of scams relating to property rent take place always in new ways. That’s why frequent activities like tricks and tips for house hunting are necessary for newcomers.

Most of the non-EU students come from different cultural contexts, so they also need to know the expectations of local landlords and get acquainted with Irish culture and tradition. Mere WhatsApp groups created by fellow students, some online platforms to search for rental houses and university accommodation services alone are not adequate to tackle the situation. Thus, a comprehensive and holistic approach is urgent to address this severe problem. University officials can use this platform to explain limitations while also working collaboratively to find practical solutions for decent accommodations.

Universities could commit to providing accommodation for non-EU students, given the high tuition fees they pay. In addition, allocating spaces specifically for international and visiting students would alleviate some of the pressures they face in the Irish rental market.

The government and university authorities together could offer benefits, such as tuition fee waivers for landlords with family members attending the university, as an incentive for them to rent to students at fair rates. Apart from tax credits, this policy would also encourage landlords to support student tenants more equitably.

Local authorities should establish standards for student accommodations to ensure safe, fair living conditions as students need a specific environment to continue their studies attentively. Universities and students could further collaborate with landlords to build positive relationships, potentially reducing cases of eviction or unreasonable demands. Moreover, universities must have some urgent housing to provide shelter to homeless and extremely vulnerable students.

Establishing volunteer programs where students assist elderly landlords or participate in community service could help foster better understanding between local residents and international students. Such a program would create a support network for students, especially those facing housing difficulties.

Organising cultural exchange events could help local landlords understand the value international students bring to Ireland’s cultural and economic landscape, potentially fostering greater goodwill and cooperation.

International students contribute significantly to Ireland’s economy, through tuition, manpower, intellectual input and by supporting local businesses. Their presence enriches the cultural fabric of the country, fostering diversity and global awareness. By addressing the housing crisis, Ireland can ensure that students feel welcomed and valued, which can increase student satisfaction, improve international enrolment rates, and enhance the country’s reputation as a centre of education.

Ireland’s housing challenges for international students demand immediate action. By fostering better university-student relationships, improving transportation options, incentivising landlords, and encouraging community integration, Ireland can create a supportive environment for students from around the world. Addressing this issue comprehensively will strengthen the country’s academic community and enhance the well-being of its students, ensuring that they can focus on their studies without the additional burden of precarious housing conditions.

Published on the Student Independent News (SIN) on 23 January 2025.

From Jus Soli to Legal Battles: Unpacking the Origins, Legalities, and Future Implications of the US Birthright Citizenship

The ban on the US birthright citizenship (jus soli-right of the soil) by the 47th President of the United States Donald Trump is probably one of the most discussed topics at this moment across the globe. This means babies born on the US soil are no longer entitled to obtain citizenship automatically by birth.

Earlier President Donald Trump termed it as “birth tourism” and banned this century long constitutionally guaranteed right immediately after being sworn. He signed the directive called “Protecting the Meaning and Value of American Citizenship” on 20 January. However, the order would take effect in the following 30 days.

The Origin of the Birthright Citizenship in the USA

The US citizenship was mainly regulated by the laws of individual states since the independence of the country in 1776. Although the Supreme Court of the United States (SCOTUS) ruled that slaves brought to the US and their descendants could not be considered citizens in the Dred Scott v. Sandford (1857).

Nonetheless, the 14th amendment to the USA Constitution provides legal recognition of citizenship by birth and states ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside’.

Afterwards, in United States v. Wong Kim Ark (1898), the SCOTUS held that laws passed by Congress cannot exclude persons born in this country from the operation of the broad and clear words of the Constitution. The SCOTUS decided regardless of the citizenship status of Wong’s parents, he was “subject to the jurisdiction” of the US and qualified for citizenship as a child born in the country, Justice Horace Gray wrote for the majority. Additionally, the court confirmed that “the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth”.

Later in 1924, the Congress widened citizenship for all Native Americans born in the United States. The Immigration and Nationality Act of 1952 defined citizens and also recognized birthright citizenship. Subsequently in 1982, in Plyler v. Doe, the SCOTUS reaffirmed birthright citizenship for children of undocumented immigrants.

Exceptions to the Rule

Child born in the US to a foreign diplomatic officer with diplomatic immunity are not considered as the US citizen because they are not subject to the jurisdiction of the United States.

Moreover, in 2021, the SCOTUS declared that anyone born in American Samoa’s unincorporated territories are not automatically guaranteed birthright citizenship, unless Congress enacts legislation. Also, the baby of enemy occupiers – does not have the birthright citizenship.

The Contents of the Executive Directive

The order creates two groups of individuals born in the US who would not be entitled to get by birth citizenship automatically. Firstly, those whose mother was unlawfully present in the US and whose father was not a US citizen or lawful permanent resident at the time of the child’s birth; and secondly those whose mother was in the US on a lawful but temporary visa i.e as a student or tourist and whose father was not a US citizen or lawful permanent resident at the time of the birth.

The order relies on legal interpretation that the phrase “subject to the jurisdiction” of the US would not be applicable for the undocumented immigrants. Although Plyler v. Doe (1982) promulgated that according to the 14th Amendment, there was “no plausible distinction” between immigrants who entered lawfully and those who entered unlawfully as both were subject to the civil and criminal laws of the State they resided in.

Temporary Restraining Order by the Court

The US District Judge John C. Coughenour issued a ruling on 23 January in response to suit from a coalition of states — Washington, Arizona, Illinois and Oregon that temporarily restraining Trump’s order nationwide for next 14 days. The court called the order as blatantly unconstitutional to the 14th amendment. President Trump’s administration will challenge the restraining order.

The Consequences of the Order Abolishing Birthright Citizenship

Donald Trump claimed that the US is the only state offering birthright citizenship. Although more than 30 countries have the same system of acquiring citizenship including Argentina, Brazil, Canada, Mexico, Uruguay, Venezuela etc. On the contrary, more than 20 countries have reversed or rolled back their policies like the UK, Ireland etc. 

There were an estimated 11 million immigrants in the U.S. illegally in January 2022, a figure that some analysts now place at 13 million to 14 million. Their US-born children are considered by the government to have the US citizenship. 

This new presidential directive eliminating birthright citizenship if sustained from the court will affect immigrants and short-term visa holders. Citizenship status and associated issues of newborns would be affected from now. Furthermore, the president will get to decide who is subject to the jurisdiction of the United States and who is not.

Even if the Trump administration is unable to completely ban birthright citizenship of the children of certain immigrants for court’s intervention, officials have reportedly been exploring other ways to tackle the ‘birth tourism’. For instance, they could try to restrict short-term visas for pregnant travellers, so those travellers couldn’t give birth in the boundary of the US.

Birthright Citizenship for Foreigners in Bangladesh

Bangladesh does not recognize birthright citizenship under its citizenship laws. Section 4 of the Citizenship Act of 1951 stipulates that a person shall not be a citizen by birth if his father possesses immunity as an envoy of a sovereign power and is not a citizen of Bangladesh or his father is an enemy alien, and the birth occurs in a place then under occupation by the enemy.

Enemy aliens are people who do not recognize or refuse to recognize the sovereignty, territorial integrity and independence of Bangladesh and whose country of citizenship is, or was, at war with Bangladesh since the declaration of independence. However, citizenship of Bangladesh can be acquired by birth if the identity or nationality of the parents is unknown except children of enemy aliens born in Bangladesh, people residing illegally or refugees in Bangladesh. That is why, Rohingya babies and stranded Pakistani Bihari community’s children do not get citizenship of Bangladesh until 2008 when the High Court Division gave citizenship to stranded Pakistani Urdu-speaking people in Bangladesh in Md. Sadaqat Khan (Fakku) and Others v. Chief Election Commissioner, Bangladesh Election Commission.

Does Ireland Permit Birthright Citizenship?

A child born in the Republic of Ireland was an Irish citizen by birth until 31 December 2004 through the 19th Amendment of the Constitution of Ireland in 1998. However, subsequently, in 2004 the 27th Amendment of the Irish Constitution abolished the automatic right to citizenship by birth for anyone born in Ireland after 1 January 2005 and gave authority back to the Oireachtas (the Irish Parliament) to decide on laws about citizenship by birth.

Published in the Bonik Barta as Op-ed on 28 January 2025

Published in The Daily Star at Law and Our Rights page on 1 February 2025

Published on the Student Independent News (SIN) on 1 February 2025.

Published on the Irish Humanities Alliance Blog on 13 February 2025.

Published in the Eagle (The Trinity College Law Gazette) on 2 March 2025.

A Longer Version Published on the Human Rights in Context Blog (Ghent University, Belgium) on 28 February 2025.

Gavel Adopts Gadget: The Risks of Artificial Judicial Decision-Making

Artificial Intelligence (AI) systems have been integrated in many jurisdictions including China, Estonia, Taiwan, Canada, the UK, Peru, and Mexico to assist judges, mediators and other adjudicators in the administration and delivery of justice. AI judging has now become a reality in the judicial decision-making process. Judges from Colombia, India, Pakistan, the USA & the UK admittedly applied AI to adjudicate legal matters.  However, the scale of using AI in judicial decision-making may be far higher.

AI emerges as a beneficial tool for lowering the effort and cost needed to examine the documents, determine and apply appropriate provisions of law to a given fact, and increase accuracy by generating predictions. As a result, judging by AI arguably has the potential to be fairer and more neutral than human judges.  Therefore, some regard it as a cheap, fast, and scalable alternative. Human judges are by nature expensive as they have prepared for years, take time to adjudicate, retire, and are also limited in number, while AI systems can work more than 8 hours in a day tirelessly, do not take time off, and receive zero wages.

Dangers of Artificial Judicial Decision-Making

However, the accountability of judges can be compromised and weakened through the integration of AI tools in the decision-making process. This is because judges are likely incapable of delivering or clarifying the reasons an AI system produced while making a decision where the vendor’s software they rely on does not provide detailed information about its functionality and is not transparent.

Often, the functionality of an AI system is not revealed for the sake of operational secrecy or to protect trade secrets or privacy of personal information in training data. On the contrary, providing just and reasonable cause in judgments is one of the fundamental principles of justice.

AI systems are often trained with public source data which are not always authentic. Moreover, they do not have the self-capacity to evaluate and adapt to the social changes of the time. Furthermore, AI tools are not capable of applying discretion like human judges in specified circumstances. This may create injustice in many cases, as tech tools are not eligible to evaluate each case with appropriate considerations. Some cases may require progressive attempts and favour from the court to bring the marginalized into the mainstream, which algorithms cannot do on a case-by-case basis.

The quality of output given by AI is also questionable, as it relies on a vast past database, which may lead to inaccurate, incomplete, misleading, or out-of-date outcomes. Hence, there is a high risk that algorithmic judges would replicate the previous mistakes, discrimination, and bias of former cases. Discrimination may also result from the selective use of technology by human judges, and the susceptibility of algorithms to different cognitive biases.

Another dimension of integrating algorithms into judicial decision-making is accurately translating the legislation into codes, commands, and functions that a computer program can understand. Also, generative AI often produces fictitious case references (often called AI hallucination), incorrect interpretations, or quote overruled decisions.  This needs to be addressed before deploying AI in the decision-making practice, especially to preserve the right to fair trial.

Consequently, incorporating Algorithmic Decision Making (ADM) in judicial decision-making processes may vitiate core judicial values like the fairness of justice, diversity, equality before law, right to equal protection of law, and the right to privacy.

Public Concerns

Moreover, how can the court guarantee the security of clients’ privileged data when shared with AI algorithms? How does the public keep confidence that the information shared with AI is securely protected? Additionally, there is a risk that AI algorithms could be hacked or manipulated, which could lead to wrongful convictions. There is also the potential for power imbalance between parties to a lawsuit as the richer group may have more affordability and control over the use of AI systems than the marginalized. Therefore, public trust in the judiciary may be diminished as the public may not trust AI judges to make fair and impartial decisions.

What Can be Done

Adequate training on the functions and negative impacts of AI in the judiciary is essential for judges. Institutional oversight should be urgently employed to ensure that AI is used responsibly and cautions have been taken to mitigate the risks, as regular auditing by a superior authority can create an extra shield against the irresponsible and unethical use of AI.

Published on the Oxford Human Rights Hub Blog on 20 January 2025.

Published on the Daily Bonik Barta on 6 January 2025.

Published in the Weekly Sampratik Deshkal (Bangla) on 6 February 2025 as lead story on page 1.