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.

The Necessity of Reforming the International Crimes Tribunals Law of Bangladesh for Fair Trial

 The present interim government of Bangladesh has decided to try the former ousted prime minister Sheikh Hasina before the International Crimes Tribunal (ICT) accusing genocide and crimes against humanity during the students led anti-discrimination mass uprising between 1 July-5 August along with all involved in these crimes. The decision follows the first complaint made against her with the probe agency of the ICT on 14 August together with former ministers, law enforcers and her party men.

The Hasina-led government domestically constituted the ICT in 2010 under the International Crimes (Tribunals) Act of 1973 to probe atrocities during the liberation war against Pakistan in 1971. As a result, there is disagreement among lawyers about whether the tribunal is competent to try the war crimes of 1971 only or offenses that took place afterward as well. There is no such explicit bar in the ICT Act while jurists opined that the July-August massacre can be tried before the tribunal. Apart from this, some analysts advise going to the International Criminal Court (ICC) while few propose forming a hybrid ad hoc international crimes tribunal under the UN.

There were huge criticisms both politically, legally, nationally and globally including Human Rights Watch, Amnesty International, the UN Human Rights Council etc against the Hasina formed tribunals for lack of neutrality and non-compliance with the international legal standard. Even members of this current interim administration also critiqued boldly about the political motive, lack of due process and procedural fairness of the ICT.

Thus, the tribunal as well as the ICT Act need massive legislative and institutional reform to align with the international standard and ease the previous controversies against it. The ICT Act is outdated and has not been updated after the evolution of new international criminal law jurisprudence specially after evolving the ICC. Within the existing framework, the trial of Sheikh Hasina and her allies will not be fair and neutral. This may lead to concerns about using the Act as a tool for political vendetta rather than genuine justice.

Consequently, if Hasina's trial also takes place under the same arrangement, then it will again be condemned by the international community. The perpetrators of the July-August mass killing will also get the opportunity to vindicate the credibility of the trial even though they did not take all these criticisms into notice themselves earlier.

However, the adviser to the ministry of law, justice and parliamentary affairs of the current interim government has disclosed in a recent interview that they will address the concerns expressed by foreign and UN agencies relating to deficiencies in definitions, limitations in recording evidence, constraint of right to get legal relief of the accused persons etc.  

Experts have identified both substantive and procedural flaws in the legal framework and practice of the tribunal. Human rights and legal monitor bodies have also urged to define crimes against humanity and genocide comprehensively in compliance with international criminal law, and that due process rights for the accused be enlarged. The ICT Act, as amended, did not permit the accused a right against self-incrimination or a right to legal counsel when being questioned by the investigator. Moreover, the Act does not provide robust witness protection measures, which could discourage witnesses from coming forward or lead to intimidation, thus compromising the integrity of the proceedings.

Other loopholes include restrictions on interlocutory appeals to the Supreme Court and limitations on challenging the composition of the judicial bench. Earlier, the appointments of the prosecutors and judges of the tribunal were condemned due to their lack of expertise and affiliation with the then government. Under section 6(8) of the Act, the formation of the tribunal cannot be challenged either by the prosecution or by the accused. The government has already appointed the chief prosecutor and four other lawyers as the prosecutor of the tribunal although reorganisation of the tribunal is yet to done.

The defective application of the modes of liability and the ingredients of offenses presents critical concerns as to the fairness of the trial. During Hasina's regime, the tribunals also prohibited open access for foreign observers and journalists. Free observation is crucial not only during trials but also in the pre-trial stage for transparency. Furthermore, the defence was not allowed to engage foreign lawyers or given adequate time to prepare its case which needs to be addressed adequately now. Although the Law Adviser confirmed that foreign lawyer will be allowed to get involved in hearing process by amending the law. He also informed that foreign agencies would get opportunity to observe the process as they may not be able to involve with the trial process directly due to the existing capital punishment provision in the law.

The tribunal's significant limitation in defining the 'crimes against humanity' as it ignores considering the newest criminal law necessity of crimes against humanity. It needs to be committed in a 'widespread and systematic' attack against any civilian population. This jurisprudence emerged during the 1990s by the UN-backed ad hoc international criminal tribunals (the ICTY and the ICTR) and is regarded as the customary rule of international law. Subsequently, the Rome Statute also accepted this principle of customary international law and other internationalized criminal tribunals, prosecuting crimes against humanity. Therefore, the definition of crimes against humanity under the ICT Act does not comply with present and past customary international law advancements, which are necessary for identifying and differentiating the same crimes from ordinary crimes.

Hence, in prosecuting and punishing such crimes, the law needs to include the customary law ingredients of crimes against humanity; otherwise, the crimes in question never be separated from domestic crimes of murder, extermination, torture, etc. If the prosecuting tribunal neglects to apply customary law requirements of crimes against humanity, the legitimacy of the tribunal sets substantial doubt in ensuring criminal justice for the parties.

The ICT also put a legal obligation on the State to enact law prohibiting and punishing the crime of genocide at the national level. According to the Constitution of Bangladesh, a treaty obligation is also conferred by the Genocide Convention, 1948 on Bangladesh as a contracting party to it.

The current interim administration has already sent an official letter to the UN High Commissioner for Human Rights to probe the recent student movement and uprising along with finding out the causes of past and latest violence and recommendations for necessary measures to prevent such occurrences in future. However, the UN has historically opposed the death penalty and campaigned for its abolition. The ICT Act has provision for death sentence among other suggested punishments.

Nevertheless, section 8 of the ICT Act implies that an agency will be established by the government for the purpose of investigation. Now, a question may come whether the UN prob team will be a part of that agency. If not, then it is not clear under the existing provisions as to the acceptance of an investigation report prepared by the UN as the government-constituted agency is primarily responsible for investigation.

However, the Constitution of Bangladesh has provision to exclude fundamental rights including protection in respect of trial and punishment for the war criminals held at the ICT. The very 1st amendment to the Constitution (Art. 47(3)) struck out fundamental rights for member of armed, defence or auxiliary forces at the ICT. Subsequently, the 15th amendment took fundamental rights away for any individual, group of individuals or organization as well. Consequently, there was criticism about the ICT for going beyond the scope of constitutionally guaranteed fundamental rights.

The recent anarchy in the courts raises serious questions relating to the fairness of justice and the rights of the accused. Also, there are suspicions about those arrests, for example, former state minister for Posts, Telecommunications and Information Technology Zunaid Ahmed Palak had been detained at the airport on 6 August during an attempted departure. Albeit the authority did not inform under which law they captured him at the airport. Later, police showed him arrested on 14 August. As a result, his condition from 6 to 14 August is not certain whereas constitutionally police cannot detain anybody for more than 24 hours without producing him to the magistrate. 

The government has not disclosed their stance as to how do they deal with the complaints, investigation, appointment of prosecutor, judges, trial etc. in the ICT. The government may set up one or more designated contact points for victims of violations, or their family members, to seek assistance, information and advice as filing a flawless case is highly complicated which private individuals cannot do.

It is expected that the present administration will ensure the rule of law and respect human rights for all including the accused after the exemplary fall of the repressive political regime and mass uprising. Criminals must be brought before justice adhering to proper and just legal proceedings.

Published in the New Age as Op-ed on 8 September 2024 on page 9.

Published on the International Law Blog on 23 September 2024

Make the Bus in Galway City Timely and Available, Please…

 The bus services in Galway city have been facing considerable delays, causing severe frustration among the regular passengers. I’m an international student at the University of Galway and I frequently travel particularly through 404 and 405 buses operated by Bus Éireann in Galway. Late arrivals are a common issue of these buses, leading to missed appointments and increased journey times. We need a solution to this problem who often take public transports to commute. However, there are numerous factors contribute to these delays, and addressing them by the concerned authority immediately can assist improve the public transport system for the city and give a relief to the travellers.

One of the major causes of bus delays in Galway city is heavy traffic congestion especially in morning and afternoon hours. Galway's roads are often crowded with private vehicles, creating traffic bottlenecks during peak hours. With the city's population growing and more people relying on cars, buses get stuck in the same traffic jams, reducing their efficiency and punctuality. Inadequate bus priority measures, like dedicated bus lanes, further compound the problem, as buses compete with other vehicles for road space.

Another issue is the unpredictability of the buses' schedules. In many bus stops like John Cogan Park and Gaelcarraig Park, especially on routes 404 and 405, there are no posted timetables at the bus stops, leaving passengers uncertain about when the next bus will arrive. Even where schedules are available, the buses often do not adhere to them, adding to the unreliability of the service.

I personally notice in some bus stops people also cannot rely on the time shown on the digital display as the display often change the bus arrival time. Few make joke that those display boards count 100 seconds for a minute. This lack of information can be exasperating, as it prevents commuters from planning their journeys effectively. Absence of timely bus services are causing incredible hardship for passengers who do not own car. The government want us to walk, cycle, take buses whereas we do not get adequate buses in time.

Additionally, long boarding times contribute to delays. Some bus stops, particularly during busy times, have large numbers of passengers waiting to board, which can slow down the service further. A lack of efficient boarding systems, such as multi-door entry or contactless payment, can lead to longer waits at each stop.

Another key issue affecting bus delays and overall commuter experience in Galway is the infrequency and reduced services in weekends. Currently, buses like the 404 only run twice an hour, leaving long gaps between services. This limited frequency means that if a bus is delayed or missed, passengers are left waiting for extended periods, causing significant inconvenience. More frequent buses, especially during peak hours, would alleviate this problem by providing passengers with more flexibility and reducing overcrowding on buses. Increasing the number of buses to at least four per hour would significantly enhance the efficiency of the public transport system, reduce wait times, and improve overall satisfaction among commuters

In Galway, restaurants, café, pubs remain open until 2 AM, but the last bus departs before midnight, leaving late-night commuters and students living in Galway stranded. Introducing late night buses would provide a safe, convenient option for those out late, ensuring public transport caters to the city's nightlife and reducing reliance on expensive taxis.

To improve the public transport system in Galway, several measures can be taken. First, implementing dedicated bus lanes and bus priority signals at key intersections would allow buses to bypass traffic congestion and maintain their schedules. This would significantly reduce delays and make buses a more attractive option for commuters.

Second, providing effective real-time bus tracking and updating the physical timetables at bus stops would help passengers plan their journeys more effectively. Third, improving the boarding process, perhaps by implementing better ticketing solutions, could reduce the time spent at each stop, helping buses to stay on schedule. Finally, by increasing bus frequency and launching late night buses, Galway can significantly improve the reliability and quality of its public transport system, making it more accessible, dependable, efficient and user-friendly for its residents and all the commuters.

Published in The Galway Advertiser on 19 September 2024 on page 24.

The Legal Hurdles to Bring Sheikh Hasina Back to Bangladesh from India

THE deposed prime minister Sheikh Hasina has taken shelter in India since August 5, when she was compelled to resign in the face of a student-led mass uprising. Subsequently, the media reported, and her son Sajeeb Wazed Joy also confirmed that she was not willing to leave the country, whereas her family members forced Hasina to flee to India as they feared a threat to her life. According to a UN report, nearly 650 people were killed in police brutalities in July-August. Unarmed civilians, children, and students were indiscriminately and brutally killed by the law enforcement agencies throughout the protest.

Family members of the victims, protesters, and students alleged that many of them were shot by the police on her orders, and consequently, the first criminal case was filed against her on August 13 before a Dhaka Metropolitan Magistrate court. Since then, more than 50 criminal cases have been lodged against her along with her cabinet members, partymen, and aides for murder, torture, enforced disappearance, abduction, attack, etc. in ordinary criminal courts, including a few in the International Crimes Tribunal (which was actually constituted during her regime to try the war criminals of 1971) for genocide and crime against humanity.

However, there was a demand from the beginning when she escaped to India to bring her back to Bangladesh and try all the crimes that took place during her tenure in power. The demand got momentum again when these criminal cases were being filed against her. Moreover, the law adviser of the newly formed interim government also confirmed that they would go to the International Crimes Tribunal to try her for her offences during the protest.

Thus, the question of Sheikh Hasina’s extradition from India becomes relevant in this scenario, although the criminal courts and the ICT have jurisdiction to try in absentia. However, the trial in her absence and without bringing her back to the country will not be fruitful. At the same time, extradition is a complex process that not only involves legal issues but is also associated with international, political, diplomatic, and human rights concerns. 

Extradition Treaty between Bangladesh and India

NEW Delhi and Dhaka have an extradition treaty signed in 2013 during Hasina’s regime and subsequently amended in 2016. This is the first time in the history of Bangladesh when a former prime minister was forced to resign through a mass uprising and fled directly to India. It is not clear whether Sheikh Hasina is going to seek political asylum in India or anywhere else yet. The situation became more complex when the interim government of Bangladesh revoked the diplomatic passport of Hasina, her advisers, cabinet members, all the members of the dissolved 12th national parliament, their spouses, and their children on August 22. She was enjoying the privilege of the red passport in India, which allows her to stay there for up to 45 days without having a visa. Indian officials have remained silent from the beginning about the status of the former prime minister in India, and it will now be more difficult for her to flee elsewhere after the cancellation of her diplomatic passport.

The interim government so far has not taken any visible action to bring Hasina back from India, whereas the adviser responsible for foreign affairs told the press that they will initiate the process and ask their Indian counterpart to return her if the government decides to do so. In the meantime, if she seeks political asylum in India or elsewhere, then the discussion of the extradition of Hasina from India will be pointless. Sheikh Hasina had previously sought and obtained political asylum from India in 1975 after the assassination of her father, Sheikh Mujibar Rahman, the founding president of Bangladesh.

What is Extradition?

EXTRADITION is the legal process between two countries where they sign treaties to hand over a fugitive, accused, or convict to the requesting state for prosecution or punishment for crimes committed in the requesting country’s jurisdiction. Extradition treaties between countries vary from one another; some may enumerate what is an extraditable crime, while some have instances when extradition is to be denied. Authorities generally refuse extraditing individuals for military or political offences, with exceptions for terrorism and other violent acts. Some states do not extradite to jurisdictions with capital punishment or life imprisonment under any circumstances, or unless the requesting country pledges not to impose those penalties.

Can Bangladesh Make an Extradition Request to India?

WITHIN its legal framework, the extradition treaty between Bangladesh and India has scope to ask for Hasina’s extradition; however, there are provisions to deny that appeal under the same treaty. According to the treaty, the requested state shall extradite the fugitives found in its territory who have been proceeded against for, have been charged with, have been found guilty of, or are wanted for the enforcement of a judicially pronounced penalty for committing an extraditable offence (Art. 1(1)).

Only crimes punishing a minimum one-year imprisonment can be extraditable offences, including those relating to financial irregularities (Article 2(1)). In addition, the principle of dual criminality must be satisfied for an offence to be extraditable (Article 1(2)). This means that the offence should be punishable in both countries. According to Article 2(4), extradition shall also be granted in respect of an attempt to commit or aiding, abetting, inciting, or participating as an accomplice in the commission of an extraditable offence.

Article 10(3) makes it even easier for the requesting country, which states that furnishing the proof of crime will not be mandatory; an arrest warrant issued from a court of law will be sufficient for the extradition. Hence, the ‘theoretically’ issuance of a mere arrest warrant by a magistrate court against Sheikh Hasina is enough to ask for her extradition without furnishing concrete proof of evidence against her.

When can India Refuse the Request for Extradition under the Treaty? 

NEVERTHELESS, the treaty itself contains several provisions (Article 6–8), while India can refuse the appeal of extradition of Sheikh Hasina on the grounds of offences having political character, oppressive in nature, or unjust, or if the offence is purely a military offence. Additionally, it can decline if a case that requires extradition to the country to which the extradition request has been made is filed in that country. Albeit no case has been filed against the former Bangladeshi leader until today, nor is there any reasonable possibility of doing so shortly.

What are not political offenses? However, Article 6(2) stipulates the following offences shall not be regarded as offences of a political character: (a) any acts or omissions which are punishable as a criminal offence according to the obligations under multilateral treaties to which both contracting states are parties; (b) murder; (c) manslaughter or culpable homicide; (d) assault occasioning actual bodily harm, or causing injury, maliciously wounding or inflicting grievous bodily harm whether by means of a weapon, a dangerous substance or otherwise; (e) the causing of an explosion likely to endanger life or cause serious damage to property; (f) the making or possession of an explosive substance by a person who intends either himself or through another person to endanger life or cause serious damage to property; (g) the possession of a firearm or ammunition by a person who intends either himself or through another person’s to endanger life; (h) the use of a firearm by a person with intent to resist or prevent the arrest or detention of himself or another person; (i) damaging property, whether used for public utilities or otherwise, with intent to endanger life or with reckless disregard as to whether the life of another would thereby be endangered; (j) kidnapping, abduction, false imprisonment, or unlawful detention, including the taking of a hostage; (k) incitement to murder; (l) any other offence related to terrorism that, at the time of the request, is, under the law of the requested party, not to be regarded as an offence of a political character; (m) an attempt or conspiracy to commit any of the foregoing offences or participation as an accomplice of a person who commits or attempts to commit such an offence.

Interestingly, so far, the allegations brought against Hasina mostly fall under the above categories, which are not political in nature as per the treaty. Despite that, the treaty says denial can be made if the accusation has not been made in good faith in the interests of justice (Article 8 (1)(iii)). Moreover, India can reject the extradition request if it is feared that Hasina may be treated badly or denied justice.

Former social welfare minister Deepu Moni and deputy sports and youth minister Arif Khan Joy were physically assaulted by mobs, whereas former law minister Anisul Huq and industrial advisor Salman F Rahman were humiliated in an overly crowded courtroom, thrown eggs by lawyers linked with the Bangladesh Nationalist Party, and did not get the opportunity to be presented by their lawyer. Former judge of the Appellate Division, AHM Shamsuddin Chowdhury Manik, was attacked while being produced in the court after their arrest recently. Some of their longer remand granted by the court was also criticised by the rights bodies. As a result, anyone can naturally raise concerns about the security of Sheikh Hasina and the fairness of her trial.

Interim Government’s Task in Hand

THE interim government must ensure Hasina’s safety, security, human rights, right to be heard, consultation and representation by a lawyer, fair treatment, impartiality, fair trial, no political motive, etc. convincingly to India while requesting her extradition under the treaty. Otherwise, India can reject the request on these grounds. Besides, many loopholes in the treaty can be invoked by India to delay the process for a long time.

Even the extradition request would go through India’s judicial system, where the courts would assess the validity of the extradition request based on the treaty’s terms and the evidence provided by Bangladesh. This process can be lengthy and involve significant legal debate over the nature of the charges and the applicability of any exceptions. The courts might deny extradition if they believe that the former head of government would face political persecution, unfair trial, or inhumane treatment upon return to their home country. This is particularly relevant if the individual claims asylum or refugee status on these grounds.

Comprehensive and compact record of evidence that substantiates the charges against Hasina, ensuring that the offences are clearly criminal and not merely political. This would strengthen the case against the application of the political offence exception. Strong and solid legal interpretation and arguments are essential to counter the claims that the charges are politically motivated. This might include evidence of a fair and neutral investigation by a credible and impartial body like the UN, maintaining full fairness in each step of the legal proceedings initiated in Bangladesh, robust application of all standards of justice, implementation of all rights of the accused, overseeing the judicial process through reputed international human rights organisations and fulfilling their recommendations, etc. Extradition must comply with international legal standards, including respecting the principle of non-refoulement (not extraditing individuals to a country where they might face torture, inhumane treatment, or persecution).

The political offence exception, judicial intervention, concerns about human rights and fair trial, and the complexity of political and diplomatic relations between India and Bangladesh could all pose significant obstacles to her extradition. The ultimate decision may rest more on diplomatic negotiations and the political will of both governments than purely on legal arguments. Credibly assure the Indian government that Sheikh Hasina will receive a fair trial and humane treatment in Bangladesh. If necessary, offer guarantees and provide them with opportunities to observe the process closely.

Conclusion

WE must not forget that an existing extradition treaty between the two countries only provides a legal framework for mutual cooperation; several other non-legal challenges could arise, particularly regarding the political nature of the charges, human rights considerations, and the potential for unfair treatment. Hence, the treaty itself cannot guarantee extradition in all cases. Especially if the complaint is against an influential person like a former head of the government. Then its political nature, intention, justness, neutrality, etc. become significant indicators. So, political will, mutual trust, friendly relations, effective cooperation, respect for democracy, international norms and rule of law, effective diplomatic negotiations, and respect for people’s aspirations can be the only way to truly solve the problem.

Published in the Daily Bonik Barta (Online) on 26 August 2024.

Published in the New Age on 29 August on page 9.

Published in The Business Standard as Thoughts on 13 September 2024.

Published in the Weekly Sampratik Deshkal on 26 December 2024 on page 10.