Author: Ashlesha Joshi
There is a popular thesis that lies at the core of the intersection between democracy and franchise–every vote counts. Its essence is that each citizen can influence the election outcome and its impact on their lives by voting. In modern democracies, voting is frequently the single significant right that creates a citizen. Political rights have also been guaranteed to be enjoyed by all citizens on a nominally equal basis, though this has always been and continues to be an overstatement for Nepal, where millions of citizens remain disenfranchised.
Although Nepal has been sending migrants as students and workers abroad and receives remittances legally, they are barred from taking part in the country’s elections. In 2018, the Supreme Court granted a mandate to the government to facilitate ‘out of country’ voting for the Nepali diaspora around the world, however, limited actions have been directed toward facilitating this directive. As a result, millions of Nepalis have no voice over who is elected, and thus no control over the policies and laws that will govern them.
Political Franchise as an Essential Right
Modern democracies are unthinkable without universal suffrage, and international law recognizes its guarantees in the Universal Declaration of Human Rights, which recognizes an individual’s right to freely participate in the government of his or her country, either directly or through freely elected representatives and Article 25 of the International Covenant on Civil and Political Rights.
The right to political franchise stems from a long history of removal of any impediments in the process of a citizen’s right to vote in their country. The right to vote is what enables all citizens to be involved in the governance of their state, as it is central to the general political freedom that allows citizens to participate fully in the government of their countries, primarily by electing their representatives who govern to serve and protect the interests of the people. Thus, the condition that one must be a resident of the country in order to vote runs counter to the fundamental right to vote.
Importance of Migrants’ Votes
There are numerous examples of close elections such as the November 2000 US elections when the Democratic candidate Al Gore conceded the elections to his Republican rival George W. Bush by the smallest of margins, a mere 537 votes, emphasizing the individual’s importance. How much of a difference can the votes of over 7 million Nepalis achieve if it was just 537 votes that determined the president of the United States?
Elections held without the involvement of a significant segment of the population are a violation of those constituents’ rights. The outcomes of such elections convey a distorted sense of the citizenry’s voice and cannot be deemed inclusive. The importance of migrants’ votes rests upon the fact that millions of them are living and working in horrible conditions in foreign countries. Their problems are largely ignored and their interests are unrepresented. However, if given the opportunity to vote, political parties may begin discussing them and defending their rights in order to gain their votes because interests in self-government can transcend both territorial location and citizenship status.
The History and Politics of External Voting
The first documented usage of external voting occurred in 1862 when Wisconsin became the first of several US states to implement laws allowing troops fighting in the Union army during the Civil War to vote absentee. Outside of the military, New Zealand allowed absentee voting for mariners in 1890, and Australia adopted it in 1902. Citizens of other countries were not allowed the right to vote until the 1980s in the Federal Republic of Germany (FRG) and the United Kingdom (UK) or in the 1990s in other long-established democracies (Japan).
Subsequently, external voting laws, like many other components of electoral administrative heritage, frequently flowed from colonial statute to newly independent state legislation with Malaysia, newly independent early-French colonies, Indonesia and even India promulgated external-voting-friendly laws. Whether migrant laborers wish to maintain ties with their homeland, members of long-term diaspora communities opposing a current or former regime, or expatriates remitting funds to families, expatriates often seek involvement in their nation of origin. Such groups have been found to have an influence in campaigning for the implementation of external voting, as is the case for Nepal.
External votes were only given to persons who served their country’s interests from afar, such as diplomats, sailors, and military personnel, at the turn of the twentieth century. It wasn’t until the last two decades that a growing number of states gave their emigrant populations the right to vote, to the point that these states currently make up the majority.
In today’s world, over 150 countries have a legal framework for out-of-country voting. This includes many countries that are just as, or even more, constrained and capacity-challenged as Nepal, so the inertia concerning actions directed toward affirming Nepali migrants’ right to vote is unjustifiable. Even in South Asia, Bhutan, the Maldives, Pakistan and Afghanistan allow their citizens to vote from abroad whereas India and Bangladesh accept voter registration from abroad even if citizens have to visit the country for the poll.
The Case of Advocate Prem Chandra Rai v Government of Nepal
“Should nationals who are overseas working for foreign employers be permitted to cast ballots during elections from locations outside of Nepal?” was the focal question before the court in this landmark case.
According to the Court,
“Elections are a way of expressing the views of the people and a democratic government is characterized by acting in conformity with the wishes of the people. Because citizens express their opinions on fundamental issues like who should be elected and what laws and policies should be created in a democracy, the right to vote for citizens should be interdependent with the freedom of thought and expression.”
Citing Article 21(3) of the UDHR, the Court elaborated on how the foundation of government authority is the people’s expressed will as expressed through elections. Similarly, references were made to Article 19 of the ICCPR’s clarification on freedom of speech and expression, and Article 25 of the Covenant which discusses a citizen’s right to participate in matters of public interest either directly or through a freely elected representative by exercising an adult franchise.
Recent Strides in Ensuring Migrants’ Franchise: Implications of the Draft Election Bill
On 3 July 2023, as the Election Commission registered the “Bill to Amend and Consolidate the Election Law” at the Parliament through the Ministry of Home Affairs, it proposed a number of amendments to the election laws.
The Commission has recommended 27 various amendments in the new integrated law that will be presented to the parliament, which Commission officials hope would eliminate the uncertainty that impacted the previous elections and bring some modern practices in line with public expectations, one of them being Nepali migrants’ right to vote.
Under the proposed law, Nepali diplomatic missions will have to facilitate voting for citizens residing abroad, ensuring their participation in in the elections held according to the proportional election system of the House of Representatives. To uphold security and efficiency, the Commission will oversee the processes for ballot collection and counting. Additionally, the Commission has hinted that a secure online voting method could be introduced if the system guarantees voter privacy, signalling a modernised electoral law.
Conclusion
The current governing framework for Nepali migrants’ right to vote lacks the necessary provisions to protect their migrant, human, and labour rights, leaving them vulnerable to political exclusion and devoid of access to justice. Nonetheless, with progressive amendments in the new integrated law, there is hope on the horizon as these amendments are aimed at eliminating the uncertainty that plagued previous elections and aligning the election practices with public expectations, including addressing the issue of Nepali migrants’ right to vote. If implemented effectively, this change in the law might finally guarantee migrants their rightful voting rights.
However, despite the promise of these amendments, the bill remains stalled, with no significant updates or clarity on its progress. As Nepal continues to send its citizens abroad for education and work, and legally receives remittances, it is paradoxical and unjust to deny them the right to participate in the elections of their own country. The lack of decisive action risks further delaying a resolution to this long-standing issue. Without prompt and focused efforts from the government and policymakers, the momentum for granting voting rights to migrants could be lost.
Ashlesha is a constitutional law student at Kathmandu School of Law.