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Machine Translated by Google Due to the shortage, a large population is abroad for foreign employment. This is our social reality. According to the Labor Migration for Employment Status Report, 2015/17 published by the Ministry of Labour, Employment and Social Security, from 2008/09 to 2016/17, the Ministry has granted 35,09,633 labor permits. All the citizens who have gone in this way are people who have reached the age of 18 and have the right to vote according to the constitution. Even if the figures mentioned by the petitioner in the petition are taken as a basis, it seems that 20 percent of the total number of voters are migrating due to foreign employment. In this way, when the Nepali citizens who are migrating for foreign employment are deprived of the election process, a large part of the population will be deprived of their constitutional rights such as the right to vote. Going abroad for foreign employment is a product of necessity and compulsion to a greater extent than the desire or desire of the citizens, but the fact that remittances sent by citizens abroad for foreign employment have contributed significantly to the country's economy cannot be underestimated. In this way, the state will benefit from the contribution made by the remittances of citizens outside the country to the economy, but depriving those citizens of the right to vote because they are outside the country does not seem to be appropriate even from the point of view of justice. Due to the fact that the economy of the state has not been able to create employment opportunities, there is a risk that the citizens who have migrated to foreign countries due to employment reasons may also be deprived of the right to vote. On the one hand, elections conducted by keeping a large part of the country's population aside violates the voting rights of those citizens, while on the other hand, the results of such elections cannot fully reflect the real wishes and feelings of the citizens. In this way, depriving the citizens who are employed abroad of the right to vote, it seems that the fairness and sanctity of the election itself may be questioned. There can be no dispute about the fact that the elections conducted by the state should be clean and fair, but the elections conducted by alienating a large part of the population from the opportunity to cast their votes cannot be considered as fully approved by the people. In this regard the Supreme Court of India in PUCL and ANR Vs. Union of India and ANR

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Advocate Prem Chandra Rai vs Government of Nepal

Judgment

Question Presented: Whether Nepali citizens residing abroad should be given the opportunity to vote from the country in which they currently reside. Whether restricted voting rights on Nepali citizens living abroad violates the constitutional right to vote.

Alleged Acts: The plaintiff alleges that the Government of Nepal is violating the Constitution, which provides equal rights to all citizens to vote in all levels of elections, by depriving Nepali citizens who live abroad of their right to vote.

Procedural history: The plaintiff filed a writ petition with the Supreme Court to issue a directive order to the Election Commission and government to make necessary arrangements that would allow Nepali citizens living abroad to vote out of country in elections at all levels (local legislature, province legislature, and House of Representatives).

Summary: The plaintiff argues that all Nepali citizens, whether living in Nepal or residing abroad, have the constitutional right to vote in Nepali elections in accordance with of the Constitution of Nepal. More than 3.5 million Nepali citizens who have migrated for foreign employment, study, and other reasons have been barred from voting in Nepali elections. Furthermore, elections that exclude a large part of the country's population violate the voting rights of the excluded citizens, and the results of such elections cannot fully reflect the wishes of the entire population. The Court held that citizens have the right to participate in the governance of their state by exercising the right to vote. The right to vote is explicitly protected by the Nepali Constitution, in the Preamble and Articles 84(5), 176(5) and 225(5). Additionally, various international laws and principles protect the right to vote, including Articles 19 and 21(3) of the Universal Declaration of Human Rights (1948); Articles 19(2) and 25 of the International Covenant on Civil and Political Rights (1966); the United Nations Human Rights Committee Comment No. 25; and Article 41 of the Convention on the Protection of Migrant Workers (1990). By depriving citizens who live abroad of the right to vote, the Election Commission and government violates those citizens’ constitutional rights; if citizens technically have the right to vote but practically do not have the opportunity to vote, the right to vote is meaningless and the will of the people is not accurately reflected in the election results. Furthermore, the Constitution does not limit the right to vote to citizens living or residing on Nepali land; thus, it is the responsibility of the State to provide any citizen who wishes to vote with the opportunity to vote, devoid of discrimination. The State benefits from many of these citizens’ contributions to the economy (via remittances sent to Nepal from abroad) and depriving these citizens of their right to vote is inappropriate and unjust. The Court acknowledged that administering voting procedures for citizens living abroad can prove challenging and that it has taken potential issues seriously before issuing the directive order. The Court ordered respondents to identify the best method of external/out of country voting that could prove successful among the four methods: setting up polling stations in the embassy or consular office of the relevant country; providing postal voting opportunities; allowing for proxy voting; and electronic voting. Many other countries have implemented such methods successfully and the Court mandates the Government and Election Commission of Nepal to make necessary arrangements for allowing out of country voters to vote in Nepal elections by identifying the best method that would contribute to free, fair and transparent election. The Court’s decision included the following arguments: 1) all citizens living abroad, for whatever purpose, should be allowed to participate in Nepali elections; 2) those persons who have not renounced their Nepali citizenship, are at least 18 years old, have a voter ID card, and are living abroad “according to the diplomatic agency” are eligible to vote; 3) the Election Commission should investigate all possible options for external/out of country voting that will remain cost-effective and implementable while giving the largest number of citizens the opportunity to vote; 4) the Election Commission should consider the laws of different countries, which may differ in allowing foreign citizens to vote within those countries’ borders; 5) the Government of Nepal must immediately present a bill to Parliament to create the necessary law regarding external/out of country voting rights; and 6) the Election Commission should start the voting registration process immediately.

Conclusion: The court issued a directive order in the name of respondents—the Government and the Election Commission—to make necessary arrangements such as formulating laws and regulations, entering into diplomatic dialogue and determining the best infrastructures/methods that will allow the citizens residing abroad to vote from the countries in which they reside.

Legal Issue(s)

Accessibility
Elections as a Fundamental Right
Out of Country Voting

Applicable Law(s): Constitution of Nepal, 2015; Electoral Rolls Act, 2017; Foreign Employment Act, 2007; International Covenant on Civil and Political Rights, 1966

Region: Asia-Pacific

Country: Nepal

Language of Decision

Nepali

Court: Supreme Court

Election Type: General

Date of decision: Mar 21, 2018

Geolocation

Latitude: 28.281808289610108

Longitude: 83.94565003159187

: Geolocation

Primary Documents

Advocate Prem Chandra Rai vs Government of Nepal (English).pdf
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Advocate Prem Chandra Rai vs Government of Nepal (Nepali).pdf
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Election Judgments - IFES

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Advocate Prem Chandra Rai vs Government of Nepal

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