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निर्णय नं. १००३९ - परमादेश भाग: ६० साल: २०७५ महिना: असोज  फै सला मिति :२०७४/१२/०७  ७०१७ अंक: ६ सर्वोच्च अदालत, संयुक्त इजलास माननीय न्यायाधीश श्री सपना प्रधान मल्ल माननीय न्यायाधीश श्री पुरूषोत्तम भण्डारी आदेश मिति : २०७४।१२।७ ०७३-WO-११४९ विषयः परमादेश रिट निवेदक : काठमाडौं जिल्ला, काठमाडौं महानगरपालिका वडा नं.३२ स्थित सामाजिक न्यायको लागि कानून तथा नीति नियम मञ्‍चको तर्फ बाट अख्तियार प्राप्‍त ऐ.का कार्यकारी निर्देशक काठमाडौं जिल्ला, काठमाडौं महानगरपालिका वडा नं.३ बस्ने अधिवक्ता प्रेमचन्द्र राई विरूद्ध विपक्षी : नेपाल सरकार, प्रधानमन्त्री तथा मन्त्रिपरिषद् ‌को कार्यालय सिंहदरबार, काठमाडौंसमेत

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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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