Nepal, a country in transition ever since 2007 BS, witnessed the most unanticipated Gen Z uprising that toppled the coalition government overnight. This event shook the very foundation of democracy that Nepal built brick by brick. The advent of new political forces in Nepal’s political arena intensified efforts to implement external voting --by hook or by crook – a move that is likely to shape Nepal’s new political trajectory. In this context, the draft ordinance enabling Non-Resident Nepalis to cast their vote in upcoming House of Representatives election in March 5 has triggered much political debate, yet is seen inevitable given the changing dynamics of global migration.
Understanding external voting
External voting is understood as ‘provisions and procedures which enable some or all electors of a country who are temporarily or permanently outside the country to exercise their voting rights from outside the territory of the country’.
External voting, however, must be differentiated from two other types of voting. The first is ‘the franchise for foreigners in a host country’. For instance, within the European Union, people who are not the citizens of the host country are allowed to vote in certain election at the municipal level. The second is the ‘electoral law that allows citizens who are resident abroad to vote at home after entering their homeland’. This was applied in Italy and nowadays practiced in some new democracies in Eastern Europe such as Albania, Slovakia. Albeit, it must be clear that right of overseas citizens to vote inside the state territory is not the same as external voting.
History in the midst of necessity|
In a landmark decision, almost 150 years ago, on September 25, 1862, the US State of Wisconsin passed its first law to enfranchise its soldiers fighting in the American Civil War enabling external or ‘out-of-country’ voting. Today, considering the changing economic, social and cultural context, many democracies -- both developed and developing -- offer their nationals residing abroad the option of external voting.
In post-conflict societies and countries in transition after authoritarian rule, external voting is being implemented. Where conflict has caused a massive outflow of people, creating a large number of refugees and displaced persons, external voting is designed to facilitate reconciliation and national peace.
Nepal and external voting
Around 141 democracies across the globe today provide some forms of voting rights to citizens living abroad. Despite having a diaspora of over four million citizens, Nepal is one of 55 countries that currently provides no external voting facility. This stands in contrast to the 95 countries that allow it extensively and the 46 others that permit it with limitations.
External voting is not a new phenomenon, nor is Nepal unfamiliar with its practices. Former Chief Election Commissioner Surya Prasad Shrestha, in his book Suryasta Bimba, notes that external voting was facilitated for the National Panchayat 'Snatak Kshetra' Election in 2024 BS. Similarly, former Election Commissioner Ram Bhakta PB Thakur recalls his days in Paris. The Nepali Embassy in France held external voting for its staffers and Nepali students for the 2037 Referendum in Nepal. The cast votes were sent to Nepal via the embassy’s postal service. Hence, in Nepal’s election history, Nepali Embassies, Consulate General, Permanent Missions served as an effective medium for Nepali people to exercise their constitutionally guaranteed right to vote externally.
Legitimacy of external voting
Constitution, electoral laws and administrative regulations are the major legal sources of external voting. Constitution seldom provisions external voting explicitly. Rather it envisage rights of sovereign people to vote within the nation’s territory to define its sovereignty. However, the Constitution of Spain is an exception, with Article 68(5) explicitly providing for and legitimizing external voting. On a practical note, most countries facilitate external voting primarily through their electoral laws, election commissions, administrative directives and guidelines.
External voting: peacetime vs post-conflict
External voting operations are complex and pose both technical and security challenges. Holding external voting in peacetime democracies is considerably different than in transitional situations because it materializes through methodical planning. This includes establishing practical timelines and deadlines, deploying necessary election officers, and designating appropriate offices to facilitate expatriate voting.
In transitional situations, where tight election deadlines mandate assembling all structures and staff from scratch, implementing external voting becomes an inflexible and difficult endeavor. From budget diversion to mitigating political sensitivity, to enabling inclusion of expat and displaced people in the voting process and coordinating with international community external voting can become a fiasco if not catered to with care. It is, therefore, paramount to treat external voting as an emergency operation. Even when deemed an emergency, external voting must adhere to standard election procedures and rules to ensure transparency, accountability, security, and credibility, and these cannot be transgressed.
A skeptical procedure for external voting
There are basically three popular options used in external voting. They are postal voting, voting in diplomatic missions or military bases or other designated places and lastly voting by proxy. Proxy voting is deemed problematic as the proxy may infringe the original voter's intent and can temper with the vote caste on their behalf. Similarly, voting in diplomatic missions can deny the voters their voting right if they fail to travel and be present in the polling stations. Also impartiality and integrity of the officials in diplomatic mission can be questionable.
Contingency in external voting
Who can be registered as an external voter is the primary question in external voting. The kind of institutional arrangement needed for facilitating external voting is contingent on identifying eligible external voters. The possible consideration in the context of Nepal includes:
- Nepali citizens living outside the territory of Nepal either for study, travel, work or migration.
- Legal limitations that determine category of Nepali citizens that can be registered as external voters.
- Specified minimum number of citizens to be registered with Nepali diplomatic missions in the foreign country to qualify for external voting.
Assigning external votes to electoral constituency
How to assign external vote to domestic electoral constituency? Translating external votes into House of Representatives (HoR) seats is cardinal in external voting as it directly influences Nepal’s internal politics. Two options are popularly endorsed.
- Extraterritorial electoral constituency for external voters.
- Assigning external votes to existing electoral constituency inside the country.
Portugal is the classic example of first option where at least two parliamentary seats are reserved for citizens living abroad: one seat for European countries and the other seat for the rest. The second option stresses on relation of external voters to domestic territory. Russia, for example, assigns external voters electoral constituency based on their former place of residence. Then certain quota is reserved for the external voters in their domestic constituency. This reduces the possibility of internal elections being influenced by external factors.
So, considering Nepali diaspora abroad, they can be either clustered into one extraterritorial unit and total electoral seats to total votes caste could be determined by the Government of Nepal or external voters could be given certain quotas within Nepal’s election constituency based on their former place of residency.
Challenges in external voting
Electronic voting is hailed as an effective alternative to conducting external voting. Nevertheless, Artificial Intelligence’s advent and multifarious interest groups engaged in cyber attacks, the veracity of external voting results can be questionable unless the veracity of external voting is reinforced through adequate safety measures that ensure credibility and transparency.
External voting requires skilled resources, apt administration, impactful structural designing, political and representation consideration along with efficient implementation strategies. Given Nepal’s volatile political dynamics – marked by deflated economic growth, increased unemployment and delicate social buoyancy -- the caretaker government faces a significant challenge in managing in managing an unrestrained internal election buildup while also responding to the growing demand for external voting.
Given that the First Past the Post (FPTP) system is candidate-centric, with Nepal divided into 165 constituencies, the question of whether to limit external voting to Proportional Representation (PR) or extend it to FPTP remains an unresolved issue.
Conclusion
Post the Gen Z uprising, it has not taken Nepali people long to jump on the bandwagon. While external voting is deemed as a need of the hour, in paucity of tactful preparation and security measures, the sensitivity of ‘the only sovereign right of Nepali people’ to vote can be maligned, posing a serious threat to Nepal's sovereignty
(Ms Shruti Kharel is a Section Officer at the Supreme Court of Nepal.)
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