The time is now: Operationalise absentee voting

In the aftermath of September protests, one of the primary mandates of today’s interim government is to hold timely elections, with the Election Commission Nepal (ECN) already announcing the election calendar. A long-standing demand that is now gaining renewed momentum is absentee voting rights for migrants, both domestic and abroad. The government and the ECN has a historic opportunity to overturn a major leaf in the country’s nascent democratic history. Progressive implementation on absentee voting rights for the upcoming elections will go a long way in addressing public grievances and restoring national confidence.

Previously, despite multiple efforts, lack of political will impeded absentee voting rights. The traditional political parties and power structures within, with their waning influence at the moment, may not be able to derail the process this time around.

Meanwhile, the ECN and the government have comprehensive bases to take the necessary steps and operationalise absentee voting for the upcoming elections. Together they can build on some of the previous judicial and policy decisions, institutional studies and legal frameworks while taking necessary steps such as issuing directives and ordinances to unlock operational hurdles. 

Implement 2018 Supreme Court directive

In 2018, in response to a  public interest litigation (PIL), the SC directed the government to make all necessary arrangements to ensure the voting rights of Nepalis living abroad, provided they have not renounced their Nepali citizenship, have not acquired foreign citizenship, possess a voter identity card, and are listed in records maintained by Nepal’s diplomatic missions.

Leverage authority granted By Election Commission Act, 2073

The act serves as the principal legislation governing the structure, powers, and functions of the ECN. While the Act does not explicitly define or detail provisions for absentee or remote voting, it grants the commission significant discretionary powers to ensure inclusive electoral participation, including the following:

• Seek assistance from all tiers of government and organisation owned or controlled by them, including diplomatic missions abroad
• Appoint or designate any government employee in any act of election (Section 19).
• Use new technology to manage elections (Section 34), further specified in House of Representatives Election By-Law (Section 30).

Conduct staggered elections if needed

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The House of Representative Election Act 2074 allows the ECN to conduct elections in a staggered manner if not possible within a single phase (Chapter 3, Section 6). This provides legal authority to conduct absentee voting on different dates than the primary election dates—allowing the ECN necessary time and voting window to operationalise external voting mechanisms.

Use the existing studies

Over the past 15 years, the ECN has conducted multiple feasibility studies, policy analyses, legal assessments, and field missions to evaluate external voting, but largely remained in paper.

- Ahead of the first Constituent Assembly elections, the ECN conducted its first feasibility study on voter registration for Nepalis living abroad, particularly in Gulf countries.

- ECN's first Strategic Plan for the year 2009–2013 formally included a goal to explore external voting mechanisms as a priority.

- ECN dispatched high-level field missions to the middle east in 2012 to study registration processes for migrant workers. The aim was to assess on-the-ground feasibility of registering voters and collecting ballots abroad.

- ECN conducted a comparative assessment of Thailand’s early and absentee voting systems, alongside other international models. These assessments fed into internal ECN policy planning and concept notes on absentee voting.

- A working group submitted an out-of-country technical report to formalise study efforts, which recommended diaspora voter registration and broad consultations with political parties and civil society. A technical feasibility report focused on the Gulf region outlined legal, logistical, and technological prerequisites for overseas voting.

Issue an ordinance on the draft consolidated election law

Introduced in the first half of 2023, past governments were sluggish at reviewing a consolidated “Bill to Amend and Consolidate the Election Law”. The commission says the bill incorporates provisions for absentee voting based on Nepal’s constitution, SC directives and past experiences and aims to consolidate seven different existing laws.

The interim government should finalise discussions and issue it as an ordinance, allowing the ECN to collect data on overseas voters and facilitate their participation under the proportional representation (PR) system via Nepal’s diplomatic missions in the respective countries as proposed. Reportedly, it also proposes that diverse voting platforms can be offered after evaluating its feasibility in the host country.

Update and enact the draft procedure for voter registration abroad

The EC currently has a draft procedural guideline which provides a structured framework for the registration and updating of voter records for abroad-based citizens. This document offers a concrete legal and administrative foundation to initiate external voter registration. The EC must activate and institutionalise this procedure, using it as the first step toward building a complete diaspora electoral roll.

However, the draft lacks clear provisions on how registered voters abroad will actually vote. It should be amended, including its title, to ensure Nepalis overseas can fully exercise their constitutional right.

The current draft provision - under 2(Jha) - defines “Nepali citizens residing abroad” as those who have obtained Nepali citizenship and are living abroad for employment or other purposes, but have not obtained foreign citizenship or permanent residency.

This definition excludes Nepalis who live abroad as residents, for example, various forms of residency permit holders who have not renounced their citizenship. These individuals remain Nepali citizens under the Constitution and retain their right to vote. To uphold this principle, the draft provision should be amended to explicitly exclude only foreign citizenship holders—not those with residency abroad. 

Recognise temporary/seasonal migrants as protected category of voters

Nepal has a large population of internal migrants as well, including seasonal workers, students, security personnel, who are routinely disenfranchised due to rigid constituency-based voting rules that require them to return to their registered voting districts on election day. Section 30 of Act to Amend and Consolidate Laws Related to the Electoral Roll, 2017 currently permits the ECN to set up special polling stations for “provisional voters” (e.g. election staff, security forces, prisoners, and residents of government-run senior homes), allowing them to vote early, but only for proportional representation, not first-past-the-post (FPTF) candidates. Yet polling staff and security personnel deployed in districts away from their home couldn’t vote in the 2017 elections. Following a Supreme Court order, the ECN however set up 141 polling centres for the 2022 elections.

Like in the case of ‘provisional voters’, the law allows the commission to designate temporary migrants (students, private sector employees and others) as provisional voters under the ‘other people as stipulated by the commission’ sub-clause under Section 30 (2) (cha). To secure their right to vote, the ECN can act upon this sub-clause to open pathways for temporary migrants to be recognised as ‘provisional voters’. 

If needed, the law should be amended to clearly include them as a protected voter category. While enabling FPTP voting rights for provisional voters and other migrant groups entails a different set of logistical challenges, ensuring their participation in proportional representation should be the minimum standard, especially since the entire country is treated as one constituency under that system.

Form a dedicated statuary unit within the ECN

Supporting and sustaining an absentee voting mechanism requires considerable planning and complex operational decision-making. That’s why ECN must form a statutory dedicated unit within the commission solely focused on centralising and advancing all work related to absentee voting. Key functions would include budgeting, collecting data on mapping absent voters, and serving as the lead agency in engaging with host countries to facilitate external voting arrangements. Necessary additions to the commission act and/or creation of a by-law should envision and define this body.

Ultimately, this is a pivotal moment. Together with the government, the ECN must exercise constitutional mandates and leverage existing legal rights to ensure that millions of Nepalis, whose blood and sweat has equally sustained the country but voices muffled, have a direct say in defining the nation’s democratic trajectory.