Judicial Independence, Statements by International Human Rights Organizations, and Nepal's Sovereignty: In Search of a Constitutional Balance Dr. Khimlal Devkota Senior Advocate, Member of the Constituent Assembly of Nepal

 Judicial Independence, Statements by International Human Rights Organizations, and Nepal's Sovereignty: In Search of a Constitutional Balance

Dr. Khimlal Devkota

Senior Advocate, Member of the Constituent Assembly of Nepal

 Part I: Background

24 July 2026, Amnesty International, Human Rights Watch, and the International Commission of Jurists (ICJ) jointly issued a public statement expressing concern over what they described as credible reports that the three most senior Justices of the Supreme Court of Nepal—Justice Sapana Pradhan Malla, Justice Kumar Regmi, and Justice Hari Prasad Phuyal—had allegedly been pressured to resign or face impeachment. The organizations urged the Government of Nepal to refrain from any such action, arguing that recent governmental conduct appeared to substantiate these concerns. Their statement also referred to issues including the alleged disregard of judicial seniority in the appointment of the Chief Justice and the promulgation of an Ordinance concerning the Constitutional Council.

These developments raise important constitutional questions that extend beyond the immediate controversy. On the one hand, they concern the appropriate role of international human rights organizations in safeguarding judicial independence. On the other, they invite reflection on the constitutional limits of external engagement with Nepal's sovereign institutions, including Parliament's legislative authority and the constitutional autonomy of the State. Determining the proper balance between these competing considerations has become a matter of considerable constitutional significance.

Against this backdrop, the House of Representatives Committee on Law, Justice and Human Rights convened deliberations on the matter. Having been invited to participate in those discussions as an expert, I consider it appropriate to present my views in the form of this article.

 

It is beyond dispute that international human rights organizations have made significant contributions to Nepal's democratic movement and to the protection of human rights throughout the country's modern political history. Their advocacy during periods of political transition and armed conflict deserves due recognition and appreciation. Nevertheless, it must also be acknowledged that not all of their reports and public statements have been equally well-founded. On certain occasions, some assessments have rested on questionable factual premises or have contributed to public misunderstanding of complex constitutional and political realities.

 

For example, while these organizations played an important role in documenting human rights violations during Nepal's armed conflict, some of their later interventions have generated legitimate controversy. Public statements that appeared to misrepresent historical or political realities, or that opposed legislation on transitional justice adopted through broad national political consensus, illustrate that international organizations are not immune from factual or analytical error. Recognition of their valuable contributions should therefore not preclude critical scrutiny of the accuracy and evidentiary basis of their public interventions.

 The current controversy must therefore be understood within this broader historical and constitutional context. The decision of the parliamentary committee to examine the matter is both timely and institutionally appropriate. As Nepal continues to consolidate its democratic constitutional order, questions concerning the relationship between judicial independence, the protection of human rights, and national sovereignty inevitably arise. Allegations that the Executive has sought to exert improper influence over the Judiciary, public statements issued by international human rights organizations concerning such allegations, and the corresponding response of the State together present issues of exceptional constitutional sensitivity. Such matters should not be approached through political rhetoric or emotional reaction; rather, they require careful analysis grounded in constitutional law, legal principle, and internationally accepted standards.

 

The Constitution of Nepal envisions the Judiciary as an independent, impartial, and competent institution of the State. Judicial independence, together with the separation of powers and the rule of law, constitutes one of the fundamental pillars of democratic constitutional governance. Accordingly, where credible allegations arise that judges have been subjected to improper pressure, intimidation, or influence by the Executive, those allegations must be investigated through an independent, impartial, and credible process. Judicial independence is not merely a privilege enjoyed by judges; rather, it is the institutional guarantee through which every citizen's constitutional right to a fair and impartial hearing is protected.

 

Equally important, however, is the principle that serious allegations should not be advanced publicly without adequate factual support, reliable evidence, and impartial investigation. Unsubstantiated accusations have the potential to undermine public confidence in the Judiciary, and public trust remains one of the essential foundations upon which democratic constitutional government rests. Freedom to make allegations must therefore be accompanied by the responsibility to substantiate them. Under the rule of law, allegations do not constitute legal truth; rather, truth emerges through due process, objective investigation, and evidentiary assessment.

 

International law similarly recognizes the necessity of maintaining this constitutional balance. The United Nations Basic Principles on the Independence of the Judiciary require that judges be protected from external pressure, intimidation, interference, and improper influence. Likewise, the Bangalore Principles of Judicial Conduct identify judicial independence, impartiality, integrity, and institutional credibility as indispensable foundations of democratic governance. Furthermore, Article 14 of the International Covenant on Civil and Political Rights (ICCPR) guarantees every individual the right to a fair and public hearing before an independent and impartial tribunal established by law. These international instruments collectively demonstrate that judicial independence is not merely a domestic constitutional principle but a universally recognized requirement of the rule of law.

 

Part II: International Human Rights Organizations, National Sovereignty, and Comparative Constitutional Practice

 

International human rights organizations play an indispensable role within democratic societies. Their principal functions include monitoring alleged human rights violations, documenting and disseminating factual information, drawing governmental attention to matters of concern, and advocating on behalf of victims whose rights may have been infringed. In many parts of the world, such organizations have significantly contributed to strengthening democratic accountability, promoting transparency, and encouraging governments to comply with their international human rights obligations. Their work has frequently served as an important safeguard against the abuse of state power and has provided an independent voice where domestic accountability mechanisms have proven inadequate.

 

However, the legitimacy and credibility of these organizations are themselves founded upon universally accepted principles of fairness and objectivity. Their conclusions should be based upon verifiable facts, credible evidence, impartial investigation, and procedures that provide all relevant parties with a reasonable opportunity to present their respective positions. Institutional credibility is not derived from reputation alone, nor from prior contributions to the advancement of human rights. Rather, it is sustained through rigorous adherence to professional standards of fact-finding, methodological transparency, procedural fairness, and evidence-based reasoning. The moral authority of international human rights organizations ultimately depends upon their continuing commitment to these principles.

 

The present debate also raises an equally significant constitutional issue: the scope and meaning of Nepal's national sovereignty. Under the Constitution of Nepal, sovereignty is vested in the Nepali people and exercised through the constitutional institutions established by the Constitution. International organizations, including international non-governmental organizations, undoubtedly possess the right to express concern, offer recommendations, and critically evaluate governmental conduct. Nevertheless, they do not possess constitutional authority to exercise the powers vested in Nepal's constitutional organs or to substitute their own judgment for decisions that belong, under the Constitution, to Nepal's democratic institutions. Consequently, neither unconditional acceptance nor automatic rejection of international criticism represents a constitutionally appropriate response. Rather, such interventions should be evaluated objectively based on evidence, constitutional principles, and due legal process.

 

Comparative constitutional experience demonstrates that democratic states have frequently confronted similar tensions between judicial independence, public accountability, and external criticism. In India, for example, debates concerning the National Judicial Appointments Commission (NJAC) and the Collegium system prompted sustained advocacy by civil society organizations and human rights groups in favour of greater transparency. Yet the ultimate constitutional resolution emerged through judicial and constitutional processes rather than through external political pressure. The Indian experience illustrates that while civil society participation enriches constitutional discourse, final constitutional authority remains vested in institutions established under the Constitution.

 

A comparable institutional approach has been observed in the United Kingdom. Parliamentary scrutiny of issues relating to public criticism of the judiciary has consistently emphasized the protection of judicial independence as a fundamental constitutional value. Parliamentary committees have acknowledged that public debate regarding judicial decisions is both legitimate and necessary within a democratic society; however, they have simultaneously underscored that such criticism must not compromise either the institutional independence of the judiciary or public confidence in the administration of justice.

 

Similarly, in Canada, proposals concerning judicial reform have been subjected to extensive parliamentary examination through public hearings involving representatives of civil society, legal professional organizations, universities, and constitutional scholars. This consultative approach reflects the understanding that constitutional reform should be informed by broad-based public participation while remaining firmly anchored within established democratic institutions.

 

South Africa provides another instructive example. Complaints concerning members of the judiciary have generally been addressed through constitutionally prescribed procedures that ensure both procedural fairness and impartial adjudication. Rather than permitting political institutions or external actors to determine judicial accountability directly, South Africa has developed institutional mechanisms designed to preserve both judicial independence and public confidence in judicial integrity.

 

Likewise, in Australia, contemporary debates regarding judicial independence have generally been approached as questions of institutional reform rather than partisan political controversy. Discussions have focused on strengthening constitutional safeguards, improving institutional accountability, and enhancing public confidence without undermining the constitutional separation of powers.

 

These comparative experiences reveal a common constitutional principle. Parliamentary committees in democratic systems do not ordinarily seek to suppress criticism or punish non-governmental organizations for expressing concern. Instead, they function as institutional forums for fact-finding, public consultation, policy evaluation, and legislative oversight. From this comparative perspective, the decision of Nepal's Parliamentary Committee on Law, Justice and Human Rights to deliberate upon the present controversy falls squarely within its constitutional mandate and represents an appropriate exercise of parliamentary oversight.

 

International constitutional practice therefore conveys a consistent message. Democratic societies simultaneously protect judicial independence and freedom of expression. Neither value is absolute. The exercise of freedom of expression carries corresponding responsibilities, particularly where allegations concern constitutional institutions whose legitimacy depends upon public confidence. Serious allegations should therefore be supported by credible evidence; investigations should be conducted independently and impartially; and conclusions should emerge through legally established procedures rather than through political advocacy or public pressure alone.

 

Against this background, Nepal's response to the recent joint statement issued by the three international organizations should be institutional rather than emotional. Where allegations of interference with judicial independence are advanced, the State should formally request the factual basis and evidentiary support upon which those allegations rest. If the allegations appear sufficiently serious, an independent and impartial investigation should be initiated. Upon completion of such an investigation, the competent authorities should publicly and transparently communicate their findings. If the allegations are not substantiated, the organizations concerned should be requested to correct the factual record or provide appropriate clarification. Conversely, if the allegations are confirmed, all responsible individuals—irrespective of their office or status—should be held accountable in accordance with the Constitution and the law. Such an approach simultaneously safeguards judicial independence, upholds Nepal's commitment to international human rights norms, and reinforces respect for national sovereignty under the Constitution.

 

Part III: Constitutional Balance, Institutional Accountability, and the Way Forward

 

The institutional response of the Parliamentary Committee on Law, Justice and Human Rights assumes particular constitutional significance in this context. Across mature constitutional democracies, parliamentary committees do not ordinarily function as punitive bodies against civil society organizations or international non-governmental organizations. Rather, they serve as institutional mechanisms for gathering evidence, conducting public hearings, reviewing public policy, and recommending legislative or institutional reforms where necessary. Their constitutional responsibility is not to interfere with ongoing judicial proceedings but to strengthen institutional accountability, reinforce judicial independence, and promote adherence to the rule of law. The present initiative undertaken by the Committee should therefore be viewed within this broader constitutional framework of parliamentary oversight and democratic accountability.

 

Ultimately, the strength of a constitutional democracy lies not in institutional confrontation but in maintaining an appropriate constitutional equilibrium among the organs of the State. Safeguarding the Judiciary from political pressure remains a fundamental responsibility of the State. Equally, international human rights organizations bear a corresponding responsibility to preserve their own institutional credibility by ensuring that their public assessments are grounded in verified facts, objective evidence, and sound legal analysis. Nepal's sovereignty, judicial independence, and commitment to international human rights norms are not mutually exclusive constitutional values. Properly understood, they are complementary principles capable of reinforcing one another through adherence to constitutional procedures, due process, and institutional restraint. This constitutional equilibrium is, indeed, one of the defining characteristics of a mature democratic order.

 

Within the Nepalese constitutional context, however, several structural realities deserve candid reflection. Concerns have repeatedly been expressed by distinguished members of Nepal's legal community regarding the Judiciary's institutional approach to federalism. It has been argued that sections of the Judiciary were resistant to the constitutional vision of a federal judicial structure and that the Constituent Assembly's original intention to establish a separate Constitutional Court ultimately gave way to the present Constitutional Bench owing to judicial opposition. As a consequence, some commentators contend that the Judiciary has not always been able to play the robust and constructive role expected of it in facilitating the implementation of the Constitution and Nepal's federal system. Whether one agrees entirely with these assessments or not, such concerns have become part of Nepal's ongoing constitutional discourse and merit serious institutional consideration.

 

Similarly, questions have periodically been raised regarding the relationship between certain judicial institutions and non-governmental organizations. Such concerns, together with recommendations for judicial reform, have also been acknowledged in reports prepared by the Supreme Court itself. These observations provide an important contextual background against which the recent statement issued by international non-governmental organizations should be evaluated. The issue is therefore broader than the immediate interests of particular judges. It also concerns the constitutional implications of external commentary that may be perceived as questioning legislative authority and constitutional processes—such as the promulgation of ordinances—thereby touching upon matters closely connected with Nepal's constitutional sovereignty. These broader constitutional implications deserve careful and objective examination.

 

A constitutional democracy requires all actors—State institutions, the Judiciary, Parliament, civil society organizations, and international organizations alike—to recognize and respect the limits of their respective constitutional mandates. Observance of institutional boundaries is neither a sign of institutional weakness nor of democratic restraint; rather, it is an indispensable condition for constitutional governance itself. Where those boundaries are alleged to have been transgressed, the appropriate response is not political confrontation or rhetorical escalation but independent investigation, objective assessment, and lawful adjudication. Accountability must operate equally for all, irrespective of institutional affiliation or political status.

 

The persistence of impunity has long represented one of Nepal's most significant constitutional and governance challenges. Yet impunity cannot be understood selectively—as a principle applicable only to others while exempting one's own institution or constituency. A constitutional order founded upon equality before the law demands that every individual and every institution remain equally subject to legal scrutiny and constitutional accountability. Only by consistently applying these principles can Nepal strengthen public confidence in its democratic institutions and reinforce the rule of law.

 

The present controversy therefore calls not for institutional confrontation but for constitutional statesmanship. A measured, transparent, and evidence-based inquiry offers the most appropriate means of resolving competing claims while preserving public confidence in both the Judiciary and the democratic constitutional order. In my considered view, the Parliamentary Committee on Law, Justice and Human Rights is well placed to facilitate such a process by ensuring that the matter is examined objectively, transparently, and in accordance with constitutional principles. Through institutional dialogue rather than political polarization, Parliament can contribute to reinforcing judicial independence, strengthening democratic accountability, and safeguarding Nepal's constitutional sovereignty.

 

Conclusion

 

The recent intervention by Amnesty International, Human Rights Watch, and the International Commission of Jurists presents an important opportunity for constitutional reflection rather than political confrontation. Democratic constitutionalism demands simultaneous respect for judicial independence, the legitimate role of international human rights advocacy, and the sovereign authority of constitutional institutions. None of these constitutional values should be pursued at the expense of the others.

 

A mature constitutional democracy is distinguished not by the absence of disagreement but by its capacity to resolve institutional disputes through constitutional procedures, impartial investigation, and respect for the rule of law. Nepal's constitutional future will ultimately depend upon its ability to preserve this delicate equilibrium. By ensuring that allegations are investigated independently, evidence is evaluated objectively, constitutional institutions operate within their respective mandates, and all actors remain accountable under the law, Nepal can strengthen both its democratic legitimacy and its commitment to universal human rights while fully preserving its constitutional sovereignty.

कार्यक्रम आर्काइभ

कार्यक्रम आर्काइभ

सरकारका १०० दिन : आशाको उज्यालोमा आशंकाका बादल पनि

लोकतन्त्रमा कुनै पनि सरकारको सफलता विपक्षीले गर्ने प्रशंसाले होइन, जनताले गर्ने विश्वासले मापन हुन्छ। त्यो विश्वास भाषणबाट होइन, जनताको अनुभूति र दैनिक जीवनको भोगाइको परिणामबाट प्राप्त हुन्छ। 

https://www.onlinekhabar.com/2026/07/1969836/100-days-of-government-amidst-the-light-of-hope-clouds-of-doubt-also-loom 

पुरानो राजनीतिमाथि नयाँ पुस्ताको प्रश्नैप्रश्न

 गत वर्षको जेनजी आन्दोलन र २०८२ को निर्वाचनले नेपाली राजनीतिमा सरकार मात्र फेरेन, पुस्तान्तरण र राजनीतिक संस्कृतिकै नयाँ अध्याय शुरु गरिदियो। इतिहास र वीरगाथा भन्दा वर्तमानको नतिजा र सुशासन खोजिरहेको नयाँ पुस्ताले पुराना दललाई नराम्ररी दण्डित गरेको छ।  https://www.onlinekhabar.com/2026/06/1960630/the-new-generations-questions-about-old-politics?fbclid=IwY2xjawSrOLNleHRuA2FlbQIxMQBzcnRjBmFwcF9pZBAyMjIwMzkxNzg4MjAwODkyAAEe3tysVWg2Yfa8b8zRIeQ0EI8qUd5xDES5kb1jt3ygpbfe6TH9D-27zE-TyVY_aem_ZKlU1Td22FZ1JbvK7-1yhw

 https://youtu.be/XGEF5ykpQa4?si=PbabGT9-e-U90-CC 

 

On Election Manifesto: A bag of hope or a bundle of lies?

On Election Manifesto: A bag of hope or a bundle of lies?

Dr. Khimlal Devkota

Political party manifestos are considered an important basis for democratic competition. In theory, a manifesto is a formal public commitment to the party's ideas, policies, priorities, and programs it intends to implement during its next term. A manifesto should guide voters in deciding who to vote for. But in practice, especially in our context, there is a widespread feeling that the manifesto has not been able to fulfill its original purpose.

The long-term policy guidelines for the state are clearly specified in the Constitution of Nepal. The 13 state policies and 96 programs mentioned in the Constitution are the basic guidelines for running the state. In this sense, the Constitution itself has taken the form of the "official manifesto" of the state. The Constitution has already determined the basis for the direction the state will take, what kind of economic, social, cultural, and political development it will undertake. Therefore, political party manifestos should also be refined, implementable, and prioritized based on this constitutional direction.

But in practice, this does not seem to be the case. Party manifestos have become a tool for electoral competition rather than a strategic document coordinated with constitutional state policies. In many manifestos, immediate popularity and vote-grabbing promises seem to be more important than long-term policy coordination. As a result, manifestos have become a list of political assurances rather than a responsible roadmap for state governance.

Public interest in manifestos is also very limited. A few days before the election, manifestos are made public, there is some intellectual debate, and there is discussion in the media, but after the vote, the document is almost forgotten. Even during election campaigns, the culture of debate or campaigning on the basis of manifestos is not strong. Voters have also not developed the practice of voting after comparative study of manifestos. Thus, manifestos have become nothing more than intellectual discussions or formalities, failing to become the real basis for political decisions.

One of the main reasons for this situation is the lack of mandatory responsibility for the implementation of manifestos. Even if parties make impossible or impractical promises, there is no institutional review or evaluation system for them. Even if most of the programs written in the manifesto are not implemented after winning the election, there is no clear provision for political or legal liability. This has made manifestos more of a promotional document than a responsibility.

The situation could change if a tradition of regular “audits” of manifestos were developed. Audits are not just financial audits, but also evaluations of the implementation of promises. Parties are more likely to be held accountable if there is an independent body that publicly evaluates the progress of the programs mentioned in the manifesto within a certain period after the election. Such a system can be developed with the joint participation of parliament, civil society, the media, and educational institutions.

International experience shows that in developed democracies, manifestos are considered to be a basic contract of governance. For example, in the United Kingdom, the manifesto of the ruling party is considered a legitimate basis for the implementation of government policies. Many bills are introduced in parliament based on the commitments mentioned in the manifesto. Voters also constantly review election promises.

 

Similarly, when a coalition government is formed in Germany, the parties conclude a detailed “coalition agreement,” which is a practical version of the manifesto. It clearly states the implementation schedule, resource management, and responsible body. Therefore, manifestos are not just assurances but rather agreements on policy implementation.

In the United States, election promises are also a major topic of public debate. Media and research institutions regularly publish fact-checks and progress assessments of promises before and after elections. This strengthens political accountability.

Efforts to reform are also evident in Asian democracies. In India, the Supreme Court has expressed concern about excessively unrealistic or vote-swinging promises in manifestos and has recommended regulatory measures to the Election Commission. Although full regulation remains a challenge, the debate on the accountability of manifestos seems to have reached an institutional level.

These experiences provide a clear lesson—manifestos are effective only when three conditions are met:

First, the manifesto must be realistic and resource-based.

Second, there must be a public monitoring system for implementation.

Third, voters must make the manifesto the basis for political evaluation.

In the context of Nepal, reform can begin with the mandatory alignment of manifestos with constitutional policy. There can be legal or institutional guidelines for parties to prepare their manifestos based on the 13 policies and 96 programs outlined in the constitution. This ensures long-term policy continuity.

In addition, a system of manifesto audits—such as annual progress reports, mandatory parliamentary reviews, and independent evaluation commissions—could be established. Universities and research institutions could also prepare manifesto implementation indices.

Ultimately, the effectiveness of a manifesto is not only the responsibility of the party or the state, but also a matter linked to the political culture of the voters. Unless voters make the manifesto the basis for their votes, the chances of parties becoming serious are limited.

In this sense, a manifesto can be not only a formal document of democracy but also the basis of accountable governance. But for that, coordination with constitutional guidelines, an implementing Institutional audit, and an informed voter culture are essential. If these three elements are strengthened, the manifesto can become a real governance roadmap, not an intellectual luxury.

Why can't the vote that uses notes work?

Why can't the vote that uses notes work?

Dr. Khimlal Devkota

CA Member & Senior Advocate

The country runs on remittances, i.e., money sent from abroad. Those who earn that money are not allowed to vote. This seems strange, but it is our reality. A young person cannot live in the country without going abroad because they have to vote in elections.

Decades have passed since the talk of creating employment within the country began, but every young person is forced to go abroad to run the country, run a house, raise a family, and fulfill their and their family's desires. As a result of the country's misguided economic policy, they are forced to leave their loved ones and go abroad.

 

The person who is alive, sweating in the 50-degree heat and doing risky work, unfortunately, does not have to return to the box, and, fortunately or by chance, if he survives, he can earn some money and send it home. Because of that money, he is forced to see his family's happiness on video calls. At the same time, the money sent in this way is also misused at home, and when he returns home, he is also forced to take the risk of having no home, no property, and no family. If we look at the figures of the previous elections, more than half a million voters out of 125 million voters had gone abroad. For that reason, the majority of the votes cast were considered as 100 percent, and the minority who were absent from the vote was called the majority rule. And the cry of democracy was given. This is our irony today. This is the pain of a victim and the common pain of almost everyone forced to go abroad. This article intends to discuss this issue in detail.

Remittances are enough to support employees

 

Even at the peak of the Corona crisis, Nepal's remittance figure was more than Nepal's total revenue. While remittance income was 961 billion, the revenue figure during the same period was only 889 billion. The total budget was announced at 1647 billion during the same period. The country's revenue is only enough to pay the salaries of employees. There is no alternative to relying on foreign loans and grants for development.

Even before Corona, the country's total debt was around 6 trillion. By the end of the Corona pandemic, the debt had almost tripled to over Rs 1.7 trillion. The country had to borrow again to repay foreign debt. Even after the debt reached three times, it did not have a positive impact on the country's development and prosperity. Where did that debt go? It has become a matter of investigation. Before the Corona pandemic, Nepal's public debt was about 27 percent of the gross domestic product, while at the peak of the Corona pandemic, the public debt figure exceeded almost 40 percent.

Before the Corona pandemic, that is, before the NCP-led KP Oli government took power, each Nepali had a total debt of 23,000, while today that debt has almost tripled to 60,000 per capita. According to a study, 55 percent of households depend on remittances for their daily needs. In this picture of the Nepali economy, the share of money earned by saving blood and sweat abroad is large. The amount received from remittances is more than the country's total revenue. It is enough to pay the salaries of the employees who run the country's administration.

Similarly, half of the principal and interest on the public debt is enough to pay. Where is the role of remittances in this picture of the country's economy? The question has become even more acute in the context of the issue of voting rights. Therefore, like the lyrics of the song 'Labor works, skill works, water does not work?' The question of whether the votes of Nepalis living abroad will be valid or not has become a painful one.

Almost half of the votes abroad

According to unofficial statistics, 6 million Nepalis are scattered outside the country in various countries. This is more than 20 percent of the total population of 29.192 million. If we talk about the number of voters, it is more than half. When we calculate the total number of votes cast, it is sure to be more than half.

The picture of almost half of the total voters being deprived of voting is clear. With half of the total voters absent, and only those who have voted and talk about a majority minority, a minority of the minority who talk about a majority minority by counting the votes that have been cast will definitely create a situation where the minority of the minority will wear the garland of victory. We are calling and considering this minority-victorious rule as democracy. Even though there are many candidates in the minority, our Election Commission does not consider it necessary to get a majority due to the majority voting system.

Due to this, we are forced to sing the song of democracy, seeing the dark picture of democracy going into crisis. We have a legal system that the deposit of a candidate who cannot get 10 percent of the votes is forfeited, but due to the adoption of the majority voting system and the large number of candidates, we have also had examples where a candidate who gets less than 10 percent of the votes is declared the winner and is forced to be governed. Legally, the deposit of the candidate is forfeited, but technically he is elected. We agree to be governed by a person whose deposit is forfeited. This situation shows an ugly picture of our democracy.

This overall situation is not considered good for modern democracy. Therefore, rights activists and political parties have been continuously saying that voters living abroad should get the right to vote even while living abroad. Despite this, we cannot make that arrangement, do we not want to or do we not accept it? It is not possible to say clearly.

Court order

On the one hand, a large number of voters are scattered in various countries outside the country, and on the other hand, there is a legal obligation to be physically present to vote. When a writ petition was filed in the Supreme Court regarding this, almost four years ago, i.e., in 2075, the Supreme Court issued a directive order was issued. The directive order mentions that necessary arrangements should be made to ensure the right of voters living abroad to vote in the upcoming 2079 elections.

It should be remembered that in the context of the writ petition, a written response was submitted on behalf of the state that if there is an order from the court, arrangements can be made in this regard, and that the state is also willing to do so. However, four years have passed since the order was issued. During these four years, many governments have come, gone, and changed. However, no visible steps have been taken to uphold the court order.

It seems that the Election Commission has taken the necessary preparations in this regard and started the process of amending the law. However, during the Oli government, news emerged that even the principled consent sought by the Election Commission through the Ministry of Home Affairs to make legal arrangements in this regard was refused. This shows how tolerant the Nepali state and political parties are for the right of Nepalis living abroad to vote.

International Practice

The context of exercising the right to vote by voters living abroad is very historical. It is found that such a right to vote was used during the Roman Empire. During the reign of the Roman Emperor Augustus, citizens of the 28 newly established colonies outside Rome were allowed to vote. This tradition was further strengthened during the First and Second World Wars, when it was extended to citizens who had actively participated in the war. The practice continued until later times.

New Zealand introduced this facility for seafarers in 1890, and Australia introduced it in 1902 for soldiers deployed to war.

Britain introduced postal voting, or proxy voting, for soldiers deployed to war and for seafarers during the First World War. It was reintroduced in the Falklands War in 1980.

Canada also introduced postal voting, proxy voting, or similar arrangements for soldiers deployed to war and their immediate family members from 1914 to 1955.

France and Britain continued this system for their colonies. In neighboring India, the existing law has been amended to grant voting rights to non-resident Indians (NRIs) or Indians living abroad for more than 6 months since 2010. In addition, proxy voting has also been provided.

Another neighboring country, Bangladesh, has a postal voting system. This system is in place in countries such as Indonesia, Colombia, Spain, Argentina, Switzerland, Honduras, Austria, the Dominican Republic, and Crooked Island.

It is also practiced in countries such as South Africa, Namibia, Palestine, Bosnia and Herzegovina, Afghanistan, and Guam, which are in a state of transition. According to a study published at the end of 2020 by the intergovernmental organization International Idea, 73 percent of the world's 207 countries allow voting while outside the country. It shows that out-of-country voting (OCV) is adopted and 27 percent are not.

If 73 percent of the world's countries have given voting rights to voters living abroad, why can't Nepal be included in the list of those countries? The question has now become clear. The Supreme Court has also issued a directive order regarding the right to vote for Nepalis living abroad. In this situation, it is necessary to pressure the state to implement the system, and the state must also make necessary preparations accordingly.

Management Question

To ensure the system of giving voting rights to voters living abroad, the first priority should be to identify who is a Nepali citizen and who is not. Updating the voter list and ensuring that legitimate voters can participate in the vote is the next step.

You should vote from the embassy from your convenient location or vote before the voting day, i.e., through the advance voting system or online voting or other appropriate measures should be adopted. It is necessary to discuss and reach a conclusion on what is appropriate for Nepal.

There is a large group who are deprived of voting even while staying in their own country. Within that, what other measures can be taken to ensure that employees or security personnel deployed in the election can vote in advance or arrange for online voting? This can protect the right to vote. It is also necessary to discuss this and draw conclusions.

The additional complexity of the electoral system adopted by the country is also with us. For this, it is necessary to improve the electoral system and also arrange a different system for voters living abroad. The principles, such as voters having to be present in person, voting on time, and voting in the presence of a polling officer with a voter ID card, cannot be applied in this situation. Therefore, it is necessary to amend the existing law.

Finally, the right to vote while abroad is not just a matter of whether a country accepts it or not. The right to vote and the right to be elected are also human rights guaranteed by the Universal Declaration of Human Rights. This has also been recognized by Article 25 of the International Covenant on Civil and Political Rights (ICCPR) and Article 41 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW).

This convention is even more attractive for countries like Nepal that have made a policy on foreign employment and send their citizens for work. At the same time, it also creates international obligations.

Therefore, in the case of Nepal, this issue is not limited to the internal affairs of a country but has also become a matter of international human rights and international obligations. If a policy is made not to hire workers from countries that do not accept international obligations, Nepal will be forced to grant voting rights to voters abroad. It would be better to guarantee this right on its own initiative.

The Non-Resident Nepali Association is an active organization in the context of Nepal. Its impact is significant in the Nepali economic, social, and cultural sectors. In addition, it is self-evident that it will also occur in the political sector. However, since Nepali citizens living abroad who have obtained Nepali citizenship and have not renounced Nepali citizenship in accordance with the prevailing Nepali law can remain on the voter list and vote, this community's great demand can be addressed.

It is necessary to do something to ensure that our citizens do not miss this opportunity to obtain the right to vote and fulfill the commitment they have made repeatedly when they go abroad. Local elections are just around the corner. Only if necessary legal arrangements can be made during the federal and provincial elections will it be a great task.

Let us hope that the slogan that the right to vote is a fundamental right, the right of every citizen to vote is the infrastructure of an advanced democracy, will be meaningful.

                                                                                                        

संघीयताविज्ञ खिमलाल देवकोटा (Khim Lal Devkota) को जोड: संघीयता बलियो भए मात्र ग्रामीण अर्थतन्त्र सुध्रिन्छ .

https://www.facebook.com/share/v/1GeDujLQbo/ 

https://youtu.be/z5uhBoIR2Q0?si=WrToR_wlcsT8c3S9