The Brief: Anurag Devkota on Diaspora Voting: The Missing Citizens in Nepal’s Electoral Process

[00:00:10] - [Anuj Tiwari]
Namaste and welcome to PODS by PEI, a policy discussion series brought to you by Policy Entrepreneurs Inc. My name is Anuj Tiwari. In today's episode, I have Anurag Devkota in our studio to discuss the issue of voting rights or the lack thereof for the Nepali Diaspora. We base our conversation off of Anurag's 2020 op-ed piece that was published in the record following the supreme court verdict, which was in response to a public interest litigation filed by his team to grant external voting rights. The relevance of this topic is more so today as we approach our next general election in a matter of days, but without the court mandated provision.

[00:00:54] - [Anuj Tiwari]
Anurag is a human rights lawyer at the Law and Policy Forum for Social Justice. He holds an LLM degree from Loyola University Chicago. He is the incoming global criminal justice fellow at the Center for Criminology Oxford University and the civil society and public administration fellow at the Toronto Metropolitan University. He also runs Wright's Lab, a research institution that works on the issues of rule of law, democracy, human rights, and migration governance. Anurag and I discuss his reasons behind filing the public interest litigation in 2017 and his take on the failure of the Election Commission of Nepal to implement the verdict of the Supreme Court.

[00:01:37] - [Anuj Tiwari]
Anurag argues that the lack of political representation of the Nepali diaspora, especially those who are out for labor migration, is a key reason behind their terrible living and working conditions, and that it is our responsibility to ensure their right to vote, given that the country relies so much on their contribution. We also discussed some of the systemic and political challenges to implementing external voting, including logistics, cost, and political will, and the practice of several countries in Asia and Africa that are similar to Nepal. We hope you enjoy the conversation. Welcome, Anurag. Delighted to have you here at Pods by PEI.

[00:02:20] - [Anuj Tiwari]
I really appreciate your time and effort to be with us here. Shall we get on with the conversation? Absolutely. Four months after the last general election in 2017, the Supreme Court ruled for out of country voting rights and directed the Election Commission of Nepal to make necessary arrangements. As one of the members of the legal team that filed the PIL, public interest litigation, can you please explain the rationale behind your advocacy for this issue?

[00:02:52] - [Anurag Devkota]
Thank you. To start with, I would like to give you all a sense of the timeline. So we had filed the PIL on, 27th April 2017. It was few months before the general election of 2017, and the Supreme Court's ruling came out on 21st March 2018. Now coming to the rationale behind the advocacy and the PIL, you know, I might have to give a brief background of our work.

[00:03:20] - [Anurag Devkota]
So large part of our work has been around defending and upholding the rights of Nepali migrant workers and trying to establish pro migrant workers regime back home. And through our strategic litigation, we are aiming towards a revised and a reformed policy and normative frameworks back home. So we all know the realities that, you know, migrant workers are dealing with day in and day out. And there's very little that the country or the government has done to protect their lives or or their rights. The international airport receives in the average of two to three dead bodies of Nepali migrant workers from countries like Gulf and Malaysia, while hundreds are languishing behind the bar in charges which even they are not aware of in the absence of legal assistance or representations in these destination countries.

[00:04:12] - [Anurag Devkota]
While because of the death trap back home, many are suffering from mental health issues and the rates of suicide are rising and it's very very alarming. Now that we've clarified the rationale for the PIL and the context behind the filing,

[00:04:28] - [Anuj Tiwari]
what is Nepal losing out on because this has not happened?

[00:04:33] - [Anurag Devkota]
That's a very nice question. So if I can put it this way, you know, Nepal is not practicing democracy in its true sense by disemphasizing the significant electorate. You know, by significant, I mean, if I have to rely on the data of the government of Nepal, I'm not talking about the whole diaspora. I'm just taking example of the migrant workers, You know, the documented migrant workers who have obtained the labor permit to to go to countries like Gulf and Malaysia in the pursuit of employment or in the pursuit of better income and employment opportunities. So the data of the government, the Ministry of Labor Employment and Social Security's data finds that, you know, in in last ten years.

[00:05:18] - [Anurag Devkota]
So by ten years, I mean, the data from 2008 to 02/2018, you know, it finds that there are 400,000 absentee population absentee migrant workers population in Nepal. So by 400,000, I'm not referring to those who are undocumented. You know, that's a whole different sides to it. So I'm basically talking about those migrant workers who have taken the labor approval from the government and went to this destination countries for for the employment opportunities or to find a job. So there are significant person who have opted for the irregular channels to go to these countries.

[00:06:02] - [Anurag Devkota]
So they don't come under the data of the government. And there are significant number of migrant workers who are bound to India for work. So we are not covering that data. So we're just covering the documented migrant workers, you know, the regular migrant workers. So that number is so significant.

[00:06:22] - [Anurag Devkota]
400,000 is a significant number number which could swing the election results in Nepal. Even with that, you know, it's for with even with 400,000, like, excluding the other numbers, other significant number, it's still the 14% of Nepal's population. So by that, I mean, percent of these population who, by virtue of the constitution of this country, was guaranteed a fundamental right to, you know, take part in the public affairs in this country, who has who enjoy the freedom of expression and opinion by virtue of the fundamental rights of the constitution of this country, are significantly ignored or excluded when it comes to exercising their voting rights. So by that, we are not actually practicing democracy in its true sense. That's what I meant.

[00:07:15] - [Anurag Devkota]
So what's Nepal is losing out? I I think I would like to take it more through the lens of migration governance and labor mobility because, the policy responses, you know, if we look into the the policy and normative frameworks of this country, it does not speak the language of the migrant workers. It it has deliberately ignored the rights and the plights of migrant workers. You know? The the policy if you look into the policies of of the Nepal, you know, vis a vis the labor migration or foreign employment, that's what we call it legally, the labor migration policies are mostly focused on the compliances and the security deposit of the recruitment agencies.

[00:07:59] - [Anurag Devkota]
And if you if you search for what are the rights that are enshrined in the labor migration policies of this country, you don't have any answers because there aren't any rights that has been guaranteed by the governing legislation of this country. So, so I think, it's it's it's high time, you know, the the policymakers should think from this lens and and, you know, take these concerns and everyday plights of Nepali Magna workers and reflect that in the policy framework.

[00:08:31] - [Anuj Tiwari]
Could you just give any example of best practices?

[00:08:35] - [Anurag Devkota]
Absolutely. So when we take examples of the best practices, you know, we always make sure that we had the best practices on table when we do this discussion. So every time we have to stumble upon the example of Philippines. The best practices for instance in countries like Philippines is that they have been practicing out of country voting since 02/2004. However, it was enshrined in the constitution back in 1987.

[00:09:07] - [Anurag Devkota]
So by that virtue, you know, they have set examples in all fronts of migration governance, and maybe the best in Southeast Asia when it comes to policy frameworks and protecting the rights of migrant workers or absentee migrant workers. So the changes that Philippines has introduced, kind of makes it a champion country when it comes to recognizing the rights of workers and their families. You know, for example, the domestic labor law of Philippines protect workers even when they are not in The Philippines. Or I I can say that, you know, they could still enjoy the labor rights beyond the territory of of The Philippines or of their state. Similarly, they have amazing reintegration policies for returning migrant workers, includes amazing microfinancing projects.

[00:10:00] - [Anurag Devkota]
They have a vibrant embassy and a strong presence of a support system even in the administratively complex countries like Qatar, Saudi, and other GCC countries. So the Philippine government, the Filipino government has even established, you know, the dedicated schools in destinies and countries where the children of migrant workers could enroll their children. You know? They go by the name Philippine School Overseas, PSO. So this is the classic example of what could be done if there's a political will to do it.

[00:10:35] - [Anurag Devkota]
And it looks like, it's still a far cry for a country like ours. But then having that right, having having a voice represented in or during the lawmaking process, maybe someday we could be there where The Philippines is today.

[00:10:54] - [Anuj Tiwari]
It has been four and a half years since the Supreme Court ruling, but external voting rights have not been materialized to this day. As you mentioned in your op ed, there are multifaceted reasons behind the lag, but let's first start with understanding the logistical challenges for the election commissions of Nepal to implement this decision. In defense of the state, are there any constraints in terms of resources?

[00:11:22] - [Anurag Devkota]
I agree. There are logistical challenges to it, but I don't think it's something that's not doable. More than 150 countries have been practicing it. The challenges, however, I foresee is with finding the right model that suits well with the geographical, political, and economic context of Nepal. So a feasibility study should give an answer to this is what I feel.

[00:11:48] - [Anurag Devkota]
You know, if I have to give example of India, they are in the final stage of implementing the out of country voting now. But similar to our case, you know, it it all started with a PIL in India too. But what the Supreme Court of India did was it established a task force or a committee comprising of the experts, you know, the experts in the relative field. There were professors, government officials, member of election commissions, civil society organizations working in this field, including others. And and the Supreme Court basically directed them to furnish or come out with a a feasibility study report on the model that works well in the context of India.

[00:12:28] - [Anurag Devkota]
So what India did was they revised their law. So they revised people representation act of India. And now now couple it it's been a couple of weeks since the Supreme Court, after taking the assurance of attorney general of India, they decided on either postal voting or proxy voting would fit best in the context of India. So I feel that, you know, from this example, I I personally feel that there could be logistic challenge to it, but I don't think it's the same case with holding elections in Nepal as well. You know, there are logistic challenges to it as well.

[00:13:07] - [Anurag Devkota]
So, I mean, with the right will and right intention, this should be and this could be done. This is what I feel.

[00:13:15] - [Anuj Tiwari]
The argument often made against external voting is its costliness, and you acknowledge this as well. However, you go a step further and defend external voting rights. Could you please say your arguments for external voting rights despite their costliness?

[00:13:35] - [Anurag Devkota]
So coming to the cost, I I really don't buy the idea that, it's the cost factor. I still think this is very much doable. You know, if I have to take examples from what's happening around the globe, countries with GDP per capita similar to Nepal's in terms of purchasing power parity, like Senegal, and even those with lower GDP per capita, like Mozambique, they have guaranteed the mail in voting option for their migrant workers in recognition of their significant contribution to the national economy. But, I would really like to recenter my argument to the contribution of migrant workers in the economy of this nation, in the economy of Nepal. Because the country runs on remittances had it been not for them, you know.

[00:14:22] - [Anurag Devkota]
We don't know where the country would be economically. The remittances has more or less, you know, swaying signs of Dutch disease syndromes. You know, we are at the phase where we don't have an answer to what else if it's not for the remittances. So I think it's about the time the country should give back. It should be both ways.

[00:14:42] - [Anurag Devkota]
The country is drawing all the benefits while the migrant workers are bearing all the cost. So I personally feel that all those problems associated with migrant workers, you know, the death, the legal representation, health issues, these are all preventable, you know, had there been a little added effort or had there been a little more accountability on part of the government. So maybe having the representative or having someone who could represent their voices in the parliament in lawmaking discussion and in similar important platforms, you know, by that ways, I think it would create a win win situation for both the government as well as the migrant workers.

[00:15:27] - [Anuj Tiwari]
Besides resources, you know that there is also a political dimension to the challenges in implementing external voting. Could you please elaborate on this?

[00:15:38] - [Anurag Devkota]
That's a very interesting question. You know, four years and half, yet we have not been able to implement the decision of Supreme Court. I think it all boils down to the same answer, the lack of political will. Otherwise, I don't see a challenge per se if the political parties are convinced of their voter banks in diasporas. And given the political will, I think it's very much doable.

[00:16:04] - [Anurag Devkota]
It's just about, you know, what model works well in context of Nepal. You know, it could be electronic voting or mail in voting or proxy voting or poll station in respective embassies or consular offices. You know, if we could do that or if we could commission that feasibility study, keeping the current context in the frame and come out with a substantive finding and orient election commission of Nepal, this is very much doable. I'm optimistic. And if we are to dissect on the technicalities on the eligibility criteria, I think it's very plain and it's very simple because the Supreme Court has already clarified the ground, you know, in the case of Punathandrapodel versus Election Commission back in 02/2011, where it has mentioned that, you know, a citizen certificate to be the the important criteria for being included as a voter.

[00:16:55] - [Anurag Devkota]
So a mere citizen certificate would clear all grounds of the eligibility criteria by virtue of the decision of the Supreme Court of Nepal back in 02/2011, which has been reiterated by 2,018 decision of the Supreme Court in our case. And the other ground, if we are to take, reference to the constitution of Nepal, you know, article two hundred eighty six six of the constitution of Nepal mentions that while delimiting the constituencies, attention shall be paid to the population density. So population density is categorized as one of the criterias for de delimiting the con the constituencies during the election. There are other grounds. For example, geographic conditions, transportation proximity, and all.

[00:17:43] - [Anurag Devkota]
You know, I think that wouldn't be an issue. So I would like to really highlight on the population density part because as I've also highlighted on my op ed, some of the Nepal's some of Nepal's biggest provinces have same population density as the Nepali population density in diaspora, especially, if we take example of the same data that I mentioned before, the documented migrant workers, who are based in Malaysia, Qatar, or Saudi Arabia. So to sum up, you know, the major challenge I see is with finding a feasible model or feasible method that suits for our context. But election commission has already done it before, and I think it is in a position to do it again, you know, taking into cognizance the present context of Nepal. But I also feel that it's about time that the political analyst should come out with the political economy analysis, you know, of the out of country voting and assist Election Commission of Nepal in devising the method or model of out of country voting for Nepal.

[00:18:51] - [Anurag Devkota]
It is known that the diaspora is involved in party level politics, as you mentioned earlier in your answer. The involvement is so significant that major political parties have their diaspora party wings.

[00:19:04] - [Anuj Tiwari]
Despite that, there is a reluctance to devise a policy that makes them eligible to vote. Why do you think this is the case?

[00:19:14] - [Anurag Devkota]
To the best of my knowledge, I feel that the major political parties have no sense or lesser sense of their voter base in diaspora. You know, so I think they're not willing to take chance with that, maybe. And as I mentioned before, you know, the number is significant enough to swing the election result, you know. If say, if there's a new political party, and let's say, if only the migrant worker based in Gulf and Malaysia voted for that single party, that would be the largest political party in Nepal. Maybe they don't want to take that risk.

[00:19:55] - [Anurag Devkota]
Secondly, so redirecting the campaign financing, you know, beyond the border of the states, I think it has its own set of, challenges, especially from the financial cost side. So that could be one reason, maybe. Third I see is with, you know, since the chances that, nonresident Nepalese, NRANs, or diaspora funding would be channeled through election campaigns, the fear that there would be an intervention of NRANs in promoting their personal or collective interest or agendas through elected political parties, you know, very hypothetically speak. That could be one reason. And fourth, I strongly agree on this because, the campaign of out of country voting is tagged as a flagship movement of the growing alternative political parties.

[00:20:50] - [Anurag Devkota]
They have been coming up with this movement on since a long time now. So I believe, you know, it might have established a sense of insecurity among the mainstream political parties, mostly from the ground that the alternative political parties might have a better voter base outside of the country. This all could be the reason, but

[00:21:12] - [Anuj Tiwari]
this is very personal opinion. The issue of external voting has definitely lost the traction it wants gained through your PIL and the court's verdict. However, you have said so far it is essential to uphold Nepali democracy. Why is the issue not getting picked up in the mainstream public sphere?

[00:21:36] - [Anurag Devkota]
I feel that it's not that it has lost its traction, but the discussions around this issue has been limited to closed rooms and closed groups. The civil societies of Nepal are advocating it through their closed stakeholder meetings and discussion, But, it has in recent time not found the platform that it deserves is what I feel. I think it is the lack of political will whether we accept it or not, and then, there could be associated factor behind that lack of political will, especially when it comes to the mainstream political parties of Nepal, as I mentioned earlier. But then I just don't blame the mainstream political parties. I think it is equally the mainstream news agencies, mainstream media houses, you know, they could or should do well, you know, to keep up the fire burning, as in to keep the issue alive, you know, but unfortunately that hasn't been the case.

[00:22:40] - [Anurag Devkota]
There were some hustles and discussions around Supreme Court judgment, you know, prior to local level election, but then this time around I haven't found or I haven't come across any of those movement or maybe I might not be aware of it. So I was also really counting on, you know, the political economy analyst to come up with the PEA, their political economy analysis. But, unfortunately, it wasn't the case either. So I think there's no point putting blame on the political parties, although they share the heavier side of it. But I think the rest of us, we could all do better than this.

[00:23:25] - [Anuj Tiwari]
That being the case, what are your next steps in advocating for external voting rights?

[00:23:32] - [Anurag Devkota]
As I mentioned earlier, you know, I think the discussions should come out of the closed room to mainstream public platforms. And speaking from myself, you know, as a lawyer, we could as well take up the case on the contempt of court, you know, for not abiding by the directive order of the Supreme Court. But then I've also heard that there's already a case of contempt being filed in this in the Supreme Court. But I am I am personally not aware about the status of that contempt. So I think the ball is in the government's court.

[00:24:05] - [Anurag Devkota]
So I think the pressure should be on them. There's less that judiciary could do now. I think it has done enough. So the ball is in the government's court. We are really looking forward to the executives to execute on this.

[00:24:18] - [Anurag Devkota]
Personally, I'm also planning to take forward the advocacy from two fronts. One, from the right best perspective. I have been writing about it. I will write about it. And advocate around the issues, you know, and keep the issue alive.

[00:24:32] - [Anurag Devkota]
I mean, to to any scale, to any degree, that I could, do personally. You know, the other is from political economy analysis, political economy perspective. I think this part is majorly lacking in the current discourse, you know, or in the current situation. And I I absolutely think that this is an absolute necessity or this is absolute necessity, which, should help election commission to determine the right approach as well as the government to come out with a robust policy and normative framework. You know, this should I think this should provide a substantive evidence for the government to come out with evidence policies.

[00:25:14] - [Anurag Devkota]
Have we had a strong political economy analysis?

[00:25:19] - [Anuj Tiwari]
Definitely. Lastly, could you please share some resources to get started on this issue for our listeners tuning in?

[00:25:28] - [Anurag Devkota]
So for the full text of the judgment of out of country voting, you can find it in the website of Supreme Court of Nepal. And if you're interested in my article, it's on the record, and it's entitled as Nepal's own mail in voting crisis. Thank you.

[00:25:45] - [Anuj Tiwari]
Thank you so much Anurag for being on the show and sharing your knowledge with us. All the best for your future endeavors and thank you very much for bringing the issue of out of country voting to the public light.

[00:25:56] - [Anurag Devkota]
Thank you. It was an absolute pleasure. Thank you for having me. That brings us to the end of today's episode. Thank you for listening.

[00:26:10] - [Anuj Tiwari]
Thanks for listening to Pods by PEI. I hope you enjoyed my conversation with Anurag on the issues of granting external voting rights to the Nepali Diaspora. We discussed his takes on the rationale of the issue, systemic and political challenges in its non implementation, and key pointers for the election commission to execute the 2018 verdict. Today's episode was produced by Saurav Lama with support from Nirjan Rai, Khushi Hung, and Chhedon Kansakar. The episode was recorded at PEI studio and edited by Sourav Lama.

[00:26:46] - [Anuj Tiwari]
Our theme music is courtesy of Rohit Shakya from Jindabad. If you like today's episode, please subscribe to our podcast. Also, please do us a favor by sharing us on social media and leaving a review on Spotify, Apple Podcast, Google Podcast, or wherever you listen to the show. For PEI's video related content, please search for policy entrepreneurs on YouTube. To catch the latest from us on Nepal's policy and politics, please follow us on Twitter at tweet to PEI.

[00:27:17] - [Anuj Tiwari]
That's tweet followed by the number two and PEI and on Facebook at PolicyEntrepreneursInc. You can also visit pei.center to learn more about us. Thanks once again from me, Anuj Tiwari. We will see you soon in our next episode.