Proposed House rules amendment procedure raises constitutional alarm

KATHMANDU, May 26: The proposal made by the House of Representatives Rules Drafting Committee regarding the procedure for constitutional amendment has conflicted with the Constitution.

With the amendment proposal having already received theoretical approval from the House and the registration process completed, the committee’s provision appears to require revision.

A parliamentary secretariat official said the proposed arrangement could create controversy, as the Drafting Committee report of the House Rules has suggested combining votes in favor of constitutional amendments from both the House of Representatives and the National Assembly. If the combined votes reach a two-thirds majority, the Constitution could be amended under the proposed provision.

If this proposal is passed, it would be based on two-thirds of the total membership of both the House of Representatives and the National Assembly (275 + 59 = 334), which equals 223 votes. The ruling Rastriya Swatantra Party (RSP) holds 182 seats in the House of Representatives alone.

According to information provided by the parliamentary secretariat, Rule 140 (11) of the draft House Rules states that once a constitutional amendment bill passed by the House is received back from the National Assembly with messages, if the total votes in favour of the proposal reach at least two-thirds of the total membership of both Houses, the Speaker may certify the bill and send it to the President for authentication.

Although this provision is said to aim at ensuring that supportive votes are not wasted, analysts say it could lead to procedural inconsistencies.

Questions have been raised over whether constitutional amendments can be carried out by bypassing the original structure of the Constitution through parliamentary rules or through the strength of a single House.

Constitutional amendments must be passed by both Houses of the Federal Parliament. If the House of Representatives passes a bill by a two-thirds majority but the National Assembly does not approve it, the amendment cannot proceed.

However, for other bills, different provisions apply. If the National Assembly does not pass a bill within two months, and within 15 days in the case of money bills, the House of Representatives may forward it to the President for authentication.

In cases of disagreement between the two Houses, a joint sitting may be held, where decisions are taken by a majority vote. No other procedure exists for passing legislation beyond these constitutional provisions.

The current procedure for constitutional amendments is governed by Rule 140 of the House of Representatives Rules and Rule 129 of the National Assembly Rules.

A member of the opposition in the drafting committee said that there was strong pressure from the Rastriya Swatantra Party (RSP) to include the provision that combines votes from both Houses to reach a two-thirds majority and that it was incorporated into the draft accordingly.

According to the principle of law, the Constitution is the supreme law of the land. Article 1(1) of the Constitution of Nepal clearly states that any law inconsistent with the Constitution shall be void to the extent of its inconsistency.

Parliamentary rules of procedure are merely procedural instruments. Experts argue that such rules cannot override or reinterpret explicit constitutional provisions.

Article 274 of the Constitution provides that constitutional amendments must be passed by at least a two-thirds majority of the total membership of each House of the Federal Parliament.

This means that both the 275-member House of Representatives and the 59-member National Assembly must separately approve the amendment by a two-thirds majority. The Constitution does not envision combining the votes of both Houses to form a single aggregate majority.

If such a provision were included in the rules, it would directly conflict with the Constitution. According to experts, such a change would only be possible after amending the Constitution itself.