Picture this: A serious constitutional issue has arisen and requires an immediate amendment to the Constitution of Nepal.

The process, one might think, is simple: Parliament acts. A constitutional amendment bill is registered in either the House of Representatives or the National Assembly. The bill is passed by both Houses. The amendment process is completed.

But, at this point, at least until there is a final decision on the Supreme Court’s interim order issued on Wednesday, it is not that simple. There is currently no operative parliamentary rule governing the procedure for passing a constitutional amendment bill.

A constitutional amendment bill is governed by Rule 140(11) of the House of Representatives Regulations. The rule previously provided that once an amendment bill had been passed by the House of Representatives and the National Assembly with a two-thirds majority in each House, it would be sent to the President for authentication.

After the formation of the Rastriya Swatantra Party government, the rule was amended and replaced with a new arrangement that allowed the votes of the House of Representatives and the National Assembly to be combined to determine whether a constitutional amendment bill had secured the required two-thirds majority.

The Supreme Court’s Constitutional Bench on Wednesday, however, ordered that this very rule — Rule 140(11) — along with Rule 259, be kept in abeyance until further orders.

The problem is that Rule 140(11) is the operative provision. The new arrangement replaced the previous arrangement. The Supreme Court’s suspension of the new provision does not automatically revive the earlier provision. Hence, with the current provision now in abeyance, there is no operative House rule at present governing the passage of a constitutional amendment.

That raises a practical question: if a serious constitutional issue arises now and Parliament needs to amend the Constitution, which parliamentary rule can it invoke to process and pass the amendment?

Lawyer Saroj Giri says the interim order appears to have created a practical problem.

According to him, Parliament can introduce a constitutional amendment bill, register it and hold discussions on it. The difficulty comes at the stage of declaring the bill passed.

“There is no difficulty in initiating the constitutional amendment process. A proposal can be brought and discussed,” Giri said. “But the procedure for passing a constitutional amendment bill has been put on hold because of the interim order.”

The Constitutional Bench issued the order in response to a petition challenging the new provision. The petitioners argued that the arrangement in the regulations was inconsistent with the procedure prescribed by Article 274 of the Constitution for constitutional amendment.

Article 274 provides that a constitutional amendment bill may be introduced in either House of the Federal Parliament and must be passed separately by at least a two-thirds majority of the total number of members of each House.

The Supreme Court, referring to Article 274, said the method and procedure for constitutional amendment are prescribed by the Constitution itself. It observed that, prima facie, Rule 140(11) appeared to be inconsistent with the bicameral system provided for under Article 83 of the Constitution, as well as with Rule 129(9) of the National Assembly Regulations, 2075, which provides that a constitutional amendment bill is deemed passed in the National Assembly if it receives the support of at least two-thirds of the total members present.

Senior Advocate Tikaram Bhattarai, who argued before the Constitutional Bench in favour of striking down the disputed provision, argued that a constitutional amendment bill must be passed separately by a two-thirds majority in both the House of Representatives and the National Assembly.

“Our argument is that a constitutional amendment bill must be passed separately by a two-thirds majority in both Houses,” Bhattarai told Kantipur.

The Supreme Court’s order, however, is interim. It has directed only that the disputed provisions of the regulations not be implemented for the time being. Whether Rule 140(11) is actually inconsistent with the Constitution remains to be finally decided by the court.

That leaves the immediate procedural question unresolved.

Former parliamentarian and lawyer Radheshyam Adhikari does not believe the interim order should be understood as having stopped constitutional amendment itself. In his view, the court has suspended the provision in the House regulations, while Article 274 continues to provide the constitutional basis for amendment.

“The Supreme Court’s interim order has not stopped constitutional amendment itself. It has stopped the provision in the House of Representatives Regulations relating to constitutional amendment,” Adhikari told Kantipur. “Constitutional amendment can take place by following the procedure under Article 274. The two Houses can still amend the Constitution with a two-thirds majority.”

According to Adhikari, Parliament can therefore amend the Constitution by securing separate two-thirds majorities in the House of Representatives and the National Assembly. His argument is that the court has suspended only the regulatory mechanism for combining the votes of the two Houses, not Article 274 itself.

Giri, however, points to the absence of an operative procedural provision in the House rules.

The House of Representatives Regulations contain the provision for declaring a constitutional amendment bill passed, he said, and the required provision is now not in operation.

“Since the sub-rule [140(11)] of the House of Representatives Regulations that provides for declaring a constitutional amendment bill passed has itself been suspended, a bill relating to constitutional amendment cannot be passed by the House of Representatives until this case is settled,” Giri said.

Lawyer Semanta Dahal says there may nevertheless be a way to take the process forward.

According to Dahal, there may be no problem with registering and passing a constitutional amendment bill in the House of Representatives. He argues that the Speaker could send the bill to the President using the procedure ordinarily used for authenticating bills.

“From a procedural perspective, I do not see a problem with registering and passing a constitutional amendment bill in the House of Representatives,” Dahal said. “The Speaker can send it to the President even by using the procedure for authenticating ordinary bills.”

Dahal also pointed to another possible route: the House of Representatives itself could amend the disputed provision before the Supreme Court reaches a final decision.

“The House of Representatives can also make the disputed provision in the regulations concerning constitutional amendment consistent with the Constitution,” Dahal said. “The House of Representatives has the right to correct a mistake even before the Supreme Court makes its decision.”

The views of Adhikari and Dahal point to possible ways Parliament could proceed despite the suspension. But they do not change the immediate procedural fact created by the court’s order: Rule 140(11), the provision that currently governs the passage of a constitutional amendment bill, is no longer operative, while the provision it replaced does not automatically return.

Article 274 continues to establish the constitutional requirement for amendment. The unresolved issue is how Parliament is to give effect to that requirement under its own rules while Rule 140(11) remains in abeyance.

The Supreme Court’s final ruling will determine whether Rule 140(11) was constitutionally valid in the first place. Until then, however, the practical question remains: if an urgent constitutional issue arises and Parliament needs to amend the Constitution, what operative parliamentary procedure can it actually follow?

Lawyer Giri said that, because the issue is connected to the Constitution, the Supreme Court should give the case priority and reach a final decision quickly.

“This is an issue connected to the Constitution. It should not be kept in a deadlock for too long,” he said. “The court should hold a regular hearing and reach a final resolution.”