It was decided to file a writ petition after Congress President Gagan Thapa and office bearers discussed the matter with senior advocates Radheshyam Adhikari, Harihar Dahal, Gopal Krishna Ghimire, Prem Bahadur Khadka, and Yadunath Khanal.
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Despite the opposition parties' obstruction, the Congress and the UML are going to file a writ in the Supreme Court against the new regulations passed by the House of Representatives with a majority.
The top leaders of the party have already prepared a draft after discussing it with senior advocates. Congress parliamentary party leader Bhishma Raj Angdembe informed that the writ will be filed by Tuesday or Wednesday.
'Despite the opposition's opposition, the regulations were passed by a forcible majority. The passed regulations are in conflict with the constitution and federal laws. Congress and UML are going to file a writ to nullify the conflicting provisions,' he said.
Congress President Gagan Thapa and office bearers decided to file a writ after discussing the matter with senior advocates Radheshyam Adhikari, Harihar Dahal, Gopal Krishna Ghimire, Prem Bahadur Khadka and Yadunath Khanal.
Advocate Khanal said that preparations are underway to file a joint writ petition by the parliamentary party officials of both the House of Representatives and the National Assembly. Preparations are underway to file a writ petition with the signatures of the Chief Whip and Whip of the Congress and UML from the House of Representatives and the parliamentary party leader and whip from the National Assembly.
Despite the opposition parties' obstruction, the House of Representatives passed the regulations on 17 Jestha. Since then, the opposition parties have been objecting to the regulations in the parliament for issues that conflict with the constitution and law and the process of passing them.
Advocate Khanal said that the writ petition will be filed on Tuesday itself if possible. The main claim raised in the writ petition is related to the provisions of the preamble of the regulations and the provisions of Rules 259 and 140.
Advocate Khanal said that the regulations have attempted to limit the influence of prevailing laws, especially criminal laws, by providing a provision to grant the House of Representatives the status of a ‘federal law’ or a ‘special law’.
Advocate Khanal says that although the constitution has given limited privileges to lawmakers, it does not give anyone the right to grant immunity from criminal offenses. He said that the House of Representatives cannot make its own regulations contrary to its federal law.
It is claimed that the procedure for amending the constitution is also controversial. The writ petition states that Rule 140 and related provisions seek to weaken or ignore the role of the National Assembly in a sensitive issue like constitutional amendment.
Under Article 274 of the Constitution of Nepal, there is a clear provision that two-thirds representation is required by both houses separately for amending the constitution. But the regulations have given the Speaker the authority to calculate two-thirds by adding the total number of members of the House of Representatives and the National Assembly. It is being claimed in the writ petition to have it annulled, saying that it is against the spirit and spirit of the constitution. Concerns have been expressed that such an interpretation of the regulations may undermine the role of the National Assembly and the legislative process including the President's certification, and that such an interpretation of the regulations may interfere with the constitutional process.
Article 104 (1) of the Constitution has stipulated that regulations can be made only within the jurisdiction of three situations. In which it is stated that ‘every member of the Federal Parliament may make regulations for the conduct of its business, for the maintenance of order in the meeting and for the formation, work, proceedings of committees and for the regularization of the procedure of any House or committee’.
However, the regulations passed by the majority have been invalidated on the grounds that they have made rules outside the jurisdiction of the Constitution. An unconstitutional situation has arisen where the House of Representatives, through its internal regulations, can even render ineffective the implementation of criminal laws duly enacted by the Federal Parliament.
‘The Constitution has given the House of Representatives the power to conduct its business and determine its procedures under Article 104, but not to grant immunity from criminal liability or to render the prevailing law ineffective,’ the proposed writ states, ‘Therefore, the provision in Rule 259 is unconstitutional and ill-conceived as it goes beyond the established constitutional supremacy, rule of law, equality before the law, and the limited privileges granted to members of Parliament by the Constitution and attempts to place members of the House of Representatives above the scope of prevailing law, especially criminal law.’
Rule 259 of the House of Representatives Rules, 2083, provides that the internal procedural rules made by the House of Representatives under Article 104 shall be applicable as “federal laws” and “special laws.”
The writ states that such a provision has rendered the constitutional process of participation of the National Assembly and certification of the President required under Articles 111 and 113 irrelevant and ineffective by the rules made by the House of Representatives.’
He has stated that giving the regulation the status of a federal law without completing the constitutional process prescribed by the constitution for making laws is a direct encroachment on the established legislative process of the constitution.
UML Chief Whip Ain Mahar said that the opposition parties are preparing to go to the Supreme Court with a writ petition. ‘The regulation of the House of Representatives was passed by force against the constitution.’ He said, ‘Homework is being done to take a writ petition.’
Senior advocate Tikaram Bhattarai said that there is a provision to amend the constitution after it was passed by two-thirds of the National Assembly and the House of Representatives separately, but the regulation is inconsistent. He said that it is against the constitution to include a provision in the regulation that the constitution can be amended only by the House of Representatives.
‘The regulation has been passed by the parliament foolishly and forcefully. The regulation is inconsistent with the constitution. It is null and void as it is in conflict with the constitutional amendment clause in the constitution,' he said. Article 274 of the constitution provides for constitutional amendment. 'This constitution cannot be amended in a way that is detrimental to the sovereignty, territorial integrity, independence and sovereignty vested in the people of Nepal,' the constitution states. 'Subject to other articles of this constitution, a bill to amend or repeal any article of this constitution may be introduced in either house of the federal parliament.'
There is a provision to publish the constitutional amendment bill publicly for the information of the general public within thirty days of its introduction in the relevant house. Bhatrai says that despite the provision that it must be passed by a two-thirds majority from both houses, the provision to pass it together in the rules is directly against the constitution.
