The court also asked them explain in three weeks why government's formulation of rules for the EC will not be declared illegal and unconstitutional as the Constitution and the Representation of the People Order 1972 empower the EC to formulate its rules.

The HC rule came after hearing of a writ petition filed by Awami League General Secretary Abdul Jalil challenging Election Commission (Officers and Staff) Rules 1979, its amendments and the provision that put the EC Secretariat under the PMO.

Barrister Amir-Ul Islam moved the petition in the court yesterday.

The respondents in the rule are the Election Commission, chief election commissioner, election commissioners AK Mohammad Ali and M Munsef Ali, secretaries of the EC Secretariat and the Ministry of Establishment.

The court also heard two writ petitions filed by Abdul Jalil and Awami League lawmakers Rahmat Ali and Asaduzzaman Noor challenging the legality of the preparation of a fresh voter list. Both the petitions were filed on December 12.

After the hearing, the HC division bench fixed today for passing order in this regard.

Yesterday's writ petition says the Election Commission is independent in the exercise of its functions and subject only to the Constitution and any other law, which is expressly mandated in Article 118(4) of the Constitution.

"... in order to discharge its functions properly, the commission has ample power to create offices and posts by itself and may give appointments through control and supervision."

The petition also says the commission, to discharge its functions properly and effectively under Article 94 of the Representation of the People Order 1972, may make rules through gazette notification for carrying out the purpose of the commission as laid down in the 1972 order.

The Election Commission (Officers and Staff) Rules, 1979 and its subsequent amendments for the purpose of recruiting the commission's officers and staff is a direct interference in and manipulation of the functions of the commission, which is directly in conflict with Article 118(4) of the Constitution and is ultra vires to Article 94 of the 1972 order, it says.

"...When Article 94 of the 1972 Order specially vests the rule making power on the commission in relation to its composition and functions, any exercise of executive power to frame unsolicited rules for the commission is ultra vires and same being unconstitutional as it violates Article 118(4) of the Constitution as it tends to usurp the control and function of the EC by making it a helpless institution," the petition reads.

The 1979 Rules paves the way for manipulation by the executive authority on the commission as the entire control of appointment is taken away from the commission and vested in the president and the Public Service Commission, it adds.

The petition says by virtue of the 1979 Rules all the officers and staff of the EC Secretariat are recruited, controlled and guided by the executive authority as it is apparent when the EC secretary issues gazette notifications by an order of the president and not the commission.

"...Hence not only the 1979 Rules and its exercise destroy the independence of the commission as enshrined in Article 118(4) but also create the scope for election engineering through manipulation on the commission's work and hence 1979 Rules is unconstitutional and any exercise of power by virtue of such rules is ultra vires and without any lawful basis."

The petition also says the EC Secretariat, on the alleged plea of 1979 Rules, appointed 300 upazila/thana election officers as per the recommendation of the Public Service Commission through a letter dated June 7 last year, treating the posts and offices as government office "which is beyond the scope of the Constitution and the law."

The "arbitrary appointment" of upazila election officers in contravention of constitutional obligation is likely to have grave impact on the electoral process, it added.

Attorney General AJ Mohammad Ali moved for the government and advocate Khondker Mahbubuddin Ahmed for the Election Commission while advocate Enayetur Rahim and Barrister Maniruzzaman Asad assisted Barrister Amir-Ul Islam.

WRIT ON VOTER LIST
The same High Court bench also heard the writ petition challenging the preparation of fresh voter list under a "unilateral decision" of CEC Justice MA Aziz.

After hearing the petition filed by Asaduzzaman Noor and Rahmat Ali, the court asked EC authorities to submit today the files regarding the voter lists of 1990, 1995 and 2000.

Moving for the petitioners, Dr Kamal Hossain said the CEC unilaterally decided to make a fresh voter list although the two other commissioners were of the opinion to update the list.

"So, we cannot say here that preparing a fresh voter list is the decision of the Election Commission. As per the law, all the EC members or majority of the members will have to take any decision [of the commission]," he said.

But Khondker Mahbubuddin submitted that three EC members had recommended for making a fresh voter list in a meeting on August 7, 2005. "There is no restriction in making fresh voter list as per the EC rules. Fresh voter lists were prepared earlier," he said.

Barrister Amir-Ul Islam later told the press that the CEC and the EC Secretariat have been making the fresh voter list by the election officers who are the members of Jatiyatabadi Chhatra Dal and Islami Chhatra Shibir.

He apprehended that the voter list might be manipulated and the members of minority communities kept out of the list in the areas where Awami League has more voters.