The status of three Keadilan leaders prevented by the Election Commission (EC) from contesting in the general election will be known tomorrow.

The Kuala Lumpur High Court will decide if the EC had erred in holding that party vice-president Mohd Azmin Ali ( far right ), Youth chief Mohd Ezam Mohd Nor and Wanita deputy chief Irene Fernandez have lost their eligibility to contest in the polls due to their respective criminal convictions.

Justice Md Raud Sharif said he needed some time to consider all arguments forwarded by counsel Malik Imtiaz Sarwar and Attorney-General Abdul Gani Patail who represented the politicians and EC respectively.

The Keadilan trio is seeking a judicial review of the EC's decision - stated in a letter dated March 3, 2004 - barring them from contesting in the election despite having obtained a stay pending appeal against their convictions and sentences as stated in a letter dated March 3, 2004.

They also urged the court to declare that the EC had acted ultra vires the law in making the decision.

Azmin is currently appealing against a perjury conviction, while Ezam and Fernandez are battling their convictions under the Official Secrets Act and the Printing, Presses and Publication Act respectively.

Court has review power

Earlier in court today, Malik argued that EC in its letter had made a decision which had effectively disallowed the Keadilan trio from standing as candidates in the election and the court has the power to review it.

He also said the court has the jurisdiction to review the decision because it was a policy decision that would govern the returning officer's (RO) decision whether or not to accept the trio's nomination this Saturday.

"The letter states the EC's policy decision that clearly states that their nominations would be rejected. It definitely can influence the decision of the returning officer," said Malik.

"Even if the decision is in the nature of advisory, such advice is also subject to judicial review as it could effectively amount to a ruling."

He also questioned the contradicting statements made by the EC chairperson Abdul Rashid Abdul Rahman on the trio's eligibility.

He said Abdul Rashid had earlier stated to malaysiakini that the trio were eligible to run for the elections as they have yet to exhaust their rights of appeal but later changed his mind by stating otherwise.

Mere explanation

Abdul Gani urged the court to dismiss the trio's "frivolous" application stating that the letter which the EC had sent to the party was merely to state their opinion on the matter.

"The EC was merely explaining the provisions of the law and is not in the position to decide on an actual situation where nomination paper has been received - unlike the position of the returning officer who has to decide whether to accept the nomination or not," he said.

"This is very clear as the chairperson had later informed that the final decision rests on the returning officer."

He said the court must not entertain the application stating that it would amount to restraining the returning officer from exercising his discretion in making a decision on nomination day.

"The court can only act after the returning officer makes a decision and not before that," said Abdul Gani.

He also said if the court entertains the application, it would risk opening a floodgate where "every single letter issued by the EC would be subjected to a court review".

Malik replied that although returning officers have the liberty to decide on the trio's eligibility, he was still subjected to the control, supervision and direction of the EC.

"So to say that the ultimatum is up to the returning officer is not quite right. The EC is in charge of elections and when they write a letter of policy that my clients cannot stand for election then that policy must carry some internal weight to the officers," he said.

"If the court was to quash the decision and rule that the policy statement does not hold any water, then the officer can be allowed to do their work and consider the nominations objectively."