Judge orders Momoh's release from 'unconstitutional' detention
The High Court in Shah Alam ruled today that the Immigration Department violated the Federal Constitution and its own procedures in the Simon Momoh case.
This was because the department continued to detain the Nigerian national despite neither bringing him before a magistrate within 14 days after his arrest nor securing a remand for him...
The High Court in Shah Alam ruled today that the Immigration Department violated the Federal Constitution and its own procedures in the Simon Momoh case.
This was because the department continued to detain the Nigerian national despite neither bringing him before a magistrate within 14 days after his arrest nor securing a remand for him.
This afternoon, judge Ab Karim Ab Rahman allowed the habeas corpus application of Momoh’s family and ordered the 33-year-old to be released from detention at a “practical” time.
During the hearing, deputy public prosecutors Siti Ruvinna Mohd Rawi and Ainaa Lutfiah Mohamed Zulkali admitted that the Immigration Department never secured any remand for Momoh.
“None,” they answered when Karim questioned them about it.
“When there is no (remand), then this does not follow procedure,” the judge said.
“You can’t use Section 34 (of the Immigration Act 1959 to rearrest Momoh) unless you get a remand order within 14 days. If this didn’t happen, that means this does not comply with the procedure in the Federal Constitution.
“This arrest has become an unlawful arrest,” Ab Karim added.
Article 5(4) of the Federal Constitution stipulates that when a non-citizen is arrested and not released under an immigration-related law, the person must be produced before a magistrate “within 14 days” and shall not be further detained without the magistrate’s approval.
Section 51(5) of the Immigration Act also carries a similar provision where a non-citizen arrested or detained - and has not been charged or released or removed from Malaysia - must be presented within 14 days of his arrest or his detention to the magistrate, who may order for his detention for the required period.
Momoh was arrested on March 15 for a drink-driving offence. It has been 40 days from when he was arrested.
After pleading guilty and jailed for one day, instead of being released he was transferred to the Semenyih immigration detention centre.
The department said it had arrested him under Section 35 of the Immigration Act (power to arrest persons liable to removal) on March 15 over his drink-driving conviction.
The department said it later “re-arrested” him under Section 34 (detention of persons ordered to be removed) when it cancelled his spousal visa and wanted to deport him.
Lawyers thank judge
Momoh’s family was represented by counsel V Vemal Arasan and Gurdial Singh Nijar.
Speaking to the media, Vemal thanked the judge and said they will try to get Momoh released and reunited with his Malaysian wife Low Kar Hui (on right in photo at the top) and two children as soon as they can.
“We thank the judge for seeing what we saw.
“We thank a lot of people for a lot of support. We are still speechless,” he said.
Vemal also said the respondents had stated in their affidavit that they secured a remand for Momoh, despite the DPP today telling the court the contrary.
Momoh’s family has separately filed a judicial review application against the Immigration Department’s deportation order against Momoh.
The Human Rights Commission (Suhakam), the Bar Council and the Foreign Spouses Support Group held watching briefs today. A representative from Amnesty International Malaysia was also present in the courtroom.
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