Court orders Nigerian man Simon Momoh freed, after 39 days in ‘unlawful, unconstitutional’ detention apart from Malaysian family

Ida Lim
·4-min read
Simon Momoh’s wife, Low Kar Hui, shows a picture of her husband on her phone at the Shah Alam High Court April 21, 2021. — Picture by Miera Zulyana
Simon Momoh’s wife, Low Kar Hui, shows a picture of her husband on her phone at the Shah Alam High Court April 21, 2021. — Picture by Miera Zulyana

SHAH ALAM, April 23 — The High Court today ordered for Nigerian man Simon Adavize Momoh to be released, which means he would be able to be reunited with his Malaysian wife and their two young Malaysian children soon.

High Court judge Datuk Ab Karim Ab Rahman ordered for the release to be done as soon as practical, after having found that Simon was detained unlawfully and unconstitutionally.

Simon has spent the past 39 days since March 15 in detention.

This afternoon was the High Court in Shah Alam’s hearing of Simon’s habeas corpus application to challenge his alleged unlawful detention and to secure his release to enable him to be reunited with his young Selangor family.

The judge today zeroed in on the Immigration Department’s failure to present Simon before a magistrate within 14 days of his March 15 arrest to obtain a remand order, noting that this was required under both the Federal Constitution and the Immigration Act.

“In the first 30 days, where the procedure requires the obtaining of a remand order from the magistrate, was this done?” he asked.

Deputy public prosecutor Siti Ruvinna Mohd Rawi then confirmed that no such remand process was carried out. (Simon’s lawyers had previously told reporters that he had confirmed he was never brought before a magistrate throughout his entire detention of more than 30 days.)

The judge then said that the failure to bring Simon before a magistrate to obtain a remand order within 14 days before further detaining him meant that the entire detention was unlawful.

“When there is none, that detention becomes non-compliant under the Federal Constitution or under the Immigration Act,” the judge said, referring to both Article 5(4) of the Federal Constitution and Section 51 of the Immigration Act.

Article 5(4) provides that a non-Malaysian who is arrested or detained under immigration laws is required to be produced before a magistrate “within 14 days” and shall not be further detained without the magistrate’s approval.

Section 51(5) also carries a similar provision where a non-citizen arrested or detained under the Immigration Act — and who has not been charged or released or removed from Malaysia — has to be presented within 14 days of his arrest or his detention to the magistrate, who may order for his detention for the required period.

The judge noted that Section 51 of the Immigration Act was drafted based on the Federal Constitution’s Article 5(4), adding that Section 51 is consistent with Article 5(2) of the Federal Constitution.

Stressing that the failure of the Immigration authorities to seek a remand order from the magistrate to detain Simon for more than 14 days meant there was non-compliance with the Federal Constitution and the law, the judge said: “The detention has become a detention that does not comply with the law.”

The High Court judge said that it is the magistrate that has the powers to allow for Simon to be detained up to 30 days, again saying that the Immigration’s failure to refer the matter to the magistrate meant that the detention was unlawful.

Having come to such a conclusion, the judge allowed Simon’s habeas corpus application, which meant he could be freed from his detention at the Semenyih immigration detention centre.

Simon’s lawyer V. Vemal Arasan then asked if the court could order for his client to be released from detention by this evening, with the judge then ordering for the release to be done as soon as practicable.

On April 1, Simon had filed his habeas corpus application, naming the Malaysian Prisons Department, the Immigration Department of Malaysia and the Home Ministry as the three respondents.

Lawyer Abraham Au also appeared today together with Vemal Arasan and Datuk Gurdial Singh for Simon, while lawyer CR Selva held a watching brief for the Bar Council and the Foreign Spouses Support Group (FSSG), and lawyer Mahajoth Singh held a watching brief for the Human Rights Commission of Malaysia (Suhakam).

Civil society organisations present to observe the court proceedings today included FSSG with its co-founder Bina Ramanand attending, as well as Association of Family Support & Welfare Selangor & Kuala Lumpur (Family Frontiers) as represented by Melinda Anne Sharlini, and Amnesty International Malaysia as represented by Brian Yap.

Read here for the chronology of events that saw Simon being kept under detention for more than a month away from his young Selangor family since March 15, despite having served his symbolic one-day jail term and paid a RM12,000 fine for a drink-driving offence.

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