After one month in detention and facing the threat of expulsion from the country, Momoh was ordered to be released by the Shah Alam High Court today.

Momoh is married to a local and has two young children.

Judge Ab Karim Ab Rahman said the detention was unconstitutional and that the immigration department had breached procedure.

He said the magistrate did not receive any remand application for Momoh’s detention, making it in contravention of Article 5(4) of the Federal Constitution.

The article 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.

As the judge read out his decision this afternoon, Momoh’s wife, Low Kar Hui was in tears.

Speaking to reporters later, she said she was relieved and thanked well-wishers who had been supporting her. “I’m really grateful and thankful that justice has been served.

“It has been a very difficult period for us but I stayed strong for my husband and my children have been staying strong for their father.”

Momoh, who has been married to Low for eight years, was arrested at a roadblock in Cheras in the early hours of March 15 on suspicion of drink-driving.

He pleaded guilty in court the same day and paid the RM12,000 fine. Low was told he would be released at 5pm. However, he was detained at the Semenyih detention centre for a total of 40 days and his one-day imprisonment was used as grounds for his visa to be cancelled.

Previously, a judicial review was filed against the immigration director-general to challenge Momoh’s deportation and cancelled visa. It will be heard on May 4.

Momoh’s deportation order, which was emailed to his wife on April 14, had asked Low to make arrangements for his flight back to Nigeria. According to the order, Momoh is deemed a prohibited immigrant.

Momoh’s lawyer, V Vemal Arasan said after the hearing that the court has ordered for Momoh to be released as soon as possible.

Speaking on the remand issue, he said he received an affidavit by the Attorney-General’s Chambers (AGC) today, which claimed that there was a remand order on April 6. “But there was no remand,” he said.

During the hearing today, the deputy public prosecutor (DPP) claimed that Momoh was detained under two separate laws – Section 35, and subsequently, Section 34 of the Immigration Act.

Section 35 states, any person reasonably believed to be a person liable to removal from Malaysia may be arrested without warrant by any immigration officer or by a senior police officer, and may be detained in any prison, police station or immigration depot for a period not exceeding 30 days pending a decision as to whether an order for his removal should be made.

The DPP said that after the 30 days, they continued to detain him under Section 34, which states that, where a foreigner is ordered to be removed from Malaysia, he may be detained in custody for such period as may be necessary for the purpose of making arrangements for his removal.

They said the immigration director-general had ordered the cancellation of his valid long-term spouse visa during his detention, to enable him to be deported.

The judge then told the DPP that he did not agree with the Immigration Department detaining Momoh under both Section 35 and 34.

“This is a current detention,” he said, “therefore, there is non-compliance of procedure by the immigration.”

The DPP also admitted that there was no remand submitted to the court after 14 days of Momoh’s arrest.

The judge replied: “When there is no remand, then this is against the Federal Constitution and also against Section 51 of the Immigration Act.”

Human rights lawyer Gurdial Singh Nijar told reporters that the Immigration Department had no right to cancel Momoh’s pass and then use that as a basis to remove him.

“They got the entire procedure, from beginning to end, wrong.”

He added that, even though the immigration director-general has the discretion to cancel the visa of any immigrant if they were jailed, it must be a serious offence related to the Immigration Act.

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