SHAH ALAM, Aug 24 — High Court judge Datuk Mohd Yazid Mustafa today ordered Iranian national Mohammadhossein Samadi to be released after finding he had been detained unlawfully and unconstitutionally.
In delivering his decision today on Mohammadhossein’s habeas corpus application, Datuk Mohd Yazid said the Immigration Department failed to present the Iranian national before a magistrate within 14 days of his arrest to obtain a remand order, stating that this was required under both the Federal Constitution and the Immigration Act.
Prior to the application, Mohammadhossein was arrested for drink driving on March 25 and pleaded guilty to the offence upon which he served a two-day sentence and paid a RM10,000 fine.
He was then transferred to the Kuala Kubu Baru immigration prison on March 27 and arrested by the Immigration Department on the same day under Section 35 of the Immigration Act.
Mohammadhossein has spent 152 days in detention since his arrest on March 25.
Judge Mohd Yazid further explained that Mohammadhossein’s initial arrest by the Immigration Department was done lawfully but his subsequent detention was deemed illegal after the department failed to produce him in front of a magistrate between April 8 and April 22.
He said the detention was not in compliance with Article 5(4) of the Federal Constitution and Section 51(5) 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.
Following the court decision, Mohammadhossein’s wife Ginny Lim Su Lane said the long detention has really affected her two children, aged five and seven, who often asked for their father.
“Five months is really a long time, especially for the kids... they have been asking about him a lot lately, so I just can’t wait to bring my husband back to my kids,’’ she said in a tearful reaction to today’s decision.
Mohammadhossein is currently at the Bukit Jalil immigration depot.
Representing Mohammadhossein is Alex Anton Netto, Kevin De Rozario, and Yap Boon Jhoe.
