14 June 2009

Manohara Odelia Pinot -- Part IX -- Let The Games Begin


Now, that both parties have filed their respective complaints in their respective jurisdictions, it is time for the fun and games to begin.

As I have been saying all along, this is a simple "she said, he said" scenario that is going to require the testimony of someone other than Manohara (photo courtesy of here) or the prince to testify to what they know. This is a distinct possibility judging by the number of people named in Manohara's complaint.

Nevertheless, Daisy Fajarina, Manohara's mother, has been vocal in claiming that they have more than enough proof to sustain their claims and prove the allegations against the prince. If this is the case, and I was their lawyer, I would be encouraging them to file a criminal complaint in Malaysia as well. Although these are serious allegations, they are not extraordinary crimes and as such are not subject to international legal principles such as universal jurisdiction or erga omnes obligations to prosecute or extradite. So, pursuing the prince through the Malaysian courts would be the best option.

This though might be settled out of court and the prince's filing of a complaint might be a bluff that he is prepared to fight these allegations to the bitter end. Simply, trying to indicate that he is more confident than he really is. That said, maybe his confidence is justified if he really did not perpetrate the conduct being alleged. This won't be known until the process gets into full swing.

I guess abuse is more serious when it is perpetrated against one of your own than it is when you are the perpetrator against someone else.

10 comments:

Harry Nizam H. said...

Hi Rob,
It would be great if Manohara, mom & lawyers would really file a report with the Malaysian Police (???)

By the way, I really admire your & Unspun's passion in writing about Manohara & her case. WOW!
Do you two have any plan to write a book together?

treespotter said...

first of all, both parties filing in their own respective police is a PR game since neither jurisdiction can actually try the case - i doubt the MY court will try the case without the victim and Manohara seems resolute in not going back there (perhaps, understandably).

I for one, hope that the Indonesian police can do simply the most practical - and obvious - rather than attempting to do the improbable which is simply to issue a summon for the named persons to appear in Indonesia.

Nobody had ever really had too much expectation of the authorities (on both side in this particular case).

Rob Baiton said...

Harry...

They could file a report with the Malaysian authorities. I don't know whether they will.

Nope, on the Unspun front.

Tree...

Yes, it is PR and I say as much.

Malaysia could try this case seeing there is an allegation of a crime being committed within their criminal jurisdiction. Whether or not they have a commitment to do so is a different question.

I would argue that Malaysia definitely has jurisdiction. On the other hand, Indonesia does not have jurisdiction for the reasons I alluded to in this post.

Hotman filing a criminal complaint in Indonesia was definitely a PR stunt. No crime has been committed in Indonesia. Even though the victim is Indonesian and now currently resident there, there still has not been any crime committed within the criminal jurisdiction of the Republic of Indonesia.

The Indonesian police would issue a summons for what? To have the prince appear for questioning? The proper place for the investigation is clearly Malaysia as that is where the alleged crime took place, it is where the majority of the witnesses are, and in this day of modern technology Manohara could appear via video link for her interview.

treespotter said...

i completely agree that MY probably have the jurisdiction, but let me get this straight, are you saying there's absolutely nothing Indonesian police can do? Why can't they even issue a summon for questioning, the victim is Indonesian and in Indonesia - the court may not have jurisdiction to try the case, but aren't the police obliged to investigate first (precisely to determine the jurisdiction etc.)?

The police spokesperson had repeatedly went on record saying that Manohara should come to report, BAP and all. I think it's strange - and sad - that in a sexual harassment case, the police seems to be demanding the victim to come forward, if only to claim that they can not do anything anymore. This has nothing to do with the ID Ambassaodr being an ex police chief? yeah, right...

Rob Baiton said...

Tree...

My guess is that Indonesia is going to claim jurisdiction based on the fact that it was an Indonesian national that was the victim in this case.

I am not sure that the KUHP or even the Domestic Violence law purports to exercise jurisdiction where the crime occurs overseas.

In Australia there is sex crimes legislation which allows sex tourists (sexual predators and usually of children) to prosecuted in Australia even if their crimes were committed in a foreign jurisdiction.

Once again, I am not sure that Indonesian law claims that extra-territoriality at this point in time.

Can the police issue a summons as part of an investigation? Of course they can. I do not think Indonesia has jurisdiction to prosecute the case. I did not say that Indonesian police could not investigate.

As I said, let the games begin.

Rob Baiton said...

Tree...

Lemme add a few things for clarity. If I was running Manohara's case. I would file a criminal complaint in Indonesia.

I would accept that perhaps first bite of the apple should be Malaysia. However, I would reserve the right to pursue the matter in Indonesia if Malaysia indicated that it was going to whitewash this whole affair.

I suggested that this was not a case that could argue universal jurisdiction. However, I was playing Devil's Advocate and seeing if anyone would pick me on it (I guess I do not have enough readers with an interest in those things).

I think that arguments could be made that this is torture. And, arguments could be made that torture attracts universal jurisdiction. This might be particularly so when combined with the alleged kidnapping. Whether it would be successful remains to be seen, but it would be worth a shot.

The legal arguments on jurisdiction probably warrant a post of their own...maybe one day!

lawkemb said...

who has jurisdiction in the equally serious kidnapping accusation case??

Rob Baiton said...

Lawkemb...

Nice to see you back! Been busy?

With the kidnapping part of this case, I would have argued that Indonesia could have exerted jurisdiction to a degree and issued orders for the return of Manohara.

This would have required the kidnapping allegations to have been made out (proved).

However, now that Manohara is already physically in the jurisdiction of Indonesia she is no longer in the technical legal sense kidnapped.

There might be a civil action for the deprivation of liberty and some sort of compensation.

However, I would think that the best place for a civil action for claiming damages or other losses would be Malaysia as this is where the prince is and this is where the assets are which would be subject to any order.

If the order was issued in Indonesia, then there are all sorts of enforcement issues to be worked through. Simply issuing the order is no guarantee that Malaysia will go out of its way to ensure enforcement against the prince.

There is the Hague Convention on Child Abduction. However, it has been a while since I have read it (like not since law school) and I cannot remember if it would apply to a child bride. And, whether it would apply to her husband as the alleged perpetrator of the abduction. I would also need to check whether Malaysia and Indonesia are signatories to the Convention.

As I have been consistently saying there are so many interesting legal issues to be explored here.

Thanks for asking. Now, I will have to go and read a little to re-familiarize myself with the legal rules :D

lawkemb said...

Again thanks... yes busy trying to keep up to date!!

i was referring to the kidnapping in Saudi - where she was spirited away from her mum ....by her husband - kidnapping??

Rob Baiton said...

Lawkemb...

A husband can kidnap a wife.

If I am not mistaken, the claim is that they were estranged at the time. And, in an attempt to reconcile the prince invited all on a minor pilgrimage.

After the completion of that they were all to head off in their respective ways, but Manohara's mother and sister were left standing at the airport as Manohara was whisked off to Malaysia.

At least that is how I understand the story so far.

I am sure there is more to come.