US judge poised to rule on Manet case

Alan Parkhouse / Khmer Times No Comments Share:

A district court in California where opposition member Meach Sovannara is attempting to sue Hun Manet, the eldest son of Prime Minister Hun Sen, over his imprisonment in Cambodia will soon decide if it has jurisdiction over acts in Cambodia.
A transcript from the last hearing on February 6 indicates that the judge will soon rule on what’s known as “sovereign immunity,” or simply put, if the US court has jurisdiction over Cambodia.
Circuit judge George H. Wu is recorded as saying: “I can’t see how the plaintiffs are going to be attempting to go against Cambodia in this case. It is – it just seems to me that that is so incredibly problematic.”
In the same transcript, judge Wu is recorded as telling Morton Sklar, Mr. Sovannara’s attorney, that the applicable case law does not support the plaintiff’s argument that the court has jurisdiction over Cambodia, but indicates Cambodia is immune from the suit “because the improprieties of the tortious aspects all have to occur in the United States.”
Christopher Beres, who represents co-defendant Mr. Manet, said: “What the judge is saying is what we’ve been saying all along, that is, that a US court has no authority to judge the acts that allegedly occurred in Cambodia.”
Mr. Beres said the judge must consider the US Foreign Sovereign Immunities Act, or FSIA, under which foreign sovereigns are presumably immune from lawsuits in the US as well as the plaintiffs’ argument that the court has jurisdiction over Cambodia under what’s known as an “enumerated exception” to the FSIA, known in legal circles as “the non-commercial tort exception.”
Under this exception, US courts have jurisdiction over a foreign sovereign, or country, for some types of tort when the damage occurs in the United States.
“The plaintiffs’ reliance on the non-commercial tort exception is flawed because the exception (1) applies to damage ‘occurring in the United States’ and (2) excepts ‘any claim arising out of malicious prosecution [or] abuse of process’.
“Here, the alleged damage occurred in Cambodia and the claims arise out of charges of ‘malicious prosecution’ and ‘abuse of process’. Accordingly, the exception does not apply and Cambodia is protected by the FSIA.
“Also, a claim for intentional infliction of emotional distress is outside the FSIA’s exception for non-commercial torts committed in the United States according to Bawol Cabiri and Efua Cabiri v. Government of Ghana, 165 F3d 193, 2d Cir. (1999).
“Furthermore, the US Torture Victim protection Act [TVPA], which the plaintiff relies upon only applies to ‘individuals,’ which the US Supreme Court has limited to natural persons in Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 1708 (2012).
“Accordingly, the TVPA does not apply to Cambodia.
“I believe the judge knows the law in this area. That he may be willing to determine the issue now and end this attempted lawsuit is a positive development. He has the inherent authority to do so.”   
The next hearing in the case will be on March 30.

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