[21-34] Annalisa Yahanan, Febrian, and Rohani Abdul Rahim

Editorial Office: Faculty of Law, Sriwijaya UniversityJalan Srijaya Negara, , South 30139, . Phone: +62711-580063Fax: +62711-581179 ISSN Print: 2541-5298 E-mail: [email protected]| [email protected] ISSN Online: 2541-6464 Website: http://journal.fh.unsri.ac.id/index.php/sriwijayalawreview

THE PROTECTION OF CONSUMER RIGHTS FOR SAFETY AND SECURITY IN INDONESIA AND

Annalisa Yahanan1, Febrian2, and Rohani Abdul Rahim3

Abstract: Indonesia and Malaysia have a good potency for cooperation in aviation industry. It can be seen in the establishing two aviation companies namely PT. Indonesia Air and Ma- lindo which both are low-cost carrier. These aviation industries are categorized as low-cost car- rier, however safety and security are absolute factors because these are rights for consumers. This article will describe further about safety and security standard; protecting the rights for consumers in connection with safety and Malaysia from the Consumer Protection Law and the Aviation Law. As a result of the research shows that safety standard passenger for air transportation in airport covers information and safety facility in the shape of availability of the emergency safety tools (fires, accidents and natural disasters); information, area and health facility; and healthcare workers. Moreover, safety standards for passenger in an aircraft include information and safety facility in the shape of availability information and the emergency safety tools for passenger in an aircraft. The protection for consumer rights for safe- ty flight in Indonesia as follows: aviation industry has obligation to fulfill minimum standard of safety and security; consumers must be safety from false information which raises concern; air- craft operation which endanger of the passenger; and consumer protection in operating the elec- tronic device which endanger flight. On the other hand, the law of consumer rights in Malaysia relating to aviation are ruled under the Aviation Law as a result of the Warsaw Convention 1929. In conclusion, the verdict of consumer rights related to security aviation begins when the passenger enter to an aircraft, in the aircraft, and by the time they get off the plane. Keywords: aviation safety; consumer rights; protection.

ARTICLE HISTORY : INTRODUCTION Received: Indonesia and Malaysia are neighbour Jan 4, 2017; Reviewed: Jan 11, 2017 Accepted: which have a lot of business cooperation in Jan 18, 2017; Published: Jan 30, 2017 joint venture commercial flights, for exam- 1 1 Faculty of Law, Sriwijaya University, ple PT. Indonesia Air Asia and Palembang-South Sumatera, Indonesia E-mail: [email protected] 1 Kisah Sukses Bos Air Asia, http://kisah-orang 2 Faculty of Law, Sriwijaya University, sukses. blogspot.com/2013/10/kisah-sukses-bos- Palembang-South Sumatera, Indonesia air-asia.html (retrieved: July 14, 2014). In 2004, E-mail: [email protected] Air Asia constitute joint venture enterprise in In- donesia. Air Asia control 49% shares. In Indone- 3 Faculty of Law, National University of sia, Air Asia venture with PT. Awair to perform Malaysia, Bangi, , Malaysia low-cost carrier under the name of Indonesia Air E-mail: [email protected] Asia. For example, Indonesia Air Asia operated using code QZ7558 (CKG-JOG).

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The Protection of Consumer Rights for Aviation Safety and Security in Indonesia and Malaysia

(Malaysia Indonesia).2 Both industrial avia- tition and high risk. Many commercial air- tions are low-cost carrier,3 known as no frill. lines in Indonesia are insolvent because they The joint venture has make a history reflect- do not have ability to compete,8 therefore it ing tight relationship between the two affects to the industrial are unable states.4 to operate.9 The concept of low-cost carrier is en- On the other hand, the role of online joyed not only for high-class income but booking is recognized by to increase also for lower-class income.5 Thus, flight potential growth based on their survey, tariff influences the demand for flight ticket especially for their marketing.10 It can be 6 in Indonesia and Malaysia. Abadi Airlines, PT. and PT. In order to increase the business, one on Indonesia. the hand, the industrial aviation in Indonesia 8 For example , once the aircraft and Malaysia must consider high market crashed it immediately dispersed, no longer in op- 7 eration. Read H.K. Martono and Achmad Sudiro, share, although it is also has intense compe- Hukum Angkutan Udara Berdasarkan UU RI No. 1 Tahun 2009, Cetakan kedua, Rajawali Pers, Ja- karta, 2011, p. 15. 9 Flights companies were declared bankrupt, among 2 Malindo Air is a joint venture between National others: PT. Adam SkyConnection Airlines (Adam Aerospace and Defense Industries (51% share of Air), PT. Bouraq Indonesia Airline; PT. Jatayu Malaysia) and of Indonesia (49% of In- Airlines; PT. Transport; PT. ; donesia), http://www.beritasatu.com/ekonomi/ PT. Indonesia; PT. Mandala Air- 140085-2014 malindo-air-ekspansi-ke-empat- lines Indonesiadan PT. Metro Batavia. PT. Man- negara.html, (retrieved: Dec 25, 2016.) dala Airlines Indonesia was declared bankrupt in 3 LCC concept used the term "No Frill" (low cost) 2011. However Mandala Airline returned to the in the 2009 Law No. 1 on Aviation. Indonesian airline industry after being taken over 4 Malindo Air, syarikat penerbangan kos rendah by the Saratoga Group and Tiger Airways. Thus baru Malaysia, http://www.sinarharian.com.my/ PT. Mandala Airlines Indonesia resumed opera- bisnes/malindo-air-syarikat-penerbangan-kos- tions on April 2012 after stopping operations on rendah-baru-malaysia-1.84114. (retrieved: Apr 24, January 13, 2011 due to the lack of funds and 2016). debt. Saratoga Group acquired the shares of the 5 Kamal Halili, et al., Kajian Polisi dan Perundan- airline Mandala Air of 51%, followed by Singa- gan Berkaitan Penerbangan dan Perkhidmatan, pore airlines, namely Tiger Airways a total of Kode Project: UKM-UP-JKKBG-08-04-017, Fa- 33% and the remaining 16% by existing share- kulti Undang-Undang Universiti Kebangsaan Ma- holders (PT. Mandala Airlines Indonesia) and the laysia, Bangi, Selangor, 2010. p 15. indebted (creditor). See Saratoga Group Kuasai 6 Arya Nugraha, Adam Air, LCC, dan Statistik Mandala Air, http:/bisniskeuangan.kompas.com/ Penerbangan Domestik, http://aryanugraha. read/2011//20/07112748/Saratoga. Group Kuasai wordpress.com/2007/01/04/adam-air-lcc-dan- Mandala Air, (retrieved: July 20, 2016). Batavia statistik-penerbangan-domestik/. (retrieved: Feb Air is declared bankrupt by the Commercial Court 20, 2016.) of Central on January 31, 2013. See Bata- 7 According to the Ministry of Transportation of the via Air Resmi Pailit Bangkrut Stop Operasional, Republic of Indonesia, Bagian Pengembangan http://www.idberitakita.com/2013/. See Annalisa Usaha Pengangkutan Udara Bidang Perusahaan Yahanan, —Liabiliti Syarikat Pengangkut Udara dan Bagian Penerbangan Dalam Negeri Komersial dan Hak Penumpang Berhubung Ke- Berjadwal, Jakarta 2015, there are 16 airlines in lewatan di Bawah Undang-Undang Penerbangan Indonesia, namely PT. Indonesia, PT. Ba- Indonesia, Universiti Kebangsaan Malaysia, Tesis, tik Air Indonesia, PT. Mandala Airlines, PT. Sri- 2015, pp 69-72. wijaya Air, PT. Kal Star Aviation, PT. 10 David Gilbert, David Child & Marion Bennet, —A service, PT. Travel Express Aviation, PT. Indone- Qualilative study of the current practices of ”no sia Air Transport, PT. NAM Air, PT. Mandala frills‘ airlines operating in the UK“. Journal of Airlines, PT. Indonesia Air Asia, PT. Dirgantara Vacation Marketing, volume 7, Issue 4, April Air Service, PT. Lion Mentari Airline, PT. Wings 2001.

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seen in the Middle East, for example, online growing every year. Competition between booking for low-cost carriers must be aircraft enterprises and high demand must supplemented by the airlines.11 have serious concern from the enterprises particularly safety and security because they The industrial aviation in Malaysia also constitute consumer rights and must be improves their consumer service to grow up protected. their industry, for instance Malaysia Airline System (MAS) state industrial aviation, and The protection for good faith purchaser Air Asia, private industrial aviation.12 Air in sale and purchase agreement, in Asia also suffered financial loss as a result Indonesia, are secured under Article 1341, of the flight accident in AirAsia Indonesia 1491, 1492 the Indonesian Civil Code. Fur- QZ8501 route -Singapura on 28 thermore, the agreement must be rational December 2014 and the disappearance of and should be implemented in good faith as MH 370 on 8 March 2014 from Kuala provided in the Article l338 paragraph (3) Lumpur to Beijing. the Indonesian Civil Code. The settings of those chapters are applied for aircraft con- The growing of industrial aviation in 16 Malaysia can be seen by establishing some sumers to get the aviation safety right. industrial aviations, for example Berjaya Today every country are challenged to Air, , , Malindo Airways, improve their science and technology. The MASwings, MHS Aviation, Air, and mastery of science and technology in every .13 sectors will affect to increase complex in all 17 such as in aviation sector. Time Aircraft business is more preferable for fields, efficiency and technology advancement in consumer than other transportation system. aircraft transportation will give benefit to The most reason for consumer is time 18 14 enterprise aviation‘s earnings. efficiency. Thus, aircraft transportations both in Indonesia15 and Malaysia are Benefit are the first aim for the enterprises in Indonesia and Malaysia, 11 James Rajasekar, Unnikammu Moideenkutty, however the protection for rights such as —: Challenges of repositioning through business level strategy“, Asian Journal of Man- safety and security must not be abandoned. agement Case, Volume 4, Issue 2, 2007. p 120. 12 Sen Ze & Jayne Ng, The Air Asia Story, Kisah Maskapai Tersukses di Asia, Ufuk Publishing ports in Indonesia in 2014 reached 72.6 million House, Jakarta, 2007. pp 22-23. people, up 5.6% from 2013 as many as 68.5 mil- 13https://id.wikipedia.org/wiki/Daftar_maskapai_pene lion people. See http://www.beritasatu.com/ eko- rbangan_Malaysia, (retrieved: Dec 17, 2016). nomi/332030-2016-pertumbuhan-penumpang- 14 Wamenhub: Transportasi Udara Lebih Diminati udara-stagnan.html, (retrieved: Jul 28, 2016.) Dibandingkan Darat, http://indosuryaresearch. 16 Hamdaliah, —Perlindungan Hukum Bagi Pihak com/details.php?go=news&id=6052_Indosurya- Pembeli yang Beritikad Baik dalam Jual Beli Research-news-Wamenhub:-Transportasi-Udara- Tanah“, Lambung Mangkurat Law Journal, Lebih-Diminati-Dibandingkan-Darat (retrieved: Volume 1, Issue 2, September 2016. p 167. Aug 10, 2014). 17 Arman Anwar, —The Principles Of Liability On 15 Central Statistics Agency (BPS) states that the Telemedicine Practices“, Pattimura Law Journal, number of air passengers on January-October Volume 1, Issue 1, September 2016. P 14. 2015 reached 67.46 million, up 12.75% compared 18 E.Saefullah Wiradipradja, —Tanggung jawab peru- to the same period in 2014 amounted to 59.83 mil- sahaan penerbangan terhadap penumpang menu- lion. While the number of air passengers both do- rut hukum udara Indonesia“, Jurnal Hukum Bis- mestically and internationally in a number of air- nis, Volume 25, Issue 1, 2006. p 3.

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The Protection of Consumer Rights for Aviation Safety and Security in Indonesia and Malaysia

These rights, safety and security factors, are violation of law through utilization of compulsory for every enterprises in all human resources, facilities as well as services (maximum, middle and minimum procedures.22 Furthermore, the definition of services or no frill).19 security and safety in the Government The consumer principally are people Regulation Number 3 of 2001 on Aviation who must have protection from the law. Security and Safety are a situation for aircraft safety and security operations related Thus, the most appropriate approach in this 23 article is normative and authority approach, to flight plan. Furthermore, aviation namely law is positioned to protect security is a situation realized through free flight operations from disturbances and/or consumer as a weak party and need justice 24 20 violations against the law. (equal possition) against other party, the Aviation safety enterprises as a trader. Consumer stipulates in the Aviation Law 2009 is a situation in the enterprises provide safety which suitable accordance with safety stipulations of air/space territory, aircraft, airports, flight with their requirements and provide 25 21 navigation and others facilities. optimum services. Moreover, Aviation safety according to the This article will discuss minimum Government Regulation on Aviation services for safety and security in Security and Safety is condition is commercial flight. Moreover, the regulation realization of smooth flights related to concerning about protection to consumer operations procedures and technical rights in the light of safety and security in feasibility requirements towards facilities Indonesia and Malaysia are an integral part and infrastructure.26 of this article. Aviation security and safety have ANALYSIS AND DISCUSSION important and strategic roles in the aircraft management, thus a state has an authority A Standard of Aircraft Passenger for the aircraft management. Government is Handling Prosedures for Safety and the representative of the state which has a Security in Indonesia role to develop it in the integrated security The safety and security for consumer are and safety civil aviation service system. The provided in the Law Number 1 of 2009 developments by the government include concerning Aviation (Aviation Law 2009). arrangements aspect, controling and Aviation security means a situation supervising to the safety and security system providing protections to aviation against any for aviation security and safety.27

19 The 2009 Aviation Law, Article 97 states: (1) the services from schedules commercial air 22 The 2009 Aviation Law, Article 1 (49). transportation shall at least be categorized in: a. 23 The Governement Regulation of the Republic of full services; b. medium services; or c. no frills. Indonesia No. 3 of 2001 on Aviation Safety and 20 Sakina Shaik Ahmad Yusoff, Rahmah Ismail and Security, Article 1 (1). Shamsudin Suhor (sunt.), Pengguna dan Undang- 24 Article 1 (2), Note 23. undang, Penerbit Universiti Kebangsaan Malay- 25 Article 1 (48), Note 23. sia, Bangi, 2015. p 23. 26 Article 1 (3), Note 23. 21 Rahmah Ismail et al., (sunt.), Undang-Undang 27 The Explanation of The 2009 Aviation Law. Avi- Pengguna dan Keadilan Sosial, Penerbit Universi- ation is an integrated system consisting of the use ti Kebangsaan Malaysia, Bangi, 2015. p 25. of airspace, aircraft, airports, air transport, air na-

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For implementing Article 100 the responsibility for the safety is airport Aviation Law 200928 on scheduled organizer; commercial air transportation entity29 is b. Information, area and healthy stipulated under the Minister of services (related to information, Transportation Regulation No. 38 of 2015 availability of area and healthy concerning A Standard Services for Aircraft services). For example, the Passenger in Indonesia.30 availability of health services in the area, the information for health According to the Minister of facility is easily visible and Transportation Regulation, a standard of affordable, the health facility, such as aircraft passenger services in airport are 31 feasible to use and not expired first handled by ground handling service, 32 aid supplies and operating hours of include: health services in accordance with

1. Safety services, include: the operating hours of the airport;

a. Information and security c. Health care workers (the person on (information of availability rescuing duty to handle emergency situations). emergency tools (fire, accident, or For example, uniformed medical natural disaster). For example: road personnel using identification card markings, warning traffic light, fire that is easily visible. extinguishers (hydrant pilar and Meanwhile, the type of security APAR), emergency door, emergency services, include: exit sign, emergency lamp, fire a. The security facility (security facility detection and alarm system and at the terminal and surrounding area assembly point. A party who has to prevent crimes). For example, proper security facilities and services to prevent crimes namely the vigation, safety and security, environment, and support facilities and other public facilities. existence of CCTV with recording 28 Article 100, Note 22, states that further provisions data storage duration of minimum 30 on scheduled commercial air transportation entity days; shall be stipulated under Ministerial Regulations. 29 HK. Martono, Kamus Hukum dan Regulasi Pener- b. The security officer (officers keeping bangan, Edisi Pertama, PT. Raja Grafindo Persa- order and security at airports). For da, Jakarta, 2007. p 306. 30 Example, Aviation Security or The Minister of Transportation Regulation No. 38 of 2015 concerning A Domestic Air Passenger AVSEC using the identity card that is Standard Services in Indonesia, Article 3 (1) states easily visible. that service standards of domestic air passengers at the airport, include: security services; safety, acce- c. Information security complaint sibility, comfort, convenience and equality. The (information to complaint for Regulation of the Minister of Transportation No. passenger related to security issues). 38 of 2015 is the implementation of Article 100 of the 2009 Aviation Law. For example, information in the form 31 Abdul Majid and Eko Probo D. Warpani, of banner contains information where Ground Handling: Manajemen Pelayanan Darat Perusahaan Penerbangan, PT./ Raja Grafindo, to complaint and a phone number Jakarta, 2009. p 6. and/or SMS (Call Center) at a 32 Apendix I The Minister of Transportation Regula- strategic and highly visible space. tion No. 38 of 2015 on 13 February 2015.

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2. A standard of safety services for air maintenance of aircraft and aircraft engines, passenger in aircraft, covers:33 flights departure, checking the cabin, cargo a. Information and safety equipment processing and operational security as well (the availability of information and as ground handling. The aircraft company if the safety equipment for air it has met security standards and safety, will passenger). For example, information receive a certificate Operational Safety and safety equipment that is easily Audit (IOSA) from IATA. This means that visible and affordable, include: the company has fulfilled the standard of emergency instructions card, flight safety and security International.35 safety book, prayer cards, life jacket The improvement of aviation safety in accordance with passenger level is necessary for Indonesia should be in capacity, oxygen masks equal to 36 line with international aviation standard. passenger capacity, lanes and Some airlines in Indonesia have received emergency doors. This equipments IOSA certification such as PT. Garuda are functionable and in good 37 38 Indonesia, and PT. Air Indonesia. condition. Meanwhile, PT. , PT. b. Medical equipment (the availability 39 Citilink and (Lion Air, of medical equipment used for , Malindo Air, Thai emergency situations). For example, Lion) officially registered in IATA medical equipment in the form of Operational Safety Audit (IOSA) and IATA First Aid. Standard Safety Assessment (ISSA). Before the plane took off, flight attendants will demonstrate the use Consumer Rights Related to Aviation of such equipment in case of Security and Safety in Indonesia emergency situation and the storage In Indonesia, commercial air transpor- of the equipment. tation has an important role. It is because Concerning to aviation safety and Indonesia is located between two security, every aircraft enterprise must be continents (Asia and Australia) and two 34 enlisted by IATA for Operational Safety oceans (Indian and Pacific). Thus, this Audit (IOSA) as well as IATA Standard geographical situations make the aircraft Safety Assessment (ISSA). IOSA is an business has a strategic position in operational safety audit globally focused to operational quality as well as safety 35 https://id.wikipedia.org/wiki/Garuda_Indonesia, management and supervision. For audit, (retrieved: Dec 28, 2016). IOSA responsible for flight operation, 36 Ridha Aditya Nugraha, Improving Aviation Safety in Indonesia: How many more accident, organization and management system, Hasanuddin Law Review, Volume 2, Issue 3, December 2016. p 344. 37 https://id.wikipedia.org/wiki/Garuda_Indonesia, 33 Apendix II The Minister of Transportation Regu- (retrieved: Dec 28, 2016). lation No. 38 of 2015 on 13th February 2015. 38 http://www.harnas.co/2016/11/18/batik-air-terima 34 IATA is The International Air Transport Associa- -sertifikat-iosa, (retrieved: Dec 28, 2016). tion, namely an international air transport organi- 39 http://www.beritasatu.com/ekonomi/343199-tiga- zation comprising several airlines. IATA has the maskapai-berupaya-dapatkan-sertifikat-iosa.html headquartered in Montreal, Canada. (retrieved: Dec 28 , 2016).

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relation between nations,40 as well as a. Flight operation Indonesia already has air transport The Operation of an aircraft may agreements with 67 countries including endanger the safety of passengers as it fly Malaysia.41 beyond the specified path, do not carry safety equipment, and fly over the Scheduled commercial air transport airspace prohibited according to Article consumers certainly wish to arrive safety at 53 the Aviation Law 2009.44 their destination that is the consumer right. If Article 53 Safety and security arrangements for the Aviation Law 2009 is violated then, consumer are stipulated in Article 4 the Law the airlines penalized imprisonment of 2 No. 8 of 2009 on Consumer Protection (two) years and a maximum fine of Rp 500,000,000.00 (five hundred million which mention the right to safety, security 45 and convenience in using the services. The rupiah). In the explanation of Article users can be considered as consumers 53 the Aviation Law 2009 noted that 42 activities that endanger the safety of such aviation. But on the other hand, consumers aircraft, cover: flying outside specified also have obligations to read or follow path, do not carry safety equipment, and instructions and procedures of aviation 43 flying over a forbidden area. services, for security and safety. Related to the aviation safety and The Protection of consumer rights security, a pilot as captain on the flight related to safety flight, described as follows: shall be dismissed for violating aviation safety and security procedures because 40 HK. Martono, Hukum Penerbangan Berdasarkan UU RI Tahun 2009, Bagian Pertama, CV. Mandar he potentially endangers other passengers Maju, , 2009. p 4. and flight attendants, such as the 41 Note 40, p 5. 42 The 1999 Law No. 8 on Consumer Protection, Article 4 states: Consumer rights are: a). The right to comfort, security, and safety in consumption of goods and/or services; b). The right to choose of goods and/or services and obtain goods and/or services in accordance with the exchange rate and conditions and guarantees promised; c). The right to correct, clear and honest information about the 44 Article 53, Note 22 states: (1) Anybody shall be condition of goods and/or services;d). The right to prohibited from operating and/or flying an aircraft be heard their opinions and complaints on goods that may endanger aircraft safety, endanger the and/or services used; e). The right to advocacy, safety of aircraft passenger, crews and cargo, protection and settlement disputes of consumer endanger the safety of third party, disturb public protection; f). The right to receive guidance and security and order; and or damage orher people‘s consumer education; g). The right to be treated or propertiy(es). (2) Anybody violating the serviced properly and honestly and not discrimina- provisions as meant in item (1) shall be imposed tory; h). The right to obtain compensation, com- with administrative sanction, as follows: a. pensation and/or reimbursement, if the goods freezing of certificate; and/or b. revocation of and/or services received are not in accordance certificate. with the agreement or not as accordingly; i). The 45 Article 411, Note 22 states that anybody flying or rights with the provisions stipulated in other laws operating an aircraft which is intentionally and regulations. endangering the safety of the aircraft, passenger 43 Article 5 (1), Note 42 state that the obligations of and goods, and/or citizens or damaging properties the consumer are: a. To read or follow instructions of other people as meant in Article 53 shall be and procedures about the using of information or condemned with imprisonment for a maximum 2 utilization goods and/or services, for security and (two) years and a find of maximum amount of Rp. safety. 500.000.000,00 (five hundred million rupiahs).

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dismissal of Citilink Airline‘s pilot on are 15 (fifteen)49 cases of jokes related to December 30th, 2016.46 bombs threat between the years at several b. Flight safety standards airports in Indonesia. Rights for passenger related to aviation Currently in Indonesia, irresposible safety and security under the Aviation hoax about bringing a bomb onœboard Law 2009 stated that airlines in aircraft has become popular among Indonesia shall comply with the passengers.50 Although it is questionable standards of aviation safety and how the implementation the sentence to security.47 Thus, the airlines in Indonesia the passengers (consumers) who spread with any type of service (no frill) shall false information, but According to comply the standards of aviation safety Article 437 the Aviation Law 2009, and security.48 Although it is a parties that led to false information (a minimum service flight, passenger joke) at the airport and in an aircraft may safety remains a priority. be subject to a maximum of one year c. Incorrect information imprisonment.51 At the end of 2015 to 2016 was often heard incorrect informations associated with bombs at the airport. In respect of incorrect information about the presence of bombs at the airport, the Aviation Law 2009 provides preventive protection to consumers related to aviation safety and security as user services. The Ministry of Transportation of the Republic of Indonesia noted that there

46 Pilot Citilink yang Diduga Mabuk Dipecat, http://news.okezone.com/read/2016/12/30/337/15 49 Informasi Bom Penerbangan Komersial di 79633/pilot-citilink-yang-diduga-mabuk-dipecat. Indonesia: Berita Bohong Mengganggu (retrieved: Jan 3, 2016.) Keamanan dan Kenyamanan Penumpang. http:// 47 Article 98, Note 22 states: (1) the scheduled www.hukumonline.com/berita/baca/lt568e24c702 commercial air transportation business entity bd1/waspada-bercanda-soal-bom-di-pesawat-bisa- providing service as meant in Article 97 item (1) dipenjara. (retrieved: Jun 20, 2016.) points b and c shall be a business entity with low 50 Ridha Aditya Nugraha and Lalin Kovudhiku- cost carrier basis. (2) scheduled commercial air lrungsri, Aviation Legal Issues in Indonesia and transportation business entity as meant in item (1) Thailand: Towards Better Passengers‘ Rights in shall be obligated to meet aviation safety and ASEAN, Lokakarya Asosiasi Pengelola Jurnal secutirity standard. Hukum Indonesia, Fakultas Hukum Universitas 48 Article 97, Note 22 states: (1) the services from Indonesia, Depok, Nov 21th 2016. P 13 scheduled commercial air transportation shall at 51 Article 437 (1), Note 22 states that anybody least be categorized in: a. full services; b. medium providing false information endangering aviation services; or c. no frills. (2) the services as meant in sefety as meant in Article 344 point e, shall be item (1) point b is the minimum services given to condemned with imprisonment for a maximum 1 the passenger during flight. (one) year.

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Table 1 Information of Fake Bomb at the Airport in Indonesia Date event Initial Airline Destination April 29 th, 2015 IY ID6870 Cengkareng - Palembang May 1st,2015 NA Lion Air JT353 -Cengkareng May 4 th, 2015 SMS. Lion Air J973 - May 7 th, 2015 SS Lion Air JT0973 Batam-Cengkareng May 30th, 2015 BP Lion Air JT330 Cengkareng-Palembang September 7 th, 2015 JH Lion Air JT770 Cengkareng- September 30 th, 2015 FJZ Citilink QG143 Kualanamu-Halim Perdanakusuma Oktober 11th, 2015 RI Lion Air JT775 Sam Ratulangi Manado- Cengkareng December 2nd, 2015 NP Lion Air JT706 Surabaya-. December 24 th, 2015 K Lion Air JT706 Cengkareng-Taipei December 25 th, 2015 H Lion Air JT544 Cengkareng- December 26 th, 2015 EH, F, Batik Air ID6541 -Cengkareng M December 31st, 2015 AS Lion Air JT536. Cengkareng-Solo January 3rd, 2016 JM Lion Air JT663 -Ujung Pandang January 4 th, 2016 SWKS Airfast VS221 Surabaya-Timika Sources: The Ministry of Transportation of the Republic of Indonesia, 2015-2016.

d. Electronic devices operation in a maximum fine of Rp. 200,000,000. aircraft (two hundred million rupiah).53 In Indonesia, the Aviation Law 2009 In addition, in order to maintain safety set the prohibition the operation of and security of the passengers before electronic equipment by passengers in take-off, the flight attendants demon- the aircraft during flight. These acts strated the use of safety devices and may endanger flight safety and secu- provide information to the passengers rity and disrupt flight navigation.52 Vi- about how to open windows and doors olation of the law may subject to im- in case of emergency. prisonment for a period of two years or e. Passport Passenger safety when enter international airport is also governed by Article 8 (1) of the Law No. 6 of 2011 on Immigration, stated that every 52 Article 54, Note 22 states that any person during flight on an aircraft shall be prohibited to: 53 Pasal 412 (5), Note 22 states that any individual a.conducting behavior thaat may endanger during flight onboard an aircraft operating aviation safety and security; b.violating in-flight electronic device(s) that is disturbing flight procedures; c.taking or damaging aircraft navigation, as meant in Article 54 point f shall equipment that may threaten safety; be condemned with imprisonment for a d.conducting a-social behavior; e.disturbing maximum 2 (two) years or a fine of a peacefulness; and/or f.operating electronic maximum amount of Rp. 200.000.000,00 (two devices that may disturb flight navigation. hundred milion rupiahs).

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The Protection of Consumer Rights for Aviation Safety and Security in Indonesia and Malaysia

person entering or leaving Indonesia program in accordance with the territory is required to have a valid mechanism.56 passport. Nevertheless, forgery of the passport may also occur because of the Consumer Rights Related to Aviation high demand of migration and driven Safety and Security Legislation In Ma- by the activity of document forgery laysia syndicate at national and international Safety is one of the rights of consumers as 54 level. John F. Kennedy said (President of the Passport is a person's identity and a United States of America) in a hearing of security tool for a country to filter out the US Congress known as the Consumer 57 people who are not allowed such as illegal Bill of Rights (Kennedy 1962). Kennedy immigrants and criminals into the territory acknowledges that consumers are the larg- of Indonesia.55 Thus, the consumer rights est economic group in a country that will related to aviation safety are guaranteed receive the impact of every public and pri- 58 under the Law No. 6 of 2011 on Immigra- vate economic decision tion.One function of immigration is the Safety for consumer in Malaysia is set duty of state administration for services under the User Protection Act 1999 [the and public protection (the explanation of Act 599], in Part III of the safety of goods Article 3 of the Law No. 6 of 2011 on and services, in Article 19 states that the Immigration). Minister may establish safety standards in Biometric Equipment (validation and respect of services or service levels and measurement using biological characteris- may specify different safety standards for tics) used in most airports around the goods and services or classes of different world as a consumer safety system at the goods and services. exit and entry of a country aims to: Thus, the regulation of safety services i. the program of aviation security in the may also be based on this Article. Fur- international level (ICAO- thermore, in Article 20 mentioned that no International Civil Aviation one was allowed to offer or advertise ser- Organization), ii. Standards for flight security measures,

iii. set the security program quality 56 Rohani Abdul Rahim, et.al. Sekuriti di Pintu services and training, and Masuk Lapangan Terbang: Isu, Peraturan dan iv. determine who has the responsibility Perundangan Malaysia dalam Kamal Halili Hassan (sunt.) Buruh Asing dan Migrasi-Isu Pe- for coordinating and monitoring the rundangan, Penerbit Universiti Kebangsaan Ma- implementation of aviation security laysia, 2015. pp 39-53. 57 Four consumer rights in court in the United States Congress, known as the Consumer Bill of 54 Rohani Abdul Rahim, et al., Pemalsuan Doku- Rights, namely the right to safety, right to be in- men: Isu dan Perlaksanaan Perundangan Imi- formed, the right to choose, and the right to be grasi dalam Kamal Halili Hassan (sunt.) Buruh heard. Asing dan Migrasi-Isu Perundangan, Penerbit 58 Note 20, dikutip Oleh Sakinah Shaik Ahmad Universiti Kebangsaan Malaysia, 2015. pp 191- Yusoff, Rahmah Ismail dan Shamsuddin Suhor, 108. Penerbit Universiti Kebangsaan Malaysia, Ban- 55 Note 5. p 132. gi 2015. p 14.

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vices that do not comply with safety stan- related to aviation in Malaysia, for exam- dards prescribed under article 19. ple the Air Transportation Law 1974 (amendment) 2007 [the Act 148] is a Consumers struggle has attracted regulation to enforce the conventions62 government attention to change legislation based on consumer protection.59 In the with regard to air transport and to organize interests of consumers of goods and ser- the provision related to incidental issues. vices, the Seventh Malaysia Draft (the These rules are to oversee the rules and policies established in the flights contract RMK 7th) proposed a formulation of the 63 Consumer Protection Act 1999 to ensure provided by airlines and passenger. safety for consumers when using the ser- One form of protection control of vices. The government shall amend the consumer rights for aviation safety in Ma- Consumer Protection Act to provide ap- laysia is the role of the Department of propriate and efficient mechanism for con- Aviation led by the Director of Civil Avia- sumers to make claims in case of fraud, tion which is expressly stated in Article 2 injustice and a mistake in a transaction (the [c] the Law on Civil Aviation 1969, name- RMK 7th: Chapter 16).60 ly to ensure the development of civil avia- tion safety and orderly throughout Malay- In this case the issue of consumer sia. rights associated with concept of safety flight and flight instruments at national and For controling aviation security, the international level.61 Ministry of Transport can create rules to guarantee a safety flight and safety for Safety is the consumers right should passengers from harm as defined in Article be protected by the service provider in 3 [i] the Civil Aviation Act 1969 which case of emergency. Failure to comply the states: consumer rights generate responsibility to the service providers, but consumers can "In general, to ensure the safety, also be responsible if they are breaking the efficiency and regularity of aircraft law. and the safety of aircraft, persons and cargo in it and prevent aircraft from Malaysia has ratified and signed sev- things that harm people and their eral major conventions, namely, the War- property“ saw Convention of 1929, the 1944 Chica- go Convention and the Montreal Conven- The implementation to ensure safety tion 1999 likewise with Indonesia. The flight and passengers when check in at in- International conventions have been used ternational airport where passengers will as a reference to create several legislations pass inspection of biometric machine that can match fingerprint, face shape, eye iris 59 Note 20, p 25. tissue, hand, voice patterns, keystroke dy- 60 Zeti Zuryani Mohd Zakuan, Sakina Shaik Ah- mad Yusoff, and Rahmah Ismail (sunt.), Akta Perlindungan Pengguna 1999 (Akta 599) Liabi- 62 Certain Conventions is an adaptation from the liti Sivil Peniaga di Malaysia, Penerbit Univer- Warsaw Convention and the Montreal Conven- siti Kebangsaan Malaysia, Bangi 2015. p 25. tion. 61 Akta Penerbangan Awam 1969 [Akta 3], Akta 63 Preamble Akta Pengangkutan Melalui Udara Pengangkutan Melalui Udara 1974 [Akta 148]. 1974.

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The Protection of Consumer Rights for Aviation Safety and Security in Indonesia and Malaysia

namic and signature.64 Meanwhile, some 4. The Airport and Aviation Services legislation on flights in Malaysia is go- Law 1991 [Act 467], is a law to verned by the following rules: protect assets, rights and obligations of the Government of Malaysia 1. Civil Aviation Act 1969 [Act 3]. This relating to civil aviation in a rule services to regulate the national company, to make the provision of aviation law such as the role of the finance for the company, to provide Director General of Civil Aviation, related to staff and for other related licensing airlines and so on. matters. 2. The Air Transport Act 1974 [Act 148] 5. The Law Regarding to the is a specific law to enforce the International Interests In Aircraft Convention related to air transport 2006 [Act 659], is an act to and to provide things associated implement the Convention on therein Aviation, and the Protocol of the 3. The Act of Error Flights 1984 [Act Convention on International Interests 307] is a specific law to enforce the on aviation to Specific Matters in the Convention on errors and other acts Aircraft, and the similar rules. It was committed in aircraft, signed in signed in Cape Town on 16 on September 14, 1963. Also November 2001. following conventions: the 6. The Civil Aviation Regulations 1996. Convention for the Suppression of Unlawful Seizure of Aircraft signed at CONCLUSION The Hague on 16 December 1970, the Convention for the Suppression of In the context of consumer protection as- Unlawful Acts Against the Safety of sociated with consumer rights of aviation Civil Aviation signed in Montreal on safety in Indonesia and in Malaysia, the September 23, 1971, and the Protocol appropriate measures should and can be for the Suppression of Unlawful Acts taken to achieve justice in order to protect of Violence at Airports Serving consumer rights related to aviation safety International Civil Aviation, agreed at and security. The Consumer Protection Montreal on February 24, 1988. Act and the Aviation Law taking side to the consumer must be clear. The interpre- tation and scope of protection in the law should not be an instrument for exploiting 64 Biometrics is an innovative technology used for the consumers. The formulation in the law fast authentication at the airport on an International flight. Parts of body that can be must be balanced between consumers and used in the Biometric machine are fingerprints, aviation company. The consumer protec- facial features, iris tissue in the eye, hand, voice tion laws in Indonesia and Malaysia are patterns, keystroke dynamic and a signature. challenging a sophistication of technology Proses Biometrik di Imigrasi Bandara Cengkareng Baru Berlaku Hari Ini, and the impact of globalization. http://oto.detik.com/read/2010/03/31/123419/13

29369/10/proses-biometrik-di-imigrasi-bandara- cengkareng-baru-berlaku-hari-ini. (retrieved: Jan 3, 2016).

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