Hasanuddin Law Review Vol. 2 Issue 3, December (2016)

Volume 2 Issue 3, December 2016: pp. 328-348. Copyright © 2015- 2016 HALREV. Faculty of Law, Hasanuddin University, , South , . ISSN: 2442-9880 | e-ISSN: 2442-9899. HALREV Open Access at: http://pasca.unhas.ac.id/ojs/index.php/halrev Hasanuddin Law Review is licensed under a Creative Commons Attribution 4.0 International License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.

Improving Safety in Indonesia: How Many More Accidents?

Ridha Aditya Nugraha German Aviation Research Society, Berlin, Germany; Air Power Centre of Indonesia, , Indonesia. E-mail: [email protected]

Submitted: Sep 15, 2016; Reviewed: Nov 21, 2016; Accepted: Dec 4, 2016

Abstract: Numerous and consecutive aircraft accidents combined with a consistent failure to meet international safety standards in Indonesia, namely from the International Civil Aviation Organization and the European Aviation Safety Agency have proven a nightmare for the country’s aviation safety reputation. There is an urgent need for bureaucracy reform, harmonization of legislation, and especially ensuring legal enforcement, to bring Indonesian aviation safety back to world standards. The Indonesian Aviation Law of 2009 was enacted to reform the situation in Indonesia. The law has become the ground for drafting legal framework under decrees of the Minister of Transportation, which have allowed the government to perform follow-up actions such as establishing a single air navigation service provider and guaranteeing the independency of the Indonesian National Transportation Safety Committee. A comparison with Thailand is made to enrich the perspective. Finally, foreign aviation entities have a role to assist states, in this case Indonesia, in improving its aviation safety, considering the global nature of air travel. Keywords: Aircraft Accident; Aviation Safety; Legal Enforcement DOI: 10.20956/halrev.v2i3.321

INTRODUCTION Through its audit in 2007, followed by the Sadly, aircraft accidents continue to occur Federal Aviation Administration of the Unit- on a regular basis in Indonesia. It seems un- ed States (FAA) and the European Aviation stoppable. While aircraft accidents from the Safety Agency (EASA), a conclusion has neighbouring ASEAN countries such as the been made that Indonesian aviation safety Philippines (which is also an archipelagic is below international standards. A ban or country), Thailand, , and ‘sanction’ towards Indonesian aviation is the remain a comparatively rare occurrence, it next potential step. A reprieve however came seems that has become in August 2016 when the FAA increased In- synonymous with accidents. donesia’s status back to level one - or the As a consequence, currently the world, highest standard. through the perspective of International Substandard aviation safety in Indone- Civil Aviation Organization (ICAO), has sia occurs due domestic obstacles to provid- seen flying in Indonesia as abnormally risky. ing proper legal enforcement, bureaucratic

328 Hasanuddin Law Review Vol. 2 Issue 3, December (2016) reform, and sufficient human resources that member states, in particular Thailand who are the result of a legal framework that has currently shares the same situation. not kept pace with the rapid development of the Indonesian aviation business. Thus many ANALYSIS AND DISCUSSION Indonesian may be fully aware that Aircraft Accidents in Indonesia within the they are not operating in the safest possible Last Decade manner, but currently lack sufficient gov- Numerous consecutive tragedies in the In- ernmental guidance and means to rectify the donesian aviation world occurred within situation. This is a gap that must be solved the past years. Just recently, in April 2016, immediately for the sake of all pas- a -800 Air collided during sengers’ lives. take-off on the runway with an ATR 42-600 The situation has spurred the Indo- operated by TransNusa Air Services at Jakar- nesian government to take improving ta Halim Perdana Kusuma Airport. Accord- aviation safety more seriously through ing to a press release shortly after consecutive and well planned domestic the incident, its aircraft had been cleared for action and international cooperation. With- take off, but collided with TransNusa’s air- out question the Indonesian authorities craft that was being towed by a tug.1 For- face a hard task to show the world that the tunately, there were no injuries or fatalities safety level is already improved after the within with this accident, ‘only’ damage to Indonesia AirAsia QZ8501 tragedy, which both aircraft. was compounded within a half year with In December 2014, Indonesia AirA- the fatal Service Flight 257 sia Flight QZ8501 from to Sin- and MV7503 accidents in 2015; gapore crashed into the Sea, killing all and also numerous ‘minor’ accidents like 162 people on board. Bad weather in the skidding. area was first speculated as the main cause In order to provide a comprehensive of the accident for the unfortunate Airbus analysis, this article shall begin with A320-200. During a press conference held describing the history of aircraft accidents by the Indonesian Minister of Transportation in Indonesia within the last decade and a few days later, it was announced that the the country’s current aviation safety level aircraft climbed at a speed beyond normal according to international standards. Fur- before it stalled.2 A year later, the National thermore, the government efforts to improve Transportation Safety Committee of Indone- aviation safety level since 2007, namely sia (NTSC) released the final investigation since Indonesia began to be banned, through 1 Aviation Safety Network (2016). Accident Description. the implementation of new legal framework Available from: http://aviation-safety.net/database/ record.php?id=20160404-0 [Accessed August 18, shall be described; along with current 2016]. international cooperation. At the end, the 2 Kompas.com (2015). Menhub Jonan Ungkap Pesawat AirAsia QZ8501 Alami “Stall”. Available from: http:// Indonesian efforts improving aviation safety nasional.kompas.com/read/2015/01/20/20192001/ Menhub.Jonan.Ungkap.Pesawat.AirAsia.QZ8501. could become a lesson for other ASEAN Alami.Stall [Accessed August 18, 2016].

329 Hasanuddin Law Review Vol. 2 Issue 3, December (2016) report which concluded that the cracking of port, killing twenty-two people on board.5 one aircraft components followed by incor- Undoubtedly these aircraft accidents have rect flight crew action handling the situation raised a serious question of the level of safety were the contributing factors to the crash.3 within the current Indonesian aviation world Another two aircraft accidents also oc- that must be improved as soon as possible. curred in 2015. These accidents were Triga- Following the ASEAN Open Skies na Air Service Flight 257, crashed in Papua, agreement which came into effect on 1 Janu- followed by Aviastar MV7503 that crashed ary 2015, more scheduled commercial flights in Sulawesi, where both happened ‘only’ between member states will be held. In order within two months of each other in August to maximize the commercial expansion of and October 2015. Unfortunately, there were within this region, such no survivors from these accidents thus fur- as Indonesia, , , and ther increasing the death toll within the re- , safety issues must be made as cent history of Indonesian aviation. Unlike a main priority to be solved. Failure to do so AirAsia QZ8501, both flights served domes- means in the ASEAN Open Skies Indonesian tic routes and could be classified as pioneer airlines and their supporting industries will flights. An additional accident happened on a be merely spectators, as travellers choose joy flight where a Sukhoi RRJ-95B crashed other more established member states’ air- into Mount Salak in May 2012 when they lines with much better safety records when were introducing the new aircraft. Again, no traveling to and from Indonesia. Serious survivor in this crash where forty-five lives work must be done and quickly by the In- were lost. donesian government if the aviation safety These fatal accidents reminded the level within this country is to be recognized public of the KI-574 accident in on par with other countries. 2007 which had also caused concern of the aviation safety level in this country. A Boe- Today’s Indonesia’s Position in the Avia- ing 737-400 lost contact near Majene and is tion Safety World: Further and Further believed to have crashed into the sea, killing Behind all ninety-six people on board. Unfortunate- Considering the number of accidents in re- ly, it was Singapore rather than Indonesia cent years, it is not surprising if almost all that first noticed the aircraft disappearance Indonesian airlines have been banned from due their advanced navigation systems.4 Still flying to and through (EU) within the same year, GA- airspace since July 2007.6 The EU ban was

200 which served Jakarta- route 5 Hukumonline (2007). KNKT: Kecelakaan Garuda di Yogyakarta Murni Human Error. Available from: http:// crashed while landing at Adisutjipto Air- www.hukumonline.com/berita/baca/hol17842/knkt- kecelakaan-garuda-di-yogyakarta-murni-ihuman-errori [Accessed August 19, 2016]. 3 The National Transportation Safety Committee of 6 Four Indonesian airlines, namely Garuda Indonesia, Indonesia. (2015). Aircraft Accident Investigation , Ekspres Transportasi Antarbenua, Report No. KNKT.14.12.29.04, p. 13. and Indonesia AirAsia, are excluded when EU lifted 4 Chappy Hakim. (2009). Cat Rambut Orang Yahudi. their ban under special conditions in 2010. Just recently Jakarta: Kompas, p. 77. in 2016, three other airlines, namely Batik Air, Citilink,

330 Hasanuddin Law Review Vol. 2 Issue 3, December (2016) also a follow-up action after the FAA down- not comply with regulations; and also, too graded Indonesia’s rating from category easy in issuing operating licenses to new air- one to category two in April 2007;7 which lines.10 was only restored to the highest safety level Currently the ICAO has a method to again in August 2016. This action caused assess each country’s aviation safety level. It some talk of whether politics played a role is the so-called Universal Safety Oversight during that period, such as the worsening Audit Program Continuous Monitoring Ap- relationship between the EU and Indonesia proach (USOAP-CMA) which was launched (ASEAN) and competition between Boeing in 1999 in response to widespread concerns and Airbus.8 In 2013 Indonesia’s Lion Air about the adequacy of aviation safety over- ‘responded’ by ordering 234 Airbus A320 sight around the world.11 There are eight aircraft, breaking a world record.9 Some components that come into consideration for have speculated this was done to win favour the scoring system which are legislation, or- from the EU and thus ultimately ease or lift ganization, licensing, operations, airworthi- the ban. However, both authorities have only ness, accident investigation, air navigation corroborated the ICAO findings that the In- services, and aerodromes. donesian authorities did not meet the stan- In May 2014, Indonesia could ‘only’ dard for ensuring an adequate level of avia- obtain an average score of 39.05 (out of tion safety. 100);12 which increased slightly in March

It is ultimately ‘fortunate’ that EU, 10 Chappy Hakim. (2009), Op.cit., p. 56. and once the FAA, has banned Indonesia; 11 USOAP audits focus on a state’s capability in providing safety oversight by assessing whether the as it is important for the sake of the airline State has effectively and consistently implemented the critical elements of a safety oversight system and passengers’ lives whatever their nationality determining the State’s level of implementation of considering aviation is a global issue. Due ICAO’s safety-related Standards and Recommended Practices (SARPs) and associated procedures and to these sanctions Garuda Indonesia lost po- guidance material. In September 2007, the 36th Session of the Assembly adopted Resolution A36-4 tential international market share and face directing the Council to examine different options for as a that could not fly to Europe the continuation of the USOAP beyond 2010, including the feasibility of applying a new approach based on the in between 2007-2009. However, this ban concept of continuous monitoring and incorporating the analysis of safety risk factors. The systematic and was needed to open the Indonesian Direc- more proactive conduct of monitoring activities in the torate General of Civil Aviation’s (DGCA) new USOAP Continuous Monitoring Approach (CMA) would make a more effective and efficient use of ICAO eyes that they were not doing enough to pro- resources and reduce the burden on States caused by repetitive audits. USOAP-CMA would also increase tect passengers’ lives. The DGCA has been the role of other ICAO bureau and the regional offices, too afraid to sanction the airlines who do include States’ commitment to the programme by providing ICAO with relevant safety information and and Lion Air, are excluded from the EU black list. expand and amend ICAO’s agreements for the sharing 7 Chappy Hakim. (2014). Believe It or Not: Dunia of confidential safety information with international Penerbangan Indonesia - Terbang Aman dan Nyaman entities and organizations. As of January 2013, walau Banyak Masalah. Jakarta: Kompas, p. 60. USOAP-CMA is already fully launched. See ICAO. 8 Chappy Hakim. (2009), Op.cit., p. 62. USOAP Continuous Monitoring Approach. Available 9 Airbus (2013). Lion Air Orders 234 A320 Family from: http://www.icao.int/safety/CMAForum/Pages/ Aircraft. Available from: http://www.airbus.com/ default.aspx [Accessed August 20, 2016]. presscentre/pressreleases/press-release-detail/detail/ 12 Audit period was between 5 to 14 May 2014. See ICAO. lion-air-orders-234-a320-family-aircraft/ [Accessed on Safety Audit Information. Available from: http://www. August 24, 2016]. icao.int/safety/Pages/USOAP-Results.aspx [Accessed

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2015, with an average score of 45.09;13 and to ensure aviation safety within the country. finally increased to 47.23 per-September As a result, Indonesian aviation currently has 2016.14 However, the score was not suffi- one of the most expensive insurance premi- cient considering the minimum score to be ums in the world.15 considered a ‘pass’ is a 60. The world how- ever will be looking as to whether this coun- Comparison with Thailand: Similar chal- try can improve this score in 2016. lenges As a comparison with the situation At the moment, Thailand scores below the among other ASEAN member states, Indo- global average. It is interesting to see how nesia could only compete with the Philip- Thailand’s USOAP-CMA score fell in all of pines, as another archipelagic state, in terms aspects just within a half year, namely from of air navigation services and aerodromes, March to October 2015. Following this situ- thus losing in all other aspects (see Table 1). ation, the FAA downgraded Thailand’s avia- Indonesia also lagged behind Malaysia and tion safety rating to category two in Decem- Singapore. Speaking of the latter, its level of ber 2015;16 due to lack of laws or regulations aviation safety is overwhelming, not only to to properly oversee its air carriers in accor- compared to Indonesia but also to the world, dance with minimum international stan- where their average score reaches more than dards.17 Prior to this downgrade, the ICAO 96 (of 100), with a perfect score at three as- had “red flagged” Thailand over significant pects. With an almost perfect score (98.45) safety concerns within the country’s aviation for providing “Air Navigation Services”, sector in the same year.18 These bans mean no wonder if Singapore has made a strong a potential for Thai-registered airlines, like stance for providing air navigation service most Indonesian airlines, to be restricted above some parts of the Indonesian airspace, from flying to some extend countries with namely the Riau and Natuna islands (or also high aviation safety levels in Asia, such as known as the Natuna FIR), delaying its trans- Japan and South Korea. fer back to the Indonesian authority claiming Currently, existing scheduled flights a aviation safety basis. to Japan and South Korea operated by This is a fact that must be accepted, Thailand registered-airlines are still allowed, where currently Indonesia is being left be- hind the other ASEAN countries, finding 15 Chappy Hakim. (2010). Berdaulat di Udara. Jakarta: Kompas, p. 201. itself at the bottom third of the ranking. A 16 CNN (2015). FAA Downgrades Thailand Over Aviation simply conclusion can be made that the In- Safety Concerns. Available from: http://edition.cnn. com/2015/12/02/aviation/thailand-aviation-safety-faa/ donesian DGCA has not done well enough [Accessed August 28, 2016]. 17 The Telegraph (2015). Thailand Airlines Downgraded March 15, 2016]. Over Safety Concerns. Available from: http://www. 13 Direktorat Jenderal Perhubungan Udara (2015). telegraph.co.uk/travel/destinations/asia/thailand/ Diharapkan Bisa Naikkan Nilai Skor Menjadi 72. articles/Thailands-airlines-downgraded-over-safety- Available from: http://hubud.dephub.go.id/?id/news/ concerns/ [Accessed August 27, 2016]. detail/2466 [Accessed August 24, 2016]. 18 CNN (2015). Thailand ‘Red-Flagged’ for Aviation 14 ICAO. Safety Audit Information. Available from: Safety Concerns. Available from: http://edition. http://www.icao.int/safety/Pages/USOAP-Results.aspx cnn.com/2015/06/19/travel/thailand-aviation-safety [Accessed September 12, 2016]. [Accessed August 27, 2016].

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Table 1. A comparison of USOAP-CMA scores in five ASEAN member states.

ASEAN Countries Aspects Global Average Indonesia Thailand Singapore Malaysia Philippines ASEAN Countries LegislationAspects 68.60 59.09 27.27 100 83.33 90.91 Global Average Indonesia Thailand Singapore Malaysia Philippines Organization 66.17 26.67 7.69 100 66.67 81.82 Legislation 68.60 59.09 27.27 100 83.33 90.91 Licensing 72.15 36.56 35.87 96.30 77.38 80.77 Organization 66.17 26.67 7.69 100 66.67 81.82 Operations 66.81 46.38 10.71 100 84.13 83.06 Licensing 72.15 36.56 35.87 96.30 77.38 80.77 Airworthiness 75.03 68.78 62.60 98.11 84.62 88.29 Operations 66.81 46.38 10.71 100 84.13 83.06 Accident Investigation 54.20 32.41 41.67 96.84 33.33 44.33 Airworthiness 75.03 68.78 62.60 98.11 84.62 88.29 Air Navigation Services 58.08 56.25 29.81 98.45 91.79 35.23 Accident Investigation 54.20 32.41 41.67 96.84 33.33 44.33 Aerodromes 56.70 51.70 32.69 99.32 93.08 38.13 Air Navigation Services 58.08 56.25 29.81 98.45 91.79 35.23 Source:Aerodromes ICAO - compiled based on different56.70 audit period:51.70 i. Indonesia32.69 (2016); ii. 99.32Thailand (March93.08 2015); iii.38.13 Singapore (August 2010); iv. Malaysia (June-July 2005); and v. the Philippines (February 2013).

Tabel 2. Comparison of USOAP-CMAIndonesia score for Indonesia and Thailand in 2015Thailand and 2016. Aspects March (2015) September (2016) March (2015) September (2016) Indonesia Thailand LegislationAspects 33.33 59.09 76.19 27.27 March (2015) September (2016) March (2015) September (2016) Organization 17.65 26.67 46.15 7.69 Legislation 33.33 59.09 76.19 27.27 Licensing 33.70 36.56 88.46 35.87 Organization 17.65 26.67 46.15 7.69 Operations 38.13 46.38 69.84 10.71 Licensing 33.70 36.56 88.46 35.87 Airworthiness 61.05 68.78 94.50 62.60 Operations 38.13 46.38 69.84 10.71 Accident Investigation 31.48 32.41 61.62 41.67 Airworthiness 61.05 68.78 94.50 62.60 Air Navigation Services 50.94 56.25 87.00 29.81 Accident Investigation 31.48 32.41 61.62 41.67 Aerodromes 44.59 51.70 74.17 32.69 Air Navigation Services 50.94 56.25 87.00 29.81 Aerodromes 44.59 51.70 74.17 32.69 Source: ICAO - data per-26 April 2015 and 10 September 2016. but adding new route is forbidden.19 A relief and enforcement. Legal enforcement or came for Thai airlines when EASA spared implementation is undoubtedly an issue them a ban from European skies at the end of considering the unfortunate habit of officials 2015, saying instead it will assist the country reporting only ‘pleasant’ information; a con- in upgrading its aviation safety.20 dition deemed to be caused by corruption, The latest scores (September 2016) collusion, and nepotism which are currently in Table 2 indicate both countries faced being fought in both countries. serious problems with bureaucracy (organi- Currently Thailand and Indonesia are zation), keeping legal framework up-to- in a similar situation, where their aviation date (legislation and operations), and most safety is doubted by the world. Thailand’s importantly, ensuring legal implementation reputation could be described, more or less, 19 The Japan Times. Japan Temporarily Lifts Flight Ban as from hero to zero in ASEAN. A political Imposed on Thai Airlines Over Safety Issues. Available from: http://www.japantimes.co.jp/news/2015/04/02/ will with serious steps must be taken to national/japan-temporarily-lift-thai-airlines-charter- ensure that the aviation industry continues flight-ban-imposed-safety-issues/#.V9cPN5N96Ax [Accessed August 28, 2016]. to develop within the country. Thailand’s 20 Post (2015). Thai Airlines Pass EU Safety Test. Available from: http://www.bangkokpost.com/ prime minister has ordered a swift overhaul learning/work/791829/thai-airlines-pass-eu-safety-test of his country’s aviation system in response [Accessed August 28, 2016].

333 Hasanuddin Law Review Vol. 2 Issue 3, December (2016) to the FAA’s decision downgrading the regulation in 1998-2000, especially in mak- country aviation safety rating.21 Hopefully a ing safety a priority; and iii.) a low level of stable political situation can occur within the human resource quality and discipline from country, so focus and energy could be shifted both the regulator and operator.25 Finally, the to improve aviation safety. team came up with some recommendations There is always a light of hope for Thai- which are being included in current Indone- land in the form of the Philippines, which re- sian Aviation Law26. turned to FAA category one last April 2015 The new Indonesian Aviation Law was after being downgraded for more than six introduced in 2009, precisely two years after years.22 Learning from the Philippines as a a comprehensive evaluation towards the In- ASEAN member state, which turned around donesian aviation situation was made by the its aviation safety, must also be considered. team following FAA and EASA ‘sanctions’ following ICAO findings. Clearly the law is Homework and Consecutive Acts from a response to these developments and also to the Indonesian Government update the legal framework considering the The Indonesian Aviation Law of 2009: previous Indonesian aviation law was enact- Keeping the legal framework up-to-date ed in 1992. In response to consecutive aircraft accidents Under the Indonesian Aviation Law, in Indonesia, Presidential Decree No. 3 was certification and licensing towards any per- issued in 2007.23 A national evaluation team sonnel working in the aviation sector, such (Tim Nasional Evaluasi Keselamatan dan as those in airline operation, aircraft main- Keamanan Transportasi), which consists tenance, airport services, and air navigation of seven experts, was set up for evaluating service, is mandatory.27 Thus the human transportation safety and the security situa- resource aspect is being put more into con- tion in the country. A three month working sideration, and extended into management period was set up, which was later extended where the directors must have a knowledge another six months considering the work- of managerial and operational technical is- load.24 This team came up with several im- sues within the airline business.28 portant findings, such as i.) the authorities In response to market liberalization and poor response and investigation towards air- deregulation which mushroomed the number craft accidents; ii.) unreadiness of new air- of Indonesian airlines in the beginning of lines following market liberalization and de- 2000, a rule has been established that com- 21 CNN (2015). FAA Downgrades Thailand Over Aviation mercial scheduled airlines must own a mini- Safety Concerns. Available from: http://edition.cnn. com/2015/12/02/aviation/thailand-aviation-safety-faa/ mum of five aircraft and possess a minimum [Accessed August 28, 2016]. of an additional five aircraft.29 This bench- 22 The New York Times (2015). Concerns Over Safety of Air Travel in Asia. Available from: http://www.nytimes. mark is aimed at ensuring aviation safety by com/2015/02/06/travel/concerns-over-safety-of-air- travel-in-asia.html?_r=2 [Accessed August 29, 2016]. 25 Ibid., pp. 55-56. 23 Indonesia. Presidential Decree No. 3 Year 2007 regarding 26 Indonesia. Law No. 1 Year 2009 regarding Aviation. the National Team for Evaluating Transportation Safety 27 Ibid., arts. 388-392. and Security. 28 Ibid., arts. 111 and 381. 24 Chappy Hakim. (2014), Op.cit., p. 71. 29 Ibid., art. 118.

334 Hasanuddin Law Review Vol. 2 Issue 3, December (2016) limiting airlines, so that only those with suf- Ensuring legal enforcement and imple- ficient capital and sufficient aviation- man mentation: Urgency for quality Supervi- agement capability can operate in Indonesia. sion from DGCA inspectors Additionally, air navigation service in Law enforcement has been a consistent Indonesia must be conducted by only one problem in Indonesia for many years. This institution, which was previously done by problem must be traced back many years be- three until 2013.30 Also NTSC profession- fore the reformation happened in 1999 when alism must be ensured by establishing stan- corruption, collusion, and nepotism were dards within a maximum of two years after the rule. A mentality of “do things only as the law was enacted and guaranteeing their long my boss is happy”35 had lived within independence by placing them directly under the public sector for a long time and even the ’s supervision.31 through reform the situation is improving, Not to be forgotten, an aviation ethics spe- this mentality remains. This situation has cial court will also be set up in order to en- prevented the implementation of Good Cor- sure professionalism and avoid prosecution porate Governance36 which leads to unpro- in a criminal court.32 Learning from Captain fessionalism of authorities, in this case with Marwoto in the flight GA-200 case, this spe- the DGCA. Thus, there is the possibility for cial court is important for aircraft accident bribery. Four examples of legal enforcement investigation, so that pilot and co-pilot can issues will be examined below. reveal the full truth without the worry of be- ing prosecuted. The case of Adam Air’s consecutive acci- Finally, there is a safeguard for whis- dents tleblowers who reports a situation which It was the Tambolaka incident when a Boe- does not comply with safety standards where ing 737-300 operated by the airline en-route their protection is guaranteed under the from Jakarta to Makassar, was lost during law.33 Hopefully this could prevent another its flight; then landed after three hours fly- fuel case in 2005 from happen- ing without direction at a small Tambolaka ing, where 96.46% water, thus only 3.54% airport with a runway not adequate for this fuel, was found within the Boeing 737-200 type of aircraft.37 According to national (PK-YTR) during an investigation. Stricter regulations, the aircraft should have been administrative sanctions, fines and/or - im grounded until the NTSC investigators had prisonment are waiting for those who fail to finished examining this accident. However, comply; with the parties being given three 35 Known in the as “asal bapak 34 years to comply with the law. In this case, senang”. It is a well-known term for giving good news it is better late than never. and hiding problems to the boss or superior. 36 A concept to improve corporate and government in- stitutions management, promoting values as account- ability, transparancy, transparancy, responsibility, and 30 Ibid., art. 271. fairness. See Komite Nasional Kebijakan Governance 31 Ibid., art. 357. (2015). Good Corporate Governance. Available from: 32 Ibid., arts. 364-369. http://knkg-indonesia.com/home/news/95-good-corpo- 33 Ibid., art. 321. rate-governance.html [Accessed August 30, 2016]. 34 Ibid., chapter XXII and arts. 445-447. 37 Chappy Hakim. (2014), Op.cit., pp. 34-35.

335 Hasanuddin Law Review Vol. 2 Issue 3, December (2016) before they arrived, Adam Air technicians breached the national standards.42 Adam Air came and repaired the aircraft quickly, then is a good lesson in regards to the urgency for got a clearance permit for take-off; meaning professional DGCA inspectors. the cockpit voice recorder and flight data re- corder was erased preventing further exami- The Garuda Indonesia Flight GA-200 acci- nation.38 Thus the NTSC failed to find out dent: Lack of airport safety equipment and the main cause, which ultimately led to the standards fatal Adam Air Kl-574 accident a year later. Still around the year 2007, Garuda Indonesia Widespread speculation was as to GA-200 which served the Jakarta-Yogyakar- whether the fact that some DGCA person- ta route crashed while landing at Adisutjipto nel were on the payroll of the airline as Airport, killing twenty-two people on board. well was the reason for this ‘miracle’ which According to the final investigation report prevented the airline from being banned or conducted by the NTSC, the accident was heavily sanctioned after the Tambolaka inci- purely caused by human error where the air- dent in 2006. At that time, one of the DGCA craft landed faster than the required landing inspectors was simultaneously employed by speed; also the pilot had ignored the co-pi- Adam Air as a pilot.39 Who issued the take- lot’s warning to go around.43 off clearance and approved its flight plan is However, the NTSC also commented still a mystery.40 The Tambolaka incident has on the lack of equipment for rescue opera- strengthened the premise to prevent conflict tions at Adisutjipto Airport when the fire- of interest within legal enforcement, and also fighter trucks were unable to reach the unfor- has shown the lack of Indonesian Air Traf- tunate aircraft due to terrain difficulties and fic Controller (ATC) quality which failed to some did not have appropriate fire suppres- monitor the aircraft. sants.44 Furthermore, the usage of water in- Still with Adam Air, it was strange to stead of extinguisher foam by some firefight- notice the airline’s history where surpris- er trucks which finally reached the location ingly afterwards the Adam Air KI-574 acci- actually enlarged the fire, thus killing more dent in 2007, which crashed into Makassar people on board which were probably still Strait and took ninety-six victims, the airline alive and struggling to save themselves.45 At safety level was actually promoted from 3rd the end, they concluded the airport emergen- category to 2nd category; not the other way cy plan and its implementation were not held around or even banned.41 At the end, Adam effectively, reducing the chance to save more Air’s license was revoked after another acci- lives during the accident. dent in , namely a skidding, in March The NTSC had recommended PT. 2008; when the DGCA ‘finally’ found that I, as the airport operator, to airline safety procedure and operation had 42 Ibid., pp. 36-37. 43 The National Transportation Safety Committee of 38 Ibid. Indonesia. (22 October 2007). Media Release No. 39 Ibid., p. 37. KNKT/07.06/07.02.35. 40 Ibid., p. 35. 44 Ibid. 41 Ibid., p. 36. 45 Ibid.

336 Hasanuddin Law Review Vol. 2 Issue 3, December (2016) evaluate and fix its airport emergency plan; flights and limited number of aircraft operat- which was done accordingly and quickly by ing these routes, who can ensure that cargo is the latter.46 Again, if only DGCA inspectors not overloaded through a bribe? could had taken the initiative inspecting the There are cases in some Papua airports airport with its safety facilities periodically, or airfields where cargo is not weighted dur- probably more lives could be saved. ing the loading process, then being laid ran- Another situation must also be high- domly within the aircraft without following lighted, that at that time the Yogyakarta standard operations.50 It is suspected that Adisutjipto did not have a Runway End numerous cargo masters in small airports or Safety Area (RESA) for overshot landings airfields serving pioneer routes in Papua are installed due terrain consideration, namely not properly trained and moreover are not river banks on both sides of the runway.47 If certified.51 Another interesting problem from the airport and its runways could already be pioneer flights in Papua is regarding -pilot constructed on sea or artificial islands, there ing of aircraft; where there was a case of an is no reason for not constructing a RESA in aircraft flown by a mechanic.52 This situation the airport. This example could explain why is predictably occurring due to lack of pilots the Indonesian aerodrome score is lagging within these routes.53 behind ICAO standards. From an aviation safety perspective, undoubtedly the situation in Papua is very The pioneer routes situation in Papua48 dangerous and intolerable. However, so far The situation in Papua could become an these situations just continue like ‘normal’ example how legal enforcement within the without any sanction given to the airline(s) Indonesian aviation world can be limited. and tends to become a public secret within Probably the main factor of repeated aircraft the airline business. Furthermore, this situa- accidents in Papua is not bad weather, but tion has led to two important questions: how it also derived from the unprofessionalism could DGCA authorities at Papua airports or of ground crew and supporting personnel airfields do nothing and where are the DGCA at airports.49 With high demands on pioneer inspectors during these times?

46 Hukumonline (2007). KNKT: Kecelakaan Garuda di A legal framework must be followed Yogyakarta Murni Human Error. Available from: http:// by effective enforcement, and the DGCA www.hukumonline.com/berita/baca/hol17842/knkt- kecelakaan-garuda-di-yogyakarta-murni-ihuman-errori has failed to do this in Papua. In response [Accessed August 19, 2016]. 47 Chappy Hakim. (2009), Op.cit., p. 119. to the Papua case, ensuring legal enforce- 48 In an archipelagic state like Indonesia, “pioneer routes” ment could be accomplished by improving refers to flights connecting thousands of small islands or isolated areas which are otherwise not commercially the number of DGCA inspectors. Of course, viable. There were 217 routes classified as pioneer routes in 2015; which means those were subsidized by quality must also be kept high besides fulfill- the government. See Ridha Aditya Nugraha. (2015). ing the sufficient quantity. Thus, it is a lesson State Aid for Pioneer Routes Under Public Service Obligation in Indonesia: Against the Tide Within ASEAN Open Skies?. LL.M. (Adv.) Thesis at the International 50 Ibid., p. 76. Institute of Air and Space Law, Universiteit Leiden. 51 Ibid., p. 76. 49 Agus Pambagio. (2013). Protes Publik Penerbangan 52 Ibid., p. 77. Indonesia. Jakarta: Gramedia, p. 75. 53 Ibid., p. 77.

337 Hasanuddin Law Review Vol. 2 Issue 3, December (2016) for Jakarta: do not merely talk about issuing hoi aircraft had disappeared from the new legislation and regulations as a solution, radar screen for a period of about 24 ensure that the human resources, especially minutes.” the DGCA’s and airlines’ flying these pioneer During NTSC interview, the controller routes, are adequate enough, both in quantity expressed that he felt over-loaded monitor- 55 and quality, for proper implementation. ing aircraft movements. At that time there was no assistant or supervisor as should be, The Sukhoi RRJ-95B joy flight accident: mandated in Advisory Circular (AC) 69-01, Point-ing at fatal mismanagement within the so the controller also had to cover his as- air traffic service provider sistant and supervisor’s obligations alone in addition to controlling the movements of The Sukhoi RRJ-95B joy flight accident that fourteen aircraft.56 On paper, PT. Angkasa crashed into Mount Salak in May 2012 was Pura II, as the Air Traffic Service Provider, further proof that there is something wrong had already enforced regulation (AC 170- with legal implementation; where the current 02) which deals with Capacity Manage- human resource and management turned out ment. However, the fact during the accident not adequate enough to perform their duties. as found in the NTSC investigation report The situation at that time was described from shows the regulation was not enforced prop- by an NTSC official report on Sukhoi RRJ- erly, by having less personnel from standard. 95B accident, which is as follows:54 Once again, missing action from “The Jakarta Approach Controller was not concerned about the limits of DGCA inspectors to ensure safe operation the Atang Sanjaya (Bogor Area) which led to another aircraft accident. If it could are from ground level up to 6,000 feet. happen near the capital, no doubt there is a The Jakarta Approach Controller as- further potential this situation could occur sumed that a military aircraft was in other parts across the country. The well- eligible to fly in this area. As a result, Jakarta Approach Controller approved known Indonesian public observer, Agus the aircraft to descend to 6,000 feet.” Pambagio, criticized the Ministry of Trans- “During that period the controller was portation and DGCA in 2015 for their slow handling thirteen other aircraft. The action to improve the number of aviation in- intensive exchange of communications spectors considering the rapidly increasing required the controller to transfer his number of aircraft operating in Indonesia. attention quickly from one aircraft to As seen from the cases above, the ur- another. The quick transfer of atten- tion might have led the controller to gency for high quality DGCA inspectors concentrate only on the aircraft being is real; and they must also be in sufficient communicated with… This situation number. To answer this need, the Minister of was one of the factors that may have Transportation Decree No. 59 of 201557 has contributed to the Jakarta Approach controller not noticing that the Suk- 55 Ibid. 56 Ibid. 54 The National Transportation Safety Committee of In- 57 Indonesia. Minister of Transportation Decree No. 59 donesia. (2012). Aircraft Accident Investigation Report Year 2015 regarding Criteria, Tasks, and Authority of No. KNKT.12.05.09.04, p. 46. Civil Aviation Inspector.

338 Hasanuddin Law Review Vol. 2 Issue 3, December (2016) been enacted with the purpose of improving with a score of 100 and 81.82 (see Table 1). the output of DGCA inspectors for increas- This reality must be first admitted by the ing aviation safety in the country. Under this DGCA to become the basis for reforming its decree, DGCA inspectors are classified into bureaucracy and management to improve le- five categories, which are: i.) air transport in- gal enforcement. spector; ii.) airport inspector; iii.) flight safe- ty inspector; iv.) flight navigation inspector; Reforming the bureaucracy and its ma- and v.) airworthiness and aircraft operation nagement inspector.58 Such classification is to make All of the solutions above to improve avia- them more focused on their particular job. tion safety are invariably dependent on the The right man at the right place principle readiness of the DGCA as the main overseer. must be highly promoted. Reform within the DGCA, and also other re- Clear job descriptions and career paths lated institutions such as national air naviga- are established within this decree, along with tion service provider, must be made to im- the qualifications needed and an evaluation prove its management function together with method. Furthermore, inspectors are encour- human resource quality and quantity. aged to develop themselves through seminars The establishment of Perusahaan and workshops to earn promotions. A period Umum Penyelenggara Pelayanan Navigasi of two years is set up for the current educa- Penerbangan Indonesia, also known as Air- tion, training or workshop system to comply Nav Indonesia in 2012 is one example of this new minister decree.59 Finally, conflict this bureaucracy reform. Under Government of interest could be minimalized through a Regulation No. 77 Year 201261, AirNav In- clear provision that a DGCA inspector may donesia became the sole air navigation ser- not supervise the airline, airport, or other vice provider in Indonesia. The country used related service they are working with.60 to have three, which were PT. Angkasa Pura Within these difficult times, DGCA inspec- I (Persero), PT. Angkasa Pura II (Persero), tors should become more proactive doing in- and the service provider units on behalf of spection while keeping their professionalism the Ministry of Transportation. However, the high. In order to do so, their income must first two-institutions were deemed unable to also be adjusted with inflation and workload, work effectively due to overwhelming tasks, namely to deter them from accepting bribes. namely operating numerous airports in Indo- Considering these cases, it is not sur- nesia. Furthermore, the ICAO audit resulted prisingly if Indonesia’s current score for or- in a recommendation that Indonesia should ganization are among the worst, with only established a specialized body to operate 26.67 points, while the global average reach- air navigation service.62 These were the two es 66.17; and also falling behind its neigh- 61 Indonesia. Government Regulation No. 77 Year 2012 bours such as Singapore and the Philippines regarding the Indonesian Air Navigation Service Provider. 58 Ibid., art. 2. 62 AirNav Indonesia. Sejarah. Available from: http:// 59 Ibid., art. 117. www.airnavindonesia.co.id/id/page/about/type/history 60 Ibid., art. 110. [Accessed September 2, 2016].

339 Hasanuddin Law Review Vol. 2 Issue 3, December (2016) main reasons behind the establishment of NTSB sent a bird sample to Smithsonian AirNav Indonesia. fowl experts for further examination.65 Thus Since 17 January 2013, or around three bird strike could thus be further researched years late, AirNav Indonesia has taken over to decrease the potential of endangering air- air navigation services previously held by the craft. This situation is very relevant to Indo- three different institutions. This is an effec- nesia considering its situation in the equator tive way to improve aviation safety by setting which is a habitat for many kinds of birds. up a uniformly high standard; which previ- ously was varied due different standards and Current developments to improve aviation management methods within the different safety institutions. Currently AirNav Indonesia is a Shortly after another poor score was an- nonprofit institution responsible for both In- nounced by ICAO in March 2015, the In- donesian Flight Information Regions (FIR), donesian Ministry of Transportation issued namely the Jakarta FIR and Ujung Pandang twenty-four regulations to address the safety FIR.63 No doubt, these are pivotal steps from and security issue.66 Recognition must be the Indonesian government, not only to ful- given towards this fast response, but still fill ICAO safety standards and FAA category the main question is why did it take such a one, but also to establish AirNav Indonesia long time for them to issue new regulations. as the best air navigation service provider Another question is whether the Indonesian in ASEAN. Finally, this reform must be fol- authority were capable of realizing they still lowed by promoting ATC staff as ‘first class lagged behind current regulation if the ICAO citizens’, like pilots, through proper income. had not notified them with a poor USOAP Otherwise, the high expectation of their pro- score last March. These situations have put fessionalism is only a dream. another big question mark towards the DG- In regards to the DGCA and NTSC, CA’s capability and seriousness to ensure having an effective spokesman and strength- aviation safety. ening its communication department like the In order to promote aviation safety, the US National Transportation Safety Board DGCA has conducted a safety rating assess- (NTSB) could be considered. The public ment towards airlines twice a year since June could be well-informed and kept up-to-date 2015; and those who fail shall be trained and with recent development; namely to avoid cy water landing in the Hudson River after multiple bird being misled due speculations and irrespon- strikes caused both A-320 jet engines to fail on 15 Janu- sible news and comments from unrelated ary 2009. All passengers survived the accident. See The Guardian (2009). Miracle on the Hudson: 155 Survive parties. Crash as Jets Hits River in New York. Available from: https://www.theguardian.com/world/2009/jan/16/us- Another important issue, cooperation airways-plane-crash-lands-on-hudson [Accessed Au- with other organizations which have strong gust 28, 2016]. 65 Chappy Hakim. (2009), Op.cit., p. 91. connection with aviation safety is needed. 66 Direktorat Jenderal Perhubungan Udara (2015). Garuda 64 Indonesia Apresiasi Langkah Kemenhub Tingkatkan In the US, after the Hudson miracle, the Keselamatan dan Keamanan Penerbangan. Available 63 Ibid. from: http://hubud.dephub.go.id/?id/news/detail/2476 64 US Airways Flight 1549 made an unpowered emergen- [Accessed August 28, 2016].

340 Hasanuddin Law Review Vol. 2 Issue 3, December (2016) its Air Operating Certificate (AOC) tempo- announced since September 2015 a program rary suspended.67 This measure will also be to construct airside fences on all Indonesian implemented to all Indonesian airports in the airport.71 Being late is better than never, future. however it must be asked how could the In response to the lack of training for Indonesian DGCA have become so ‘blind’ aircraft inspectors, the Ministry of Trans- towards such an obvious problem for so portation has drawn up a training syllabus, many years. boosted recurrent and on-the-job training, Certification is also another important and improved its monitoring of oversight issue that must be solved by increasing its activities. The move is line with its commit- standards on safety. Learning from the Mer- ment to focus on transportation safety, as it pati Flight MZ 8968 accident plans to allocate twenty percent of its bud- in 2011, a Xi’an MA60 crashed to the sea get of IDR 48.5 trillion (US$ 3.57 billion) while trying to land under low visibility and in the 2016 state budget on improving safety bad weather. Shortly afterwards, despite the aspects.68 A statement from one of the min- cause of the accident which was human er- istry’s director for air transportation, “If an ror due the airline’s mismanagement and airline indicates a tendency toward this kind lack of training,72 there were heated debates of incident [accidents], we will increase the regarding the purchase of this type of aircraft frequency of airline inspections to more than which had not received certification from the seventy-five times a year”.69 FAA; which is recognized as one of the fin- Another issue is that not every airport est benchmarks in terms of safety standards. in Indonesia has been fenced properly; and This is the first type of aircraft which has op- even, many are still unfenced. Currently erated in Indonesia without obtaining FAA there are 237 airports in Indonesia, where certification.73 In other words, an airworthi- 181 airports are operated by the Ministry of ness certification with number A066 towards Transportation, with most of the unfenced this type of aircraft by the DGCA had raised airports being operated by the latter.70 Thus serious questions in terms of the quality of how to ensure aviation safety and security the institution’s implementation of safety without this fundamental instrument. The standards. Moreover, Merpati Nusantara was Minister of Transportation however has operating fifteen Xi’an MA60 at that time, which means they were not flying in the saf- 67 Direktorat Jenderal Perhubungan Udara (2015). Safety Rating Penerbangan Dua Kali Setahun. Available est manner. from: http://hubud.dephub.go.id/?id/news/detail/2382 With pressure to bring back Indonesia’s [Accessed August 28, 2016]. 68 The Jakarta Post (2015). Govt Finishes ICAO Recom- aviation safety back to FAA category one, mendations on Aviation Standards. Available from: http://www.thejakartapost.com/news/2015/11/09/govt- sometimes the authorities were too impulsive finishes-icao-recommendations-aviation-standards. html [Accessed August 28, 2016]. 71 Ibid. 69 Ibid. 72 The National Transportation Safety Committee of 70 Direktorat Jenderal Perhubungan Udara (2015). Men- Indonesia. (2012). Aircraft Accident Investigation hub Minta Bandara yang Belum Berpagar Segera Di- Report No. KNKT.11.05.10.94. pasang. Available from: http://hubud.dephub.go.id/?id/ 73 Chappy Hakim. (2015). Tanah Air & Udaraku Indone- news/detail/2683 [Accessed August 29, 2016]. sia. Jakarta: Red & White Publishing, p. 481.

341 Hasanuddin Law Review Vol. 2 Issue 3, December (2016) trying to fix the problem as soon as possible. needed for operating drones for special pur- For example, the recent Indonesia AirAsia poses besides hobby and sport. QZ8501 crash has led the government to In response to numerous aircraft ac- impose a new pricing structure, which in- cidents in 2015, the DGCA had temporary cludes an increase in the minimum airfare suspended four routes for further NTSC in- of low-cost carriers (LCCs) from 30% to vestigation and reviews.77 In relation to air- 40% of the maximum tariff with the intent port equipment, the Minister Regulation No. of increasing the safety level through a more 17478 has been enacted in 2015 which set up ‘proper’ income. However, there are debates the maximum age of operational vehicle and whether low (promotion) fares equal poor ground support equipment at Indonesian air- safety maintenance; considering there are ports. Two classifications are made, which many other aspects besides funds behind are units with a maximum ten and fifteen poor safety. Finally, the NTSC came up years of age, in order to improve aviation with a recommendation on drafting a new safety.79 The Ministry of Transportation also minister regulation which obliged the pilot encourages modernization of air navigation in command to report any known damage systems which is named “Top Sky”, replac- to the aircraft; which has been regulated ing “Eurocat X” since 21 December 2015.80 under ICAO Annex 6 but not yet codified in Thus an advanced system has been installed Indonesia.74 within AirNav Indonesia, which complies The DGCA deserves credit when they with ICAO standards, such as having the enacted the first drone regulation in this newest flight plan format. country under the Minister Regulation No. 9075 in 2015; which means ensuring that le- External Jurisdiction and Institutional gal framework is not being left behind with Intervention: A Helping Hand for Im- recent developments.76 The mushrooming proving Aviation Safety phenomenon of drones in this country has Within the last decades, the aviation indus- established a potential for threating avia- try has changed drastically since it was first tion safety, especially around airports. As a introduced almost a century ago. Inventions response, a restricted space and maximum and rapid development of aviation technol- height of 150 meters for operating a drone ogy has resulted in aircraft which can be without permit has been set up. An adminis- 77 Direktorat Jenderal Perhubungan Udara (2016). Catatan trative procedure to obtain flight permits is Penanganan Masalah Penerbangan Selama Tahun 74 Direktorat Jenderal Perhubungan Udara (2015). Reko- 2015. Available from: http://hubud.dephub.go.id/?id/ mendasi KNKT Kepada Direktorat Jenderal Per- news/detail/2809 [Accessed August 28, 2016]. hubungan Udara. Available from: http://hubud.dephub. 78 Indonesia. Minister of Transportation Regulation No. go.id/?id/news/detail/2775 [Accessed August 28, 174 Year 2015 regarding Maximum Age of Ground 2016]. Service Equipment and Operational Vehicles for Air 75 Indonesia. Minister of Transportation Regulation No. Transport. 90 Year 2015 regarding Unmanned Aerial Vehicle 79 Ibid., arts. 2-3. within the Indonesian Airspace. 80 Direktorat Jenderal Perhubungan Udara (2016). Dorong 76 See Ridha Aditya Nugraha, Deepika Jeyakodi, and Modernisasi Sistem Navigasi Penerbangan, Sistem Thitipon Mahem. (2016). “Urgency for Legal Frame- Top Sky di MATCS Diresmikan. Available from: http:// work on Drones: Lessons for Indonesia, India, and hubud.dephub.go.id/?id/news/detail/2821 [Accessed Thailand”. Indonesia Law Review, 6(2): 137-157. August 28, 2016].

342 Hasanuddin Law Review Vol. 2 Issue 3, December (2016) used globally, where operating aircraft is not gal framework based on EU rules; where the limited to a few as in the beginning. Within Technical Cooperation Activities are being the globalized world, flying between US cit- held for four years, starting from October ies is as easy as flying between Indonesian 2012 to October 2016.83 Aviation safety is- cities, where nationalities have not become sues covered six activities or 36% of the ap- barrier to travel. Without doubt, aviation is a proved work plan for the second year imple- global issue. mentation phase.84 Considering the current situation, As Garuda Indonesia flies to two EASA’s assistance in improving the level of points in Europe (Amsterdam and London), aviation safety in ASEAN not only protects the Indonesian authority could not ‘reject’ ASEAN nationals; but it further protects EU EASA’s AATIP cooperation program. More- nationals flying in ASEAN or with its mem- over, the Indonesian government would not ber states’ airlines. The International Air allow its flag carrier to be banned from fly- Transport Association (IATA), as a (com- ing to Europe for a second time. On the oth- mercial) airline association which represents er hand, the EU wants to protect its citizens 260 airlines or 83% of total air traffic,81 also more while traveling abroad, in this instance has an interest to keep the airline business while flying Indonesian airlines; especially running and growing well. Unsafe situations on the Indonesian domestic routes. Thus this shall lead to disasters where insurance pre- program could be seen as a win-win solution miums will spike and potential passengers and an opportunity for a better aviation safe- shift to other forms of transportation. ty standard in Indonesia and other ASEAN member states. The European Aviation Safety Agency However, there is a huge barrier that EASA plays a role in ASEAN member coun- potentially could limit EASA’s efforts. It is tries through its ASEAN Air Transport Inte- known as sovereignty of a state. Under this gration Project (AATIP) supporting the cre- premise, the Indonesian authorities could ation of an ASEAN Single Aviation Market. reject or halt any program in progress. This The EU organization works together with situation reflects the strong relationship be- ASEAN member states, including Indone- tween law and politics, where the Indonesian sia and Thailand, in order to improve and government’s political will to improve avia- harmonize the aviation safety and security tion safety shall be the main answer towards standards with a budget of EUR 4,700,000.82 the effectivity of external ‘interventions’. EASA actively supports the DGCA by or- In Thailand, the AATIP provided an ganizing technical activities and setting up assessment “EASA Part 145” of a Thai op- working groups for the development of le- 83 European Aviation Safety Agency (2015). ASEAN Air 81 IATA. Available from: http://www.iata.org/about/Pag- Transport Integration Project. Available from: https:// es/index.aspx [Accessed August 29, 2016]. www.easa.europa.eu/easa-and-you/international- 82 European Aviation Safety Agency (2015). ASEAN Air cooperation/technical-cooperation-projects/aatip- Transport Integration Project. Available from: https:// -air-transport [Accessed August 29, 2016]. www.easa.europa.eu/easa-and-you/international- 84 European Aviation Safety Agency (June 2014). ASEAN cooperation/technical-cooperation-projects/aatip- Air Transport Integration Project Newsletter Issue 1, p. asean-air-transport [Accessed August 29, 2016]. 2.

343 Hasanuddin Law Review Vol. 2 Issue 3, December (2016) erator in Bangkok to highlight the efforts in the IOSA program could be considered; to satisfy European standards in December considering in 2015 both airlines held a mar- 2015.85 This is a relief considering the coun- ket share of around 52% of domestic flights, try’s current downgraded aviation safety carrying around thirty-five million passen- level. Meanwhile on the ASEAN level, the gers throughout Indonesia.88 As of March ASEAN Aviation Regulatory Monitoring 2015, 145 of 405 airlines on the IOSA reg- System (AARMS) work group met in Au- istry were non-IATA member airlines;89 thus gust 2015 in order to prepare AARMS to it opens the door for these two Indonesian become fully operational by May 2016.86 A airlines to join.90 Establishing cooperation positive development, not only for Thai pas- with the IATA means protecting passengers sengers, but for international passengers as more by reducing the potential for aircraft well. accidents.

The IATA Operational Safety Audit Pro- CONCLUSION gram The urgency to improve the country’s avia- Considering the recent growth of Indonesian tion safety level is real and necessary if In- aviation market, promoting Indonesian air- donesia wants to continue to be recognized lines to participate in the IATA Operational as an equal in international aviation. The Safety Audit (IOSA) program could become Indonesian Aviation Law of 2009 was en- the solution. This program is aimed at im- acted to answer this dilemma, but in practice proving the operational management and progress has been hindered by issues such control systems of its member airlines for as lack of legal enforcement, bureaucratic encouraging aviation safety. The total ac- mismanagement, and insufficient human re- cident rate for IOSA carriers between 2011 sources within the DGCA, airlines, airports, and 2015 was 3.3 times lower than the rate air navigation services, and other stakehold- for non-IOSA operators.87 Such a record ers. As a result, numerous aircraft accidents should be of notice to the DGCA seeking to and incidents, many with high fatalities, reduce aircraft accidents in Indonesia. 88 Jakarta Globe (2014). Lion Loses Market Share as Air Travel Growth Slows. Available from: http://ja- Currently it is only the flag carrier, Ga- kartaglobe.beritasatu.com/business/lion-loses-market- ruda Indonesia, who participates in this pro- share-air-travel-growth-slows/ [Accessed August 30, 2016]. See also Direktorat Jenderal Perhubungan Udara gram. A commercial incentive from the gov- (2016). Tahun 2015, Jumlah Penumpang Udara Men- capai 82,5 Juta Orang. Available from: http://hubud. ernment towards the other big airlines, such dephub.go.id/?id/news/detail/2829 [Accessed August as Lion Air and Sriwijaya Air to participate 30, 2016]. 89 IATA. IATA Operational Safety Audit (IOSA). Available from: http://www.iata.org/whatwedo/safety/audit/iosa/ 85 European Aviation Safety Agency (February 2016). Pages/index.aspx [Accessed August 30, 2016]. ASEAN Air Transport Integration Project Newsletter 90 The IOSA Standards and Recommended Practic- Issue 4, p. 2. es (ISARPs) are applicable only to an operator that 86 European Aviation Safety Agency (October 2015). operates a minimum (i.e. one or more) two-pilot, multi- ASEAN Air Transport Integration Project Newsletter engine aircraft that have a maximum certificated takeoff Issue 3, p. 2. mass in excess of 5,700 kg (12,566 lb) for the conduct 87 IATA. IATA Operational Safety Audit (IOSA). Available of i) commercial passengers flight with or without cabin from: http://www.iata.org/whatwedo/safety/audit/iosa/ crew; and ii) commercial cargo flights with or without Pages/index.aspx [Accessed August 30, 2016]. the carriage of supernumeraries or cargo attendants.

344 Hasanuddin Law Review Vol. 2 Issue 3, December (2016) have continued during the last decade. Un- Ministry of Finance, the Republic of fortunately, it seems that Indonesian aviation Indonesia for its scholarship and funding safety level has not improved that much, support for this research; and to Ms. Lalin thus raising questions whether the govern- Kovudhikulrungsri from the Faculty of Law ment really has the willingness to take on at Thammasat University for her generous this task. Their poor progress could also be support. further interpreted as actively infringing on human rights, namely failure to protect the BIBLIOGRAPHY right to life. Agus Pambagio. (2013). Protes Publik Pe- The cases above have shown that hu- nerbangan Indonesia. Jakarta: Grame- man resource quality and quantity in Indo- dia. nesia is not adequate with the rapid growth Airbus (2013). Lion Air Orders 234 A320 of aviation business. Bureaucracy reform is Family Aircraft. Available from: http:// needed with a long-term goal of improving www.airbus.com/presscentre/pressre- the Indonesian human resources and ensur- leases/press-release-detail/detail/lion- ing legal enforcement. One of the most im- air-orders-234-a320-family-aircraft/. portant aspects to achieve this goal, without [Accessed August on 24, 2016]. underestimating other staff roles, is improv- AirNav Indonesia. Sejarah. Available from: ing DGCA inspectors’ functions through http://www.airnavindonesia.co.id/id/ clear obligations mandated by law. At the page/about/type/history. [Accessed on ASEAN level, currently Thailand shares the September 2, 2016]. same story as Indonesia where their avia- Aviation Safety Network (2016). Accident tion safety level is being downgraded by the Description. Available from: http:// ICAO. aviation-safety.net/database/record. Finally, legal framework is a product of php?id=20160404-0. [Accessed on political consensus, and in terms of aviation August 18, 2016]. safety, Indonesia will not seriously improve Bangkok Post (2015). Thai Airlines Pass without the Indonesian government’s strong EU Safety Test. Available from: http:// political will. Otherwise, all discussion of www.bangkokpost.com/learning/ airline safety will remain just lip service. At work/791829/thai-airlines-pass-eu- the very least an accident free record until safety-test [Accessed on August 28, the end of 2017 could become a new start- 2016]. ing point for proving that legal enforcement Chappy Hakim. (2009). Cat Rambut Orang together with political will has been realized. Yahudi. Jakarta: Kompas. Chappy Hakim. (2010). Berdaulat di Udara. Acknowledgement Jakarta: Kompas. The author wishes to thank the Indonesia Chappy Hakim. (2014). Believe It or Not: Endowment Fund for Education (Lembaga Dunia Penerbangan Indonesia - Ter- Pengelola Dana Pendidikan) - the Indonesian bang Aman dan Nyaman Walau Banyak

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