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The legal framework that regulates the aviation industry is what determines air safety. FILE PIC

IN the world of aviation Malaysia is not a big name — we do not build aeroplanes nor do we lead in any field of technology related to flying, but we do have a relatively clean track record when it comes to safety.

Until last year, the Department of Civil Aviation (DCA) was considered an example for others in the region to follow as we made sure that flying in and out of Malaysia is as safe as can be.

To be sure, our aviation sector was not really a technical trailblazer operating on the cutting edge of technology, but we did have to face the challenge of AirAsia, a budget airline that grew so fast that it made the world sit up and take notice.

Overseeing a fast-growing budget airline is not an easy task; as the term implies, such aviation outfits work the very limit of cost cutting. If not properly supervised they could easily cut corners and put lives at risk.

Budget airlines also generate a lot of complaints, primarily due to delays and quality of service as they push manpower and equipment to the brink of the impossible.

Budget airlines do generate a lot of technical and safety concerns because they just work planes and people harder, that is their nature.

Somehow, the DCA managed to keep everything in check and its strictness allowed AirAsia the framework to grow safely and sustainably.

Hats off to DCA for a task well done. So, how did we slide so far down the totem pole to join the ranks of only six other nations in Category 2 of the American Federal Aviation Administration’s (FAA) classification of countries that connect directly to the United States?

The demotion could not have happened overnight as the FAA clearly knew what it was doing.

The FAA website has an entire section that talks about its certification processes and lists out eight Critical Elements to determine why a country deserves to be in the first category.

There is even a checklist guide to indicate why the criteria are required and who is qualified to assess them, ranging from persons with legal background to someone with experience investigating incidents to those who understand how to resolve issues, including technical personnel.

Sources say that we failed about 30 on a checklist of 300 items.

If it were a standardised examination one could argue that we are still in the top 90 per cent, but this is the aviation industry, some things have a passing mark of 100 per cent.

I do not know what the passing mark is for each of the eight critical elements and whether all of our failings were in one particular category, but it is learnt that we may have failed on security related matters.

Our aviation track record has always been above par, except when Malaysia Airlines lost only one plane before the mysterious disappearance of MH370 and the downing of MH17.

I believe we were demoted because we lost our head of civil aviation.

Until Feb 19 last year, everything came under DCA’s purview — a government department which had the last say in everything that flew in and out of this country that did not have a military tail.

Everything from certification, to flight planning to licensing of equipment and personnel had to go through DCA.

The line of authority is clear and disputes are ultimately handled by the director-general of the Civil Aviation Authority.

If we look at the FAA checklist, legal provisions governing civil aviation are item No. 1 — it is the most important item and this is not by accident.

The legal framework that regulates the aviation industry is, ultimately, what determines how safe everyone will be.

Under that first critical element, the FAA asks some probing questions about the chain of authority in the civil aviation of a particular country.

In item seven of the checklist for the first critical element, it asks for the specific provision for the establishment of a civil aviation authority with a director-general of civil aviation as its head, with the power to exercise authority over civil aviation matters.

If we look at the Civil Aviation Act of 1969, it clearly defines the roles and authorities of the director-general of civil aviation whereas in the new Civil Aviation Authority of Malaysia (CAAM) Act 2017, this actual outline of powers and responsibilities is not stated.

The new act starts by describing the membership of the board and their remuneration and powers to enter into debt and other related matters before arriving at the functions and powers of the CAAM in Part 3.

Whereas the 1969 act demanded that there be a director-general, the 2017 does not specify that the chief executive officer of the CAAM shall also be known as the director-general.

In Part IV of the act under Section 21(2)(a), it says: “The chief executive officer, shall be known by such other designation as the authority may determine.”

It may seem like a minor detail but in law such a lack of clarity can lead to all sorts of unsatisfactory situations, especially regarding the source of authority and chain of command.

Interestingly, Section 19 of the Mavcom Act (2015) actually provides for consultation with the director-general of Civil Aviation on matters related to safety and security, therefore recognising the importance of the position of DGCA.

Yet, that post seems to have somehow melted into the legal ether with the poorly worded CAAM Act of 2017.

This lack of a clear authority could be the cause of some confusion. While the Mavcom Act does indicate that its authority is more related to commercial matters, market development and consumer access to aviation, there are some blurring of areas of authority.

Mavcom’s duty to promote the growth of air transportation and its clear authority in promoting efficient and economically viable operation of aerodromes draw no separation between the commercial considerations and technical elements that should govern these.

Aerodromes are secure installations but they are under the supervision of Mavcom, which, by inference from the act that establishes it, does not have the necessary technical expertise to evaluate aerodromes.

How can they regulate aerodromes when they do not have the expertise to do so?

It is likely that this lack of clear chain of authority has resulted in many things not being given proper oversight by the qualified people.

The two acts establishing Mavcom and CAAM are clearly not coherent and are not capable of giving guidance on roles and responsibilities of those in office.

By giving Mavcom sweeping rather than restricted powers, certain safety and security implications, which should come under the purview of CAAM, have been overlooked.

The two acts do not place sufficient emphasis on the separation of powers between the two bodies and do not define the differences between commercial considerations and safety and technical worries.

The timing of when the two acts came into force may have also influenced the way civil aviation in Malaysia is managed.

With a two-year advantage, Mavcom was able to position itself as the main source of authority in many matters and this may have given them a false sense of importance in key areas where they have no authority.

The CAAM Act, which was passed two years after the Mavcom Act, seemed to have given the new body the opportunity to pick up table scraps from what Mavcom has carved out for itself, giving it a diminished sense of authority and responsibility.

The fact that Mavcom collects the licensing fees for air carriers and aerodrome operators and ground handlers and other matters also magnifies its powers and amplifies it voice in areas that it has no expertise in.

This may have resulted in an unsatisfactory situation developing within the industry.

The result is a civil aviation sector that is overly licensed and harassed but, maybe not better regulated or guided in the areas that are important.

That is probably why the FAA decided to downgrade us.

Our incoherence is dangerous and we need to get our act together before things get out of hand.

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