Criminalisation of aviation disasters

Who is to blame for aviation disasters in Pakistan and does justice survive behind walls of silence?

Aviation history of Pakistan is replete with the worst air tragedies. Investigation reports of aircraft accidents have long been shrouded in mystery. Inconvenient truth is obfuscated by deep-rooted corruption. Perhaps covering up is a smaller lie for the well-intentioned conduct of the Civil Aviation Authority (CAA). Who is to blame for aviation disasters in Pakistan and does justice survive behind walls of silence?
Following an aircraft accident two parallel investigations are conducted, one is technical and the other is a judicial investigation. According to ICAO’s Manual of Aircraft Accident and Incident Investigation the primary object of the technical investigation is to establish the facts related to an aircraft accident by making use of the specialised knowledge and practical experience of the participating individuals with respect to construction and operation of the aircraft involved in the accident and to examine the facilities and services that were provided to aircraft prior to the accident.
In addition, Standard 3.1 of ICAO Annex 13 (Aircraft Accident and Incident Investigation) stipulates that the sole objective of technical investigation of aircraft accident or incident is to prevent accidents form reoccurrence and not to apportion blame or liability.
On the other hand, judicial investigation is conducted by the courts of law. It goes several steps beyond the technical investigation and utilizes other tests to evaluate the results of the investigative process. Basic object of judicial investigation is to apportion blame for criminal and civil liability on the concerned parties that have been at fault.
Based on the findings of judicial investigation pilots, air traffic controllers, aircraft maintenance engineers and other aviation professionals have been criminally prosecuted throughout the world with multiple charges of breach of duty, criminal negligence and involuntarily manslaughter. From 1956 to 2010 in over 60 cases only officials of the aviation authorities and management of airlines were criminally investigated due to breach of contract on part of their employees and agents. In some cases, aircraft manufacturers were also held responsible for aviation products liability for manufacturing and design defects.
In December, 2010 the French Court ruled that Continental Airlines and one of its mechanics were guilty of involuntary homicide for their role in the crash of an Air France Concorde Flight 4590 outside Paris on July 25, 2000 in which all 109 people on board were killed.
Globally, aircraft accidents are investigated by independent bodies without interference of aviation authorities and airlines. In Pakistan the Safety Investigation Board of Civil Aviation Authority (CAA) is responsible to investigate all civil aircraft accidents and incidents. It is indeed unfortunate that 185 people lost their lives in the event of three fatal aircraft accidents of Airblue Flight ED 202, JS and Sun Way in 2010. Now it has been over one and half year since the air mishaps but the victims’ families are still waiting for the findings of investigation report. Pakistan is party to the Chicago Convention, 1944. Of the 190 ICAO Contracting States, why are investigation reports of aircraft accidents only secret in Pakistan? Probably one of the major reasons is that the investigation reports of aircraft accidents serve legal basis for criminal action against aviation professionals.
It is incumbent on every ICAO Contracting State in which an aircraft accident occurs to institute an inquiry into the circumstances of the accident in conformity with Article 26 of the Chicago Convention, 1944. This obligation can only be met when appropriate legislation on aircraft accident investigation is in place. Such legislation must establish an independent statutory accident investigation authority for the investigation of aircraft accidents. Similarly, Standard 5.4 of ICAO Annex 13 also requires that the accident investigation authority should have independence in the conduct of the investigation and have unrestricted authority over its conduct, consistent with the provisions of this Annex. Further, Standard 2.1.2 of the ICAO Manual of Aircraft Accident and Incident Investigation Part I (Organization and Planning) First Edition— 2000 also requires that the accident investigation authority must be strictly objective and totally impartial and must also be perceived to be so. Many States have achieved this objective by setting up their accident investigation authority as an independent statutory body.
Effective and transparent investigation makes a positive contribution to sustainable air transportation services. Investigation reports of aircraft accidents should be made public in order to serve one of the fundamental purposes for the administration of justice. Secondly, there is also a need for the establishment of an independent statutory authority in Pakistan for the investigation of aircraft accidents and incidents.

The writer is an Aviation Lawyer. He can be reached at [email protected]