One year on: IFALPA's representative to ICAO, pilot and lawyer on ongoing prosecution of Garuda Indonesia Flight 200 pilot

March 12, 2008 Almost exactly one year ago, on March 7, Garuda Indonesia Flight 200 crashed during landing at Adisucipto International Airport, near Yogyakarta, after a scheduled domestic Indonesian passenger flight. 21 people - 16 Indonesians and five Australians - were killed when the Boeing 737-400 overshot the runway, crossed a road, struck an embankment and burst into flames in a rice paddy. Overall, the plane had traveled 252m beyond the extreme end of the runway.

The final report, released in October, blamed pilot error for the disaster. The report stated that the aircraft had approached at a speed far exceeding that at which the wing flaps could properly operate, and attempted to execute a landing at 408 kph (254 mph), which is 160 kph (100 mph) above the safe speed. It also found that captain Marwoto Komar had ignored fifteen activations of the Ground Proximity Warning System (GPWS) informing Mr Komar that the aircraft was flying at a speed beyond that at which it could safely land, but he failed to abort.

It also commented that he missed one further opportunity for emergency evasive action when the airliner struck the runway and bounced into the air, at which point co-pilot Gagam Rochmana requested a 'go-around' procedure be initiated, but was also ignored. It further criticised Mr Komar for singing during final approach, a direct violation of the Garuda Basic Operations Manual, which calls for activation of the Sterile Cockpit Rule at 10,000 feet and below.

Mr Rochmana was also criticised for his failure to take control away from Mr Komar when it became apparent that the aircraft was being operated in an unsafe manner. However, the report did note that Garuda Indonesia had failed to give him any simulator training replicating a situation whereby the co-pilot would take over control duties from the pilot in charge due to unsafe handling of the plane; in fact, training was found to be inadequate for both members of the cockpit crew.

Further criticisms were also leveled at airport and governmental authorities for failures in their respective roles to provide safety features and to enforce regulations. However, the Indonesian authorities have recently generated intense controversy by deciding to prosecute Mr Komar for his role in the disaster. The move has been pushed for by some, but met with opposition by others.

Alexander Downer, Australian foreign minister at the time of the crash, immediately said "...I am very glad that they have reached a point now where they have charged the captain of the aircraft." The unusually high number of Australians amongst the 140 passengers on board was attributable to a visit by Mr Downer.

One of those was Morgan Mellish of the Australian Financial Review, who died in the crash. His sister, Caroline Mellish, had specifically called for prosecution to be avoided, saying "I think having 21 deaths on your conscience is probably enough. I don't think prosecuting the man is going to make any difference."

There were fierce calls for prosecution of both pilots immediately after the report's release, with Downer himself pressuring the Indonesian authorities, citing the "very credible report" and saying "I've asked our ambassador today (October 24) to make it absolutely clear to the Indonesians that we want people prosecuted for this accident. I want to see people who have negligently allowed Australians … to be killed, I want to see those people brought to justice."

Australian Opposition Leader Kevin Rudd also made clear a desire for prosecutions, saying he had telephoned secretary-general of Indonesia's foreign affairs department and former ambassador to Australia Imron Cotan, telling him that he wanted those responsible "prosecuted to the absolute full". "This is a serious matter, many Australians visit Indonesia, Garuda is an often used airline and there is a basic national interest at stake here as well," he said.

National Transport Safety Committee chairman Tatang Kurniadi said at the time that no information from the report could be used in any criminal or civil liability investigations. "I would like to go back to the objective of this, the report was made by NTSC for safety purposes only, not for blaming, he said. "If any institution wants to ... follow up that accident, that's their own decision. The report contained the results from the cockpit voice recorder and flight data recorder, but according to international regulations on aviation these black boxes are not allowed to be used for... liability purposes. We will not give police or any institution (information) other than for safety purposes only - it's in international regulations and we want to follow those regulations." He also confirmed that investigators cannot speak to the police, with the only permitted testimony under the legislation being to testify at a court hearing, and pointed out that the document does not actually appoint any blame.

The international legislation he was referring to is probably the Convention on International Civil Aviation, which stipulates that accident reports and related material, specifically transcripts of interviews, communications with crew and cockpit voice recorder and flight data recorder (collectively known as black boxes) readouts, must not be used for any purpose other than determining the cause of an accident or incident. The only possible exception to this is where potential benefit would outweigh the "adverse domestic and international impact" on the investigation in question or any other either in progress or in the future. This legislation is in place to provide protection to witnesses on the basis that without it they may be less likely to cooperate with investigational procedures.

The law caused was actively opposed by some. Aridono Sukman, the police member in charge of the criminal investigation, said that the contents of the black box were vital evidence. Officials commented that some relatives had expressed their frustration over the legal challenges involved in the prosecution effort.

Early in February Mr Komar was arrested; he has subsequently been charged with manslaughter charges which carry a maximum sentence of five years' imprisonment. The London-based International Federation of Air Line Pilots Associations (IFALPA) issued a press release condemning this move, saying that further investigations are needed into the crash, and that criminal proceedings could prevent an accurate version of events from ever being known. Specifically, the release said that "IFALPA believes that the circumstances of the accident as set forth in the final report of the Indonesian investigation authority leaves many serious questions concerning the crew actions prior to the accident. Central to these concerns are the underlying reasons for the reported behavior of Captain Marwoto Komar. Experienced pilots have considerable difficulty in attempting to explain what is reported in the context of normal airline operations. The Federation believes that the explanations proffered by the report do not square with the collective experience of our members." The release went on to state the opinion that prosecution may bring total foreclosure to the case and could only be counterproductive. It also said "He remains a professional who was involved in an unfortunate tragedy."

One possible explanation had previously been suggested by the head of the Garuda pilots association, Stephanus Geraldus. He said that marital problems between Mr Komar and his wife Norma Andriani were "common knowledge" and was backed up by an industry analyst and pilot who said he believed the couple had been arguing late into the night, and expressed concern that the report had not addressed psychological issues. Mr Geraldus also said sleep deprivation could have contributed, with the flight crew reporting for duty at 4:30 am and the flight departing an hour and a half later.

The report had hinted at problems, saying The pilot was probably emotionally aroused because his conscious awareness moved from the relaxed mode “singing” to the heightened stressfulness of the desire to reach the runway by making an excessively steep and fast, unstabilised approach,” and "His attention was fixated or channelised on landing the aircraft on the runway and he either did not hear, or disregarded the GPWS alerts, and warnings, and calls from the copilot to go around." It is also known that Mr Komar had been under police surveillance, during which time he was receiving psychological treatment.

The Indonesian Pilot's Association has also said that the criminal prosecution should be avoided, arguing that the only people who can judge whether mistakes were made in aviation are those professionally involved and not the police. There were protests in Jakarta demanding his release and dozens of pilots across the nation also campaigned. Meanwhile, two survivors, Adrianus Meliala and Retno Gunowati, went to the House of Representatives (DPR) to challenge those opposed to legal processes against the pilot.

Mr Komar was released on police bail on February 15, and is currently awaiting trial. He was forced to resign late in February with being fired his only alternative, and his licence has been suspended. He is believed to be the only man ever prosecuted in Indonesian history over an airliner crash.

The issues thrown up by this ongoing case have now been exclusively commented on for Wikinews by Paul McCarthy. Mr McCarthy is IFALPA's representative to the International Civil Aviation Organisation (ICAO). He is both a pilot - as are all of IFALPA's roughly 100,000 members - and a lawyer, and is an acknowledged expert on issues concerning the criminal liability of pilots. Mr McCarthy's comments, obtained by email via IFALPA media representative Gideon Ewers are available below.

Interview
IFALPA's press release expresses difficulty in explaining Mr Komar's behaviour. It has been suggested that it could be caused by a combination of marital problems and sleep deprivation. Do you feel that this alone could explain what happened?


 * Paul McCarthy: I have no idea why the Captain acted as he seems to have done. We are recommending that that is the proper job of the accident investigation team. The allegation of “tunnel vision” simply does not answer the issue.

In your own estimation, without necessary evidence from psychology experts, do you believe Mr Komar's mental condition was such as to render him unfit to stand trial and take responsibility for his actions?


 * PM: As above, we do not speculate. The Captain has a legal team which is charged with such determinations

The Convention on International Civil Aviation states that various investigative materials cannot be used to establish criminal or civil liability, but makes an exception where the benefit would outweigh the negative effect on aviation investigations. How would such a situation be determined, and is there a serious possibility of this happening here?


 * PM: The standard requires, in this case, the court to make the balancing determination. The question becomes, if certain voluntary disclosures made to the investigators are subsequently used in prosecution, what is the probability that such disclosures will no longer be made in future investigations. If they are withheld, will the investigation, and by inference safety suffer?

What evidence is available to the prosecution? Is a conviction possible even if the authorities are blocked from using evidence from the investigation?


 * PM: The ideal situation is that the police independently investigate and procure their own evidence. Is a conviction possible? I don’t know.

One official expressed a desire to call in the investigators as expert witnesses because they cannot use their testimony as investigators. Does this loophole really exist, or can it be prevented?


 * PM: It depends on the rules of evidence in Indonesia. It should not be possible to call the active investigators as expert witnesses. To do so would subvert both the investigation and the court proceeding.

Based on your own experience, what structure is Mr Komar's defence likely to take?


 * PM: Again, the Captain has a legal team.

If convicted, what kind of appeals process does Indonesian law supply to Mr Komar?


 * PM: I have no idea.

There are a number of other individuals and organisations that could potential also face legal action for their roles in the disaster, but only Mr Komar has. Why do you believe this is?


 * PM: I once again will not speculate in this area.

Despite not having faced trial, Garuda Indonesia have recently forced Mr Komar to resign. Do you feel this move was justified?


 * PM: It was expected and is quite common in many parts of the world, with or without establishment of culpability. It is a matter of face for the corporation.

Do you feel Mr Komar's case sets a precedent for the industry?


 * PM: Unfortunately, it is simply the most recent example of this attitude that somehow prosecution will improve safety. It will not.

Have there been any previous cases in other nations that could in any way be compared to this? How were they resolved?


 * PM: Each accident has a different fact situation, so it is difficult if not impossible to use one as precedent. The most famous is probably the New Zealand case at Palmerston North (International Airport) where the captain was prosecuted following a crash. Even though he seemed guilty under the applicable statute, the jury refused to convict.

Do you believe Australia was right to push for prosecution so soon after the report was published?


 * PM: No. If this accident was in Australia, their own laws would preclude much of what has happened. In fact, the Australian position could be viewed as a cynical political move.

Had the co-pilot been adequately trained he would have taken over the operation of the plane and averted an accident. Does this have any bearing on Mr Komar's case?


 * PM: To answer this one must compare cultures and the ability to train cultural bias out of the reactions of a crewmember. Once again, the investigation should have addressed this issue but did not.

Why do you feel the final report fails to address the issues IFALPA are calling for it to consider?


 * PM: I would restate my answers above to the questions concerning the crew actions. The investigation has not addressed them in a way that will be useful as a guide for the industry to act to prevent a reoccurrence.

Do you believe there ever will be another investigation?


 * PM: No.

If a full investigation into Mr Komar's psychology conclusively found that he was of sound mind at the time, would that change IFALPA's stance on the prosecution?


 * PM: No. we are not interested so much in a sound mind as we are the reactions of a professional airman to a certain set of stimuli. Where, as seems to be the case here, the reactions are totally unresponsive, it is not sufficient to give a glib answer, either “tunnel vision” or “psychological problems”. The industry needs to understand the mechanism so that it can be identified and remediated prior to it once again causing an accident.

Does the fact that this prosecution has gone ahead indicate to you that changes in the law may be required?


 * PM: Time will tell as the prosecution is continuing.

To what extent is a pilot protected by law in event of an accident caused by his or her negligent conduct?


 * PM: The issue that ICAO, IFALPA, IATA FSF and every other serious observer has addressed is the use of the word negligent. Ordinary negligence can be attempting to get it right and not succeeding. The level of negligence that should trigger prosecution would have a component of intent to either do harm or to disregard the high probability that harm would occur. This is variously described as gross negligence or willful and wanton misconduct. To prosecute someone for attempting to deal with a particular situation and getting it wrong adds nothing to the safety mix.

Would you still get into an aircraft that you knew Mr Komar was piloting, assuming he was confirmed to be of sound mind at the time?


 * PM: We can assume that a proper training and evaluation program will make certain, to the highest degree possible, that all flight crew members are fully fit to perform their duties. A proper explanation in this instance would have assisted Airline training departments in fulfilling this mission.

How big do you believe the impact would be if Mr Komar were convicted?


 * PM: On whom?

The effect on safety in general.


 * Gideon Ewers: I think I can answer that.


 * The important question to ask is “Will the conviction of Capt Komar improve air safety?” Since in this case there has been no full, independent and complete technical investigation into all the events surrounding the accident the answer to this question would have to be no. All that is known following the report is what happened…not WHY it happened. Furthermore, the prosecution itself is flawed since without a full investigation it is hard to see how willful negligence can be demonstrated but that is a digression from the core issue.


 * The important thing is to prevent a recurrence and the best way to do this is by a full, complete, independent technical investigation. The bottom line is that investigations carried out in line with the provisions set out in ICAO Annex 13 have done much to create the one of the safest means of transport in the world…it works. Whereas it’s hard to show where a prosecution of an airline crew has improved air safety.