As far as delivering justice to the departed souls is concerned, in Nepal, however, it sadly continues to elude the relatives of the dead to this very day. In any civilized society, any violent and unnatural death owing to the acts of a fellow human being is always investigated for justice purposes. This is also necessary to positively verify that no deliberate acts of omission or commissions led or contributed to the deaths. Saying that the relatives have been adequately compensated for the deaths, would be akin to a society where murderers get away from the criminal justice system after compensating the relatives of the victims monetarily. The investigations being carried out presently under the provisions of the Aircraft Accident Investigation Rules (1967) are fundamentally technical in nature so as to prevent reoccurrences and not to apportion blame or liability. Amusingly, in the past, although judicial officials headed the commissions but the investigation were far from being judicial in nature (for identifying the guilty) as the prevailing regulations limited the scope to a mere technical formality. Interestingly, the principal guardian of human rights in the country, the Supreme Court, has throughout remained oblivious to this travesty of dignity of the dead.
Alarmingly, the safety investigations into air crashes in Nepal leave a lot to be desired.
To look at worldwide practices in this regard, very recently the government of Poland has instituted a judicial probe in the Katyn crash in Russia where the President and other high officials perished. Some months back, the government of France had also initiated criminal proceedings for involuntary manslaughter into the crash of flight AF447 (2009) over the Atlantic Ocean. The incriminated organizations are Airbus, Air France, the BEA (France’s aircraft accident investigation agency), the Direction Générale de l’Aviation Civile (DGAC) and the European Agency for Air Security (AESA) for acts of negligence. Similar was the case after the Concorde crash in Paris (2000) where three people— a former French civil aviation authority official and two former officials from the aircraft manufacturer–are facing charges of involuntary manslaughter, their pleas having been dismissed by the French Supreme Court in 2006.
Similar is the case where air traffic controllers were sentenced to imprisonment by a Swiss court for having “contributed” to the deadly mid-air collision (2002) between a DHL 757 aircraft and a TU-154 Russian Airliner after being charged with negligent homicide. The Spainair crash of 2008 at Madrid resulted in criminal probe where the maintenance technicians were charged with negligent homicide for failing to detect faults that led to the tragedy. The cases amply indicate that persons related to handling the flight (whether pilots, air traffic controllers or maintenance technicians) are not immune to criminal proceedings if anything goes wrong with the flight and if their actions are suspected of having contributed to the crash. It should be borne in mind that this aspect of criminal probe is entirely different from that with a purely safety perspective to prevent future reoccurences.
On the other hand, alarmingly, the safety investigations into air crashes in Nepal leave a lot to be desired. Perhaps, that is why the International Civil Aviation Organization (ICAO) in its year 2009 safety oversight audit of Nepal has found numerous faults with the process of accident investigation. Although over a year old now, this audit report is still being jealously guarded by the custodians of Nepali civil aviation (including the Civil Aviation Authority of Nepal and the Ministry of Civil Aviation) fearing that making it public might open flood gates of criticism from the public and the industry. Isn’t it ironic that on the one hand the audit reports compiled by CAAN on individual airlines for regulatory purposes are often insensitively used to harass airline operators while on the other hand, an objective appraisal of CAAN’s (and thereby Government of Nepal’s) own capabilities are kept under shrouds to avoid unwelcome and uncomfortable perusal by those under its own control?
The accident reports are never known to have been made public or at least no notification to that effect is ever noticed. Perhaps, the reason could have to do with the deep sense of discomfort in the writers about the amateurish nature of the contents, having been prepared by a hurriedly composed commission often comprising of individuals working part-time and who usually share a conflict-of-interest with the parties under investigation. To cite an example, can the “supposed experts” from airlines ever dare to critically examine the raw-nerves of the CAAN officials, who would also have been invariably involved in the certification of the aircraft or airmen, without having to pay dearly for his high-handedness later on? Of course, not! Well, why would any sane person wish to ruin his business or defile his aviation documents by picking a fight with his own masters in a foolishly brave attempt to do justice to the dead? Critics often recount the investigation of the infamous Ghunsa helicopter crash, where a minister of the ruling coalition along with a bunch of luminaries perished, as mere eyewash, where superfluous technical jargon in the report was adroitly used to obfuscate the truth. Well, how could weather be blamed to have contributed to the accident? If that is so, the so-called investigators can further go ahead and blame the force of gravity for other accidents! If the diagnosis itself is incorrect, a cure cannot be expected and crashes of similar nature will continue to occur.
Presently, the Warsaw Convention and its constituent protocols specify the liabilities of the airlines for various types of damages, deaths and injuries arising in course of a flight and outline the monetary limits for receiving compensation without having to prove the carrier’s negligence for the damages. However, it doesn’t curtail the passengers’ rights to file lawsuits for suitable damages if negligence can be established in a competent court of law.
It is ironic that the present Nepali society that exhibits heightened political awareness remains content meekly accepting compensation from the airline insurers for death or injuries resulting from accidents, resigned more to the fate of their departed relatives who perished than choose to aggressively litigate for unlimited liabilities based on deliberate negligence of the concerned parties.
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