MH370: An avoidable tragedy

by TOMMY THOMAS
KiniBiz
May 9, 2014

MH370 AzlanLike billions of people across the globe and millions of Malaysians, I have been following with deep interest the saga of flight MH370 from the morning of Saturday, 8th March when it vanished into thin air. The public relations disaster that ensued, with different authorities contradicting each other and positions shifting daily has embarrassed the nation and MAS beyond repair, at least in the short term. Unfortunately, the release of a Preliminary Report by the Chief Inspector of Air Accidents, Ministry of Transport does not provide any comfort in ascertaining the full truth and restoring credibility.

THE PRELIMINARY REPORT

Although the Preliminary Report is dated 9th April, it was only released into the public domain on 1st May, some 8 weeks after the plane’s disappearance. The Preliminary Report runs to just 5 pages while the “Actions Taken” Sheet is all of 2 pages. The other supporting documents are also not lengthy. Hence, my first observation is why did it take the authorities one month to draft these scanty, sketchy documents characterized by major omissions, and for them to remain confidential for another 3 weeks. Having regard to the paucity of information given in the Preliminary Report, there is no objective reason why they could not have been released to the world within 2 or 3 days of 8th March. The Report does not even name the pilot and co-pilot and does not state that the 227 passengers come from 14 nations.

It is also important to scotch the heresy expressed by the IGP that his department’s investigations must remain confidential. Any duty to investigate must be balanced by an overriding duty to disclose promptly and accurately all information to the public, and particularly to family members of passengers and crew. Further, the IGP must be reminded that all criminal prosecutions in Malaysia are conducted before a professional, full-time judiciary and not before juries. It is insulting our judges to suggest that they will be influenced by anything they had read in the media when they preside over a trial many months or indeed years after the event.

I propose to analyse the Preliminary Report and the “Actions Taken” Sheet, and shall assume the contents to be truthful. Truth is vital for many reasons. First, because it is right and there are no other options. Secondly, the grieving families of crew and passengers deserve it. Thirdly, the 26 foreign governments assisting in the search rely on the information disseminated by Malaysia and arrange their affairs accordingly. Fourthly, the wider public. It must be kept in mind that MAS is not a domestic airline only carrying Malaysian passengers. On the contrary, MAS flies to all the continents (or used to) and gladly accepts passengers from everywhere. As an international airline, MAS has international responsibilities and must conform to international standards of openness, transparency and accountability. Finally, criminal and civil proceedings are foreseeable, and truthful evidence must be collected and marshalled for use in such legal proceedings. The integrity of the investigation and its findings must never be compromised.

Based on the materials released on 1st May, I have prepared a Chronology of Events occurring in the early hours of 8th March, which is attached as Appendix A.

MH370 TURNING BACK

The Press Statement by Hishammuddin Hussein, the Acting Transport Minister, issued on 1st May when releasing the Preliminary Report stated:-

“The military’s tracking of MH370

As stated previously, Malaysian military radar did track an aircraft making a turn-back, in a westerly direction, across peninsular Malaysia on the morning of 8 March. The aircraft was categorised as friendly by the radar operator and therefore no further action was taken at the time.

The radar data was reviewed in a playback at approximately 08:30 on 8 March. This information was sent to the Air Force operations room at approximately 09:00. Following further discussion up the chain of command, the military informed the Acting Transport and Defence Minister Hishammuddin Hussein at approximately 10:30 of the possible turn-back of the aircraft.

The Minister then informed the Prime Minister, who immediately ordered that search and rescue operations be initiated in the Straits of Malacca, along with the South China Sea operations which started earlier in the day.”

(my emphasis)

CARGO ON BOARD

The cargo manifest released on 1st May indicate that the following goods were on board MH370:-

(i) Lithium Batteries – 2,453 kg (5,407 lbs);

(ii) Mangosteen – 4,566 kg (10,066 lbs);

(iii) Unidentified cargo – 2,934 kg (6,468 lbs).

QUESTIONS THAT CRY OUT FOR ANSWERS

Despite taking 8 weeks to prepare the Preliminary Report a reader will come away with the firm conviction that it has failed to address fundamental questions, such as :-

Why did not the KL Air Traffic Control upon discovering that the radar signal for MH370 had disappeared at 1:21:13, and certainly when Ho Chi Minh Air Traffic Control informed it at 1:38:19 that MH370 had not entered Vietnamese airspace immediately alert the Air Force, Military, Police and MAS that something was amiss with MH370?

When and where did MH370 execute the turn-back?

For how long after it executed the turn-back was MH370 in Malaysian airspace, both as a matter of time and also distance?

Is it true that MH370 dropped its altitude from 35,000 ft to 5,000 ft when flying over parts of Peninsular Malaysia?

Is it true that the co-pilot tried to establish contact through his mobile telephone while MH370 was flying low over Penang, and, if so, was he successful, and who was he trying to contact?

What is the basis of the determination by the radio operator on duty in the early hours of 8th March that the unidentified aircraft which he spotted on the army radar was “friendly”?

Even after deciding that it was a “friendly” airplane flying across Peninsular Malaysia, why did the authorities still do nothing?

Why did not the authorities determine that this “friendly” airplane was in fact MH370?

Why did the Air Force not scramble its jet-fighters to intercept and force MH370 to land?

If, as the Acting Transport Minister stated in his Press Statement of 1st May that he was informed by the military at approximately 10.30 a.m. on the morning of 8th March, and he then informed the Prime Minister that MH370 had possibly turned back, why was the entire world not told of this critical fact straight-away?

Instead, why was the first week following the plane’s disappearance wasted searching the wrong place, viz, off the coast of South Vietnam in the South China Sea?

Assuming MH370 had changed its flight plan from the original route to Beijing to somewhere in the west off the waters of Sumatra, what is the basis of determining that it went south in the direction of Australia, rather than north in the direction of the Indian sub-continent?

What facts did the Prime Minister have at hand, apart from the opinion of Inmarsat when he announced on 24th March that MH370 “had ended” in the south Indian Ocean?

With the benefit of hindsight, was the Prime Minister’s announcement premature, rushed and unnecessary?

Is there any factual basis for the recent claim that MH370 had crashed into the waters off Bangladesh?

Why is cargo weighing some 2,934 kg (or 6,468 lbs) still not identified in the cargo manifest released to the public on 1st May, and what is it?

Why did MAS allow lithium batteries totaling 2,453 kg (or 5,407 lbs) to be carried in a passenger aircraft (as opposed to a cargo plane), particularly when the Air Waybill itself expressly states that “flammability hazards exist if the package is damaged”?

COULD THE TRAGEDY HAVE BEEN PREVENTED?

Common sense will indicate that the first few hours after 1:21:13 provided the only window of time when MH370 could have been saved from hijack by passengers or nefarious action by the pilots or some other cause. Because the plane flew for over 6 hours after executing a turn-back, mechanical failure or a sudden explosion can be ruled out. Rather, these actions suggest deliberate human intervention. If the authorities had responded in real time, with the sense of urgency that the circumstances demanded, could MH370 have been saved?

The world has watched with amazement what ordinary Malaysians have known for years. When something goes wrong in public affairs, the automatic response by the government is to cover up. Truth is never the objective. Saving face and avoiding blame are paramount considerations. Collective and individual responsibility of senior government leaders is non-existent. No one ever resigns.

A NBC news report quoted experts giving their opinion that the audio recordings released on 1st May were edited. Lawyers practising in Malaysia are familiar with relevant evidence which disappears or which is fabricated. One only needs to recall 2 well-known cases which had national impact : the letter purportedly signed on 1st May 1988 suspending Tun Salleh Abas as Lord President and the infamous mattress produced in the 1998 Sodomy I trial of sacked Deputy Prime Minister Anwar Ibrahim.

Is it therefore surprising that in a recent survey 74% of Malaysians thought that the government was not truthful in its handling of MH370. If a poll is held worldwide, the result I daresay will exceed 90% of distrust. Yet, as journalist William Pesek correctly observed:-

“Malaysia’s government, on the other hand, appears to be lost in its own propaganda. To the outside world, acting Transport Minister Hishammuddin Hussein performed dismally as a government spokesman : He was combative, defensive and so opaque that even China complained. Yet Hishammuddin is now seen as prime-minister material for standing up to pesky foreign journalists and their rude questions. The government seems intent on ensuring that nothing changes as a result of this tragedy.”

____________________________________________________________________

Tommy ThomasTommy Thomas is a trial lawyer of over 35 years standing.

APPENDIX A

CHRONOLOGY OF EVENTS FROM 12:41 A.M TO 8:19 A.M. ON SATURDAY, 8TH MARCH 2014

TIME EVENT

1. 12.41:00 MH370 took off from KLIA on its scheduled flight to Beijing. On board
were 239 persons : 227 passengers and 12 crew.

2. 12:50:00 MH370 reported to KL Air Traffic Control Centre that it was climbing to
an altitude of 35,000 ft. The plane reported at 1.01 a.m. and 1.07 a.m. that it was maintaining that height.

3. 01:19:24 KL Air Traffic Control instructed MH370 to contact Ho Chi Minh Air
Traffic Control Centre. MH370 acknowledged with “Good night Malaysian Three Seven Zero’.

4. 01:21:04 MH370 was observed on the radar screen at KL Air Traffic Control as it passed over waypoint, IGARI.

5. 01:21:13 The radar label for MH370 at KL Air Traffic Control disappeared from the radar screen. This was the first indication of trouble.

6. 01:38:19 Ho Chi Minh Air Traffic Control inquired from KL Air Traffic Control on
the whereabouts of MH370, and stated that verbal contact had not been established with MH370. Thus, the KL Air Traffic Control had actual knowledge at 1.38:19 that MH370 had not entered Vietnamese airspace. Combined with their knowledge of Fact No. 5 above that MH370 had disappeared from the radar screen of KL Air Traffic Control, alarm bells should have immediately rung at KL Air Traffic Control, and immediate urgent measures ought to have been taken within minutes to share that information with relevant authorities in order to locate MH370.

7. 01:41:21 KL Air Traffic Control informed Ho Chi Minh Air Traffic Control that after the IGARI waypoint, MH370 did not return to KL frequency.

8. 01:46:48 Ho Chi Minh inquired about MH370 for the second time from KL Air Traffic Control, and also informed KL Air Traffic Control that the observed radar blip disappeared at waypoint BITOD.

9. 01:57:02 Ho Chi Minh Air Traffic Control for the third time informed KL Air Traffic Control that there was still no contact with MH370.

10. 02:03:48 KL Air Traffic Control informed Ho Chi Minh Air Traffic Control that MH370 was in Cambodian airspace. This information was received from Malaysia Airlines OPS. Does this not contradict Facts No. 14 and 21.

11. 02:07:00 Ho Chi Minh Air Traffic Control sought confirmation from KL Air Control that MH370 was in Phnom Penh’s frequency.

12. 02:11:37 Ho Chi Minh Air Traffic Control inquired for the fourth time from KL Air Traffic Control on the status on MH370.

13. 02:15:00 In response to query by KL Air Traffic Control, Malaysian Airlines OPS stated that “MH370 was able to exchange signals with the flight and flying in Cambodian airspace”. Does this not contradict Facts No. 14 and 21.

14. 02:18:53 Ho Chi Minh Air Traffic Control responded to a query by KL Air Traffic Control that MH370’s flight path should not take it into Cambodian airspace, and further that it (Ho Chi Minh) had checked with Cambodian authorities who advised that it had no information or contact with MH370.

15. 02:34:01 KL Air Traffic Control enquired from MAS OPS Centre about MH370 but without success.

16. 02:35:03 Ho Chi Minh Air Traffic Control for the fifth time inquired about the status of MH370.

17. 02:53:51 Ho Chi Minh Air Traffic Control requested KL Air Traffic Control to establish contact with MH370 on KL radar frequency.

18. 03:30:01 KL Air Traffic Control inquired from Ho Chi Minh Air Traffic Control whether it (the latter) had checked with next FIR Hainan.

19. 04:25:23 KL Air Traffic Control inquired from Ho Chi Minh Air Traffic Control whether it (the latter) had received any information from Hong Kong or Beijing.

20. 05:09:18 Singapore was asked for information on MH370.

21. 05:20:17 When an unnamed Captain was requested for information on MH370, he opined that based on known information “MH370 never left Malaysian airspace”.

22. 05:41:21 Ho Chi Minh Air Traffic Control for the sixth time inquired about any updates on MH370.

23. 06:14:14 KL Air Traffic Control inquired from Ho Chi Minh Air Traffic Control if Search and Rescue (SAR) operations activated.

24. 06:30:00 MH370 was scheduled to land in Beijing.

25. 08:19:00 Last Satellite communication with MH370.