Wednesday, February 24, 2016
Use of Act 765, a state-sponsored mechanism to prevent suits by MH370 victims' family members?
The group made this allegation in a statement published on Voice370's Facebook page today which we reproduce below:
"We, Voice370, the support group for families of those on board missing Flight MH370, are dismayed and disappointed by the Malaysian government’s unjust use of an Act of Parliament to suspend and/or deny existing rights in law, including also access to justice mechanisms, for the benefit of a private business, namely Malaysia Airlines Berhad (MAB).
The national flag carrier, Malaysia Airlines Systems Berhad (MAS), which operated MH370 and MH17 was obliterated by the Malaysia Airline System Berhad (Administration) Act 2015 [Act 765] and is now known as Malaysia Airlines Berhad (MAB) a wholly-owned private company. Both the similar sounding old MAS and new MAB are owned by Malaysia’s Khazanah Nasional Berhad, a sovereign fund.
Malaysia tabled and passed at great speed Act 765, which came into force on Feb 20, 2015.
The mischief of Act 765
Khazanah Nasional was the sole owner of the old MAS, and the new company, MAB. Effectively MAS and MAB share not only the same owners but the same CEO and a majority of the staff too, thus it is merely a name changing exercise. Typically, in such a situation, the new entity MAB or the owner, Khazanah, should legally take over all the obligations and responsibility of MAS, including incidents like the unresolved disappearance of MH370.
Instead they are cherry-picking the assets they want and the liabilities they don’t want. They have ensured they get the best of both worlds with little or no risk of any repercussions.
Through Act 765, an administrator was appointed on or about May 25, 2015 for MAS and a moratorium established, for a maximum period of two years, on any legal process against MAS and its subsidiaries. Our deadline for taking any action is March 8, 2016.
When the administration and moratorium end, all monies, assets and business of MAS would most likely be transferred to the new legal entity MAB. Therefore there will be nothing left in MAS when the said moratorium ends, making it pointless to sue them.
This appears to be MAS’s ploy to shield itself from liability of negligence or other claims, which may not be covered by their liability insurance. This is a blatant and despicable act of irresponsibility and cowardice by MAS, openly aided and abetted by the Malaysian government.
The legal manoeuvres go as far as to pass legislation preventing/severely limiting rights to sue in Malaysia (Section 33 Act 765) or anywhere else in the world and even going the extra mile to ensure no order obtained, either in Malaysia or anywhere else in the world be enforceable (Section 34 Act 765).
This would also effectively shield those criminally complicit for the disappearance of MH370 - a state sponsored mechanism to protect criminals if this is eventually established.
Selective payments or transfers of assets were made to creditors deemed by MAS and/or the Malaysian government to be ‘relevant’ and no passengers or families of passengers of MH370 were included among the creditors.
Act 765 - the threat to MH370 families
MH370 families need the MAS administrator’s permission to file lawsuits against MAS!
There are currently cases that have been initiated and filed against MAS as the carrier by next of kin (NOK), now pending before the courts. The effect of the moratorium is that all these actions and cases could stop, and not proceed further until administration of MAS ends, or there is sanction for litigation by the administrator.
NOK do not just lose their right to justice, but also will have to shoulder additional losses, including all the monies utilised for lawyers, court fees and time above all the additional emotional heartache we have been enduring for almost two years now should permission to file or prosecute cases against MAS be withheld.
This is merely an extension of the poor treatment of MH370 NOK by Malaysia Airlines and the Authorities from Day 1. Act 765 in effect has the obvious aim of placing MH370 families at the feet of insurers with the veiled threat of a denial of permission by the administrator to file lawsuits.
This emboldens the insurer to offer pitiful compensation despite the gravity of the disappearance and complete mishandling of the incident and mistreatment the NOK have been are continuing to be subjected to.
The Malaysian government has taken the necessary steps to protect the airline and its executives from responsibility. The government and the airline believe that they can put MH370 behind them and that the families should be happy with whatever insurance payments are offered.
What is next? In June the current phase of the search will be complete and the government has indicated that the search will end. What is going on is clear. Malaysia Airlines has avoided individual responsibility for MH370 and the government will soon try to put the entire tragedy, which it sees as an inconvenience, in its past.
Both parties have conveniently disregarded provisions contained in ICAO’s Montreal Convention, Doc 9973 and Doc 9998 that are not in congruence with their nefarious agenda.
We would urge the government of Malaysia and the administrator of MAS to act honourably, in consonance with human rights, rule of law and international obligations, and facilitate the pursuance of the rights, claims and remedies by the families of passengers of MH370 through the legal process of courts without exception, should families choose to do so.
We believe that Malaysia’s use of the moratorium on lawsuits must be sparingly applied and restricted to the patently frivolous and vexatious cases, and not to lawsuits that families of MH370 passengers intend to pursue against the airline and / the government/other connected parties.
We appeal to the world at large to take note of the above facts and circumstances and closely watch Malaysia and MAS’s administrator’s actions in the coming days and weeks. We appeal to world leaders and international institutions in the aviation sector to prevail upon Malaysia and urge it to resist any temptation to deny permission for lawsuits by passenger families.
In the worst case, should permission from the administrator for legal redress not be forthcoming due to procedural issues within the stipulated time for such claims, we urge Malaysia and other relevant authorities to extend the time period for such claims/lawsuits beyond March 8 by at least 60 days.
Voice370 will not stand by this injustice silently. The search must go on and when the facts are known, the companies and individuals responsible for the loss of MH370 must be brought to justice."
Posted by wikisabah at 4:16:00 PM