The Director of Civil Aviation (DCA), Malaysia, on 29 January 2014, made the official declaration: MH370 was ‘an accident in accordance with the Standards of Annexes 12 and 13 of the Chicago Convention and that all 239 of the passengers and crew onboard MH370 are presumed to have lost their lives.’

Reference has been made in the declaration to the definition of the term ‘accident’ under the Convention to include ‘aircraft is missing’ and that ‘an aircraft is considered to be missing when the official search [italics mine] has been terminated and the wreckage has not been located.’

The DCA also proclaimed, ‘We have endeavored and pursued every credible lead and reviewed all available data.’

Predictably, the declaration has been condemned as premature, and the manner in which the affected families were kept out rather than told first has been squarely criticised as outrageously insensitive. Family members are ‘respectfully referred to as next-of-kin’ by the DCA, but the manner this time as with earlier occasions was anything but respectful. In reality, respect was reserved for the media, while the affected families had been dealt with perhaps as an irritant at best, and a nuisance at worst.

With the benefit of some time that has elapsed, one feels ready to raise a few questions.

After the Preliminary Report in 2014, which was unduly delayed and found riddled with gaps, there has been no other comprehensive report offered for public consumption and scrutiny. Indeed, one would have expected that the declaration by the DCA would have been preceded if not accompanied by such a report.… A report that outlines what leads were pursued, why some or most were dropped since we only know that nothing was ‘off the table’ for the most part of the last 11 months. There is just a hint of a report in the offing. If true, one wonders: why the hurry to make the declaration? It would appear a case of conclusions and judgments first, reasons at leisure.

MH370 was an ‘accident’, considered ‘missing’ since the ‘official search has been terminated’. The declaration makes amply clear that the initial search and rescue, and subsequent search and recovery were in conformance with relevant international conventions. When then did the ‘official search’ end? Why the announcement at this time when the search in the Indian Ocean has not been concluded or discontinued? Is it because the search in high-probability zones for the crash returned nothing of significance? What is then the status of the JACC orchestrated search that continues? What international obligations and accountability is enjoined on the parties to the ongoing search from here on? If the Chinese and the Australians were consulted before making the declaration as some reports have suggested, is the declaration a precursor to winding down the search along the seventh arc? What assurances and guarantees do we have that the search will see its course?

We have heard very little on the work of the three committees connected to MH370 announced by Hishamuddin, the Malaysian cabinet minister, many months ago. Neither have we heard anything at all about the progress of the South Korean lead investigator appointed many months ago. Does his work kick in only now? Is he for real? Do we see a role for the committees and the investigator to inform the public, the world at large, or were they mere structural pronouncements to ease public pressure and deflect attention?

The police came by to seek DNA samples/profiles this morning, on advice from the Malaysian police. The DNA chasing process has gone on for a while in other countries too. This made sense if debris was located, and recovery of remains of passengers were a merely a follow through, a certainty. Indeed, the process of samples collection as shared amongst families raised hopes that some significant pronouncements were in the offing. Alas, the declaration put paid to any such hopes. Families have received no advance communication from the Malaysia Airlines or the Malaysian government that such a collection process was being pursued. There is no indication as to who the custodians will be and where the will samples be stored, and no assurances that the samples will be used only for the purposes named. The assumption perhaps is that term used, ‘ante-mortem’, says it all. Does it? In light of the complete absence of any debris or remains and by the government’s pronouncement making it clear that it has run out of ideas, it would appear that the pursuit of DNA samples as a way of preparedness is like asking for people to practice walking in zero-gravity chambers, just in case they may have to fly to the moon. Just in case …

The government of Malaysia has on numerous occasions sought cover to explain away lapses and blunders regarding MH370 by calling it unprecedented. Assuming that the declaration by the DCA was to smoothen access to compensation, is the international community and its legal luminaries bereft of ideas and tools to deal with the issue of compensation, and mitigating the financial hardships of grieving families? Are we not taking recourse to Convention to deal with the unconventional, the unprecedented?

Image: NBC News

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