No holidays for the sick: functions and powers of aviation regulators during COVID-19 pandemic

Background
CAAM and MAVCOM
Comment

In the midst of the COVID-19 pandemic and in a move to boost economic activity through medical tourism in Malaysia, the government has announced that it will partially reopen Malaysia's borders to medical tourists from designated green zone countries (eg, Brunei, Singapore, South Korea, Japan, Australia and New Zealand), allowing them to fly in via commercial or chartered flights.(1)

Background

The first chartered Air Asia medical flight from Medan, Indonesia carrying Indonesian medical tourists was delayed as the state government where the flight landed had opposed the entry of the tourists due to a recent spike in COVID-19 cases. Prior to the flight's entry, the Civil Aviation Authority of Malaysia (CAAM) had approved the arrival of the chartered flight from Indonesia.(2)

Malaysia's transport minister had commented that CAAM, whose core function is to regulate the safety and security of civil aviation,(3) did not receive any notice of objection from the state government regarding the chartered flight's entry. It also received no instruction from the National Security Council to disallow chartered medical flights from entering the state.(4) At this juncture, it begs the question of whether aviation regulators have adopted the necessary measures.

CAAM and MAVCOM

In relation to aviation licensing, any person intending to undertake carriage by air or use any aircraft for the carriage of passengers for hire or reward for any journey which stops in Malaysia must apply for an operating licence from the Malaysian Aviation Commission (MAVCOM) – either an air service licence for scheduled journeys(5) or an air service permit for unscheduled journeys.(6) One of MAVCOM's core functions is to regulate economic matters relating to the civil aviation industry.(7) Applicants must also apply for an air operator's certificate from CAAM.(8) Other licensing requirements that must be fulfilled are obtaining an air traffic rights certificate(9) and a certificate of airworthiness.(10)

In addition to the above, CAAM and MAVCOM are empowered to take all necessary or expedient action regarding their functions.(11) CAAM is also empowered to prohibit or restrict the flight of aircraft for specific reasons, including national defence.(12) In light of the pandemic, CAAM and MAVCOM must also ensure cooperation with other government agencies or authorities,(13) such as the National Security Council, on the implementation of standard operating procedures to curb the spread of COVID-19.

The regulators have made efforts to provide relief to affected organisations and individuals while still maintaining aviation operational activities. CAAM issued exemption notices to provide exemptions from the standard validity period of, among others, licences, ratings, certificates and qualifications of relevant persons,(14) while MAVCOM temporarily provided airlines with leeway in terms of time to respond and complete refund requests from consumers but still required airlines to address complaints and refund requests on a best-efforts basis.(15)

Comment

The government's move to encourage medical tourism in such unprecedented times is commendable and, therefore, all parties involved, including CAAM and MAVCOM, should strive to strike a delicate balance in encouraging economic activity in the aviation sector and at the same time keeping COVID-19 infections at bay. It may seem like a tough act, but only time will tell.

For further information on this topic please contact Sandhya Saravanan at SKRINE by telephone (+603 2081 3999) or email (sandhya@skrine.com). The SKRINE website can be accessed at www.skrine.com.

Endnotes

(1) Further information is available here.

(2) Further information is available here.

(3) See Section 16 of the Civil Aviation Authority of Malaysia Act 2017.

(4) Further information is available here.

(5) See Section 35 of the Malaysian Aviation Commission Act.

(6) See Section 36 of the Malaysian Aviation Commission Act.

(7) See Section 17 of the Malaysian Aviation Commission Act.

(8) See Regulation 110 of the Civil Aviation Regulations 2016.

(9) See Section 66 of the Malaysian Aviation Commission Act.

(10) See Regulation 26 of the Civil Aviation Regulations.

(11) See Section 17 of the Civil Aviation Authority of Malaysia Act and Section 18 of the Malaysian Aviation Commission Act, respectively.

(12) See Regulation 80 of the Civil Aviation Regulations.

(13) See Section 17(2)(b) of the Civil Aviation Authority of Malaysia Act and Section 18(2)(b) of the Malaysian Aviation Commission Act, respectively.

(14) Notice ASD 005/2020 dated 9 June 2020 and Notice CAN 2/2020 dated 29 May 2020.

(15) Further information is available here.