The case is a dispute between Lion Air airlines against its passenger. The Indonesian Supreme Court (Mahkamah Agung) sentenced Lion Air to pay compensation for refusing to flight the passenger from Medan (Indonesia) to Penang (Malaysia) because – among others – the passenger did not have Visa to enter Malaysia. The Indonesian Domestic Court ruled Lion Air violates the ASEAN Framework Agreement on Visa Exemption (AFAVE).
Facts
Mr Sutan Erwin Sihombing was a prospective Lion Air passenger with flight JT 1286, Medan (Indonesia) to Penang (Malaysia) on June 24, 2010. However, when he wanted to check-in, Mr Sihombing was rejected by Lion Air officer. The officer refused to give Mr Sihombing a boarding pass and cancelled his departure. The reason for the cancellation, as mentioned by Lion Air Chief Officer in Counter Ms Kurniawati (as the second defendant in this case) because Mr Sihombing did not have an entry visa to Malaysia, could not show a return ticket from Penang to Indonesia, and was not willing to show some amount of money as collateral buy a return ticket in case of deportation from Malaysia.
Mr Sihombing did not accept the reason for the cancellation of his departure. He then sued Lion Air and Ms Kurniawati to the Medan District Court and won his lawsuit. Later, Lion Air filed an appeal to the North Sumatra High Court and then rejected by the High Court. This case finally brought by Lion Air to the Supreme Court.
Judgment
In the judgment 2130K/Pdt/2013, the Supreme Court rejected Lion Air's cassation case and ruled the decisions of the Medan District Court and North Sumatera High Court to be correct. The Supreme Court sentenced Lion Air to pay a moral compensation of IDR 40 million as decided by the Medan District Court. The Supreme Court said that Lion Air and Ms Kurniawati had defaulted and ignored the valid ticket held by Mr Sihombing.
The Supreme Court used the ASEAN Framework Agreement On Visa Exemption signed by the Government of Indonesia on July 25, 2006, and then ratified by Presidential Regulation Number 19 of 2009 as one of the bases for its decision. The Supreme Court's panel of judges consisting of Prof. Dr. Abdul Gani Abdullah, SH; Dr. Mukhtar Zamzami, SH, MH; and I Gusti Agung Sumanatha, SH, MH, stated:
"The reason the Defendants (Lion Air and Ms Kurniawati) refused and cancelled the Plaintiff's departure was that the Plaintiff (Mr Sihombing) did not have a visa and could not show a return ticket from Penang to Medan or could not show an "appointment money" of 1500 Malaysian Ringgit, could not be justified because of the agreement on the ASEAN Cooperation Framework (Framework Agreement On Visa Exemption) which waives visa obligations;"
Commentary
This unique case was reported in several online media in Indonesia. Lion Air's preparedness to refuse to send passengers who already have a ticket because he did not have a visa, of course, does not have a solid basis. Most people in Indonesia understand that travelling to ASEAN countries does not require a visa. The practice is already underway.
In addition, the reason for Lion Air is also considered not necessary and far-fetched, because visa matters are not the duty and responsibility of Lion Air as the airline, but rather the duty and authority of the immigration agency. Although this case sounds ridiculous, it proves that the Indonesian domestic court has correctly and adequately enforced the ASEAN law instruments.
By Ali Salmande, SH, LLM (Alumnus of ASEAN Law Academy 2019 and Researcher of Kolegium Jurist Institute)
Photo Credit: https://commons.wikimedia.org/
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