21 January 2011

Smoking and Human Rights...

Is smoking a human right? The argument that bans prohibiting smoking violate the basic human rights of smokers or that they violate constitutionally guaranteed rights of citizens are arguments that have been tried and failed in a number of jurisdictions. The latest jurisdiction to have a crack at the "smoking bans violates my human rights" argument is about to unfold in Jakarta, Indonesia.

I am a non-smoker. And, to be honest, I am in favour of banning smoking in public places. If smokers want to smoke, then I believe that they have a right to do that. However, that right does not extinguish (no pun intended) my right to be in a smoke-free public place.

A smoking ban generally applies to public places, including bars and restaurants. The United Kingdom has had bans in place for some time. These bans have been challenged through the courts and failed. The courts have tended to hold that even the European Convention on Human Rights, particularly Articles 8 and 14 with regard to private life, family and discrimination, does not protect smoking as a recognised human right. The US is not immune to the drive to clean-up public areas from cigarette smoke. Although, the rate of success in this jurisdiction has been less than in some others.

Australia, for example has had a prohibition in place for some time. In fact, it is now illegal for people to smoke in cars where children are passengers.

The People's Rights Advocacy Team (TAHR) is set to argue that Gubernatorial Regulation No. 75 of 2005 as amended by No. 88 of 2010 discriminates against smokers. The TAHR argument states that the regulation criminalises a basic human rights and makes criminals of smokers who are partaking in a legal product. The TAHR lawyer, Habiburokhman has indicated that TAHR has submitted a judicial review petition to the Supreme Court and made a request of the President to review the regulation. However, these petitions have been submitted on behalf of other parties by TAHR.

Not content to pursue these petitions on their merit, TAHR have suggested that those in favour of the gubernatorial regulations, and those who pushed the regulations through the legislative process, were only doing so because they were the recipients of funds from foreign organisations. Strangely enough, TAHR, when pressed, were not so forthcoming in saying exactly who accepted what and where, or who, it was accepted from.

In essence, the same arguments in reverse are going to be lumped on TAHR and anyone in support of the petitions as being the puppets of big tobacco who are covertly funding these petitions. But, in a similar vein, the proof of who is funding what and where and when in this regard remains to be seen.

This might be a case that I follow as there are some interesting legal arguments to be made and precedents to be established.

But as an aside to the human rights of smokers, an interesting aspect of smoking bans is what impact they will have on employment levels at tobacco companies. Of particular interest is whether the ban will see a reduction in smoker numbers or demand for cigarettes. Any decline in demand is likely to see tobacco companies look to reduce staffing levels. So, I wonder who is looking out for the rights of employees to find suitable and sustainable employment. Is the government going to pick up the slack and provide for those employees who find themselves the victim of retrenchment? Perhaps this is an issue for a different blogpost.

No comments: