Tobacco Articles On Health Law: Efforts To Tobacco Control
May be we can claimed, throughout the history of judicial review of Law at the Constitutional Court, Health Law Section tobacco most frequent judicial review to the Constitutional Court as guardian of constitution. There are at least 5 (five) cases about tobacco’s article, the first ever “lost” but come back again.
What’s the reason why we need tobacco articles on Health Law? The future of children and adolescents at risk from the dangers of nicotine addiction would be disrupted. The real threat of the right to life, survival, growth and development and the protection guaranteed by Article 28B, paragraph 2 of the 1945 Constitution. Not just health rights but the right to life which is the main right or supreme right.
Parties which against the article say tobacco articles are discriminatory and eliminate tobacco plants. Parties that support the tobacco article argues that there is no word or phrase in the Health Law section that prohibits growing, selling and using tobacco.
There is only control the use. Prohibition and control are two different legal concepts. Control is prevalent due to the addictive nature of tobacco. Because it’s not the original intent of legislators and the ratio of the tobacco article is a discriminatory legal norm, because we know that the nature of nicotine addiction on tobacco ingredients.
The provisions of Article 113 paragraph (1), (2) and (3) of Law Number 36 Year 2009 on Health (“Health Law”) is for the fulfillment of State obligations towards its people from threats to health hazards, disease and disability and death caused by tobacco and tobacco products, which has been scientifically proven true.
The provisions of Article 113 (paragraph (1), (2) and (3) Health Law is the realization of the constitutional rights of all people, therefore:
- Protection and fulfillment of all people to health and the highest standard of health, which is guaranteed in the 1945 Constitution;
- Protection and fulfillment as well as the response against the global epidemic of tobacco-related diseases as a result. Therefore the existence of Article 113 paragraph (1), (2) and (3) Health Law as an effort of State responsibility for compliance with health rights guaranteed in the 1945 Constitution;
- Protection and fulfillment of all peoples right to life and right to survival as the supreme rights guaranteed by Article 28A of the 1945 Constitution. Based on scientific evidence that consumption of tobacco products and exposure to cigarette smoke is a cause of death and cause various diseases;
- Protection and fulfillment of children’s rights to life, survival, and protection from violence and discrimination are guaranteed explicitly in Article 28 B paragraph (2) of the 1945 Constitution.
Provisions of Article 113 paragraph (1), (2) and (3) Health Law is simply not qualified as legal norms that are discriminatory, and does not constitute a violation of the right to justice. Because it is substantially tobacco and tobacco products are addictive and harmful scientifically proven health and even result in death. The provisions of article 113 Health Act there is no norm which include textually as an effort to ban tobacco plants, eliminate tobacco farmers or industry. Phrases used it “safeguards the use of” not the removal of usage, so it is not true there is discrimination, which is actually a protection.
Worry and illusions about the elimination of tobacco farming, or eliminating tobacco farmers income is too false and hyperbolic, because the norm of Article 113 paragraph (1), (2) and (3) Health Law does not contain a legal norm or the original intent for eliminating tobacco or eliminate tobacco farmers. But it is true that the norm of the Health Law article 113 is the legal norm just for tobacco control. Very different tobacco control with the removal of tobacco farming.
Formal judicial, the use of the tobacco term is not new because term of tobacco has been used in Government Regulation (PP) No. 19 of 2003, which in Article 1, point 1 states of tobacco contain nicotine and tar with or without additional materials. Article 1, point 2 states “Nicotine is the substance, or material contained in the compound pirrolidin Nikotiana tabacum, Nicotiana Rustica and other species or synthetic which can lead to dependence is addictive”.
Using terms of tobacco also accepted as a universal norm because it is used in terms of the Framework Convention on Tobacco Control (FCTC) and also in the International Classification of Disease and Related Heart Problems (ISCD 10 WHO 1992) in the F 17 code which reads “mental and behavioral disorders due to use of tobacco”.
Article 113 paragraph (1), (2), (3) Health Law just does not have a norm that prohibits the use of tobacco or tobacco products as an addictive substance, but the truth:
(a) Conduct “safety of use” so as not to disturb and endanger the health of individuals, families, communities and the environment [Section 113 subsection (1)];
(b) To control for the “production, distribution and use … that must meet the standards and or requirements” [Section 113 subsection (3)].
Article 113 paragraph (1), (2), (3) Health Law really is the protection and fulfillment of the constitutional right to health and right to life, survival and development of the child. Because in the context of economic problems and cultural rights, State guarantees to all maximum efforts possible to meet the state of children’s rights set forth in the provisions of Article 6 paragraph (1) and paragraph (2) CRC.
Again, the original intent of tobacco articles on Health Law is for tobacco control purpose. We are happy now , because Constitutional Court give us several great and landmark decision on tobacco control.
