Thursday, April 19, 2012

Why The Constitutional Court is Wrong on the Cigarette Case

The latest Constitutional Court decision on the Health Law is very surprising. It holds that public places must provide special places to smoke on the basis that people have the human right to smoke. I find this idea as simply preposterous and I am deeply confused on how come the Constitutional Court could make such decision. There are two main issues regarding the decision. First, whether smoking can be considered as a part of human right that is guaranteed by the constitution. Second, whether private parties can be forced by the state to provide facilities for smokers.

Let us begin with the first issue. Smoking is bad for health. No doubt about that. Many countries have already banned the sale of cigarette or heavily taxed the sale, giving less incentives to people to smoke. Even further, many countries have also banned smoking in closed public areas. If you want to smoke, you do it outside, be it in a hot summer or a freezing winter. Even in the United States I can confirm that it is very rare to see people smoke, even in opened areas.

Having said that, it is puzzling that the Constitutional Court can say that smoking should be considered as an inherent part of human rights. Since when? I do see the right to live, but the right to kill yourself slowly? Well that's a new thing. Constitutional Court can of course interpret the constitution, but it does not mean that they can develop a new right out of nowhere. Every junior law students would understand that the basic texts of the laws should be respected as they are unless there is a very strong reason to deviate from using such texts.

The Constitutional Court further argues that because the law has not deemed smoking as an illegal activity, it means that smoking is a right. This is completely wrong and illogical. Saying that an act is not prohibited does not automatically mean that such act becomes an inherent right of human being. If the law says that a dangerous activity is temporarily permitted, it does not mean that the law say that people have the absolute right to do such activity all the time. Instead, it should be considered as a special case, an exemption.

People know that cigarette industry contributes a lot of incomes to the state. However it is not clear whether the benefits of having the industry outweigh the costs imposed to the citizens health and the opportunity costs in case the money used to buy cigarettes can be directed to other useful means. That will not be the focus of this article, but I can say that it can shed some lights on why smoking is still permitted in Indonesia. There are too many stakeholders involved.

Furthermore, if we can develop a right to hurt ourselves, I do not see why the law should prohibit people to use drugs or to perform euthanasia? As long as they agree to do so, why punish them. In case of euthanasia, why the criminal code punishes people who assist someone in their suicide attempt? Saying that the right does not exist because the laws deem these acts as illegal will not make any sense. If the Constitution says that the right to die or to hurt yourself exists, the Constitutional Court should declare that the above laws illegal for contravening the constitution. As simple as that. I wonder though whether the Constitutional Court will be brave enough to do that.

Now some people argue that actually smoking is not dangerous to our health, that it is a part of a bigger conspiracy, and therefore the argument that approving smoking is the same with approving the right to hurt yourself should be rejected. Again, I don't see any good reason why there should be a conspiracy for banning cigarettes. Basic economic analysis can show the flaws of this conspiracy theorist.

In a capitalistic world, profit is the most important thing. People can even produce hazardous materials for the sake of profits, as long as they compensate the victims for hurting them (due to the hazardous materials). In law and economic terms, we call this as the liability rule. If that's the case, why many developed states should bother with the cigarette industry? As long as they can compensate the victims, who cares. Furthermore, as long as they can pay a huge amount of money to the state in the form of excise tax, why restrict them from selling the cigarettes?

The answer is quite simple. From economic points of view, these states deem that the costs of having the cigarettes industry in their countries outweigh the benefits. Cigarette companies are not stupid, they have a very strong lobbying power, and yet, as an interest group, they fail to induce the developed countries to maintain their existence. This means that the costs of having them in such countries are so high that even the benefits that they provide cannot justify their existence. Each countries might have different views on this issue, but you can see the point.

Now, let us move to the second point. Can the state forces private parties to provide special places to smokers? I am a defender of people's freedom and I will clearly say this: the state should only be permitted to force private parties and its citizens to provide something for other people in special cases where the benefits are clear and outweigh the costs, and the provisions of such facilities are highly important for the sake of the people. None of these points are satisfied by the recent decision of the Constitutional Court.

And I find this fact as deeply problematic. How could we let the state force us to provide something without clear benefits? It's already perverse enough that we must acknowledge the right to smoke as a basic human right, and now the Constitutional Court says that we should also provide the facilities for the smokers? I mean, like really?

Some people say that since the majority of Indonesian people are smokers, it is fine if the state should provide facilities for them and that other non smokers should respect that. Well if you agree that the majority opinion should dictate anything in this country no matter what, you should not protest if we see cases where people using their status as a majority to oppress the minorities (like in the case of minor religious sects or LGBT groups). Hey, we're the majorities anyway, it's your task to respect us, and we should be free to do what we want since we are the majorities. You do realize that adhering to such principle would be a disaster.

Every aspiring law students realize that absolute power tends to corrupt absolutely. That is why we need a check and balance mechanism. People are not angels, and if we always let the majority to decide anything without proper counter measures, that would be a perfect recipe for oppression. In short, the latest Constitutional Court decision is regrettable. Making a wrong policy is one thing, after all not all judges are equipped with such skills. But making a wrong legal interpretation that every first year law student should know? That is absolutely unacceptable. Well, the fight is still going on. Let us see how the central and regional governments will deal with such issues.

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