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Tobacco use and citizens' rights

BY Chris E McClure

Monday, July 29, 2013

SINCE the imposition of the "smoking ban" last Monday, July 15, more and more voices of concern are being raised regarding certain aspects of the regulation, including tourism interests, business owners, as well as parliamentarians from both sides of the House. And it is not true, as Attorney General Patrick Atkinson is reported in the press as saying, that the opposition is only from smokers seeking to continue their unhealthy habit where and when they please. There are many non-smokers, including myself, who have been very concerned, not only with the untidy and hurried way in which the legislation was brought into effect, but also with aspects of the regulations which are clearly excessive and overreaching.

No one I have heard to date has objected to the general principle of the ban. However, in seeking to do so, the rights of smokers must also be taken into account, as laws in a democratic society must seek to protect the rights of all its citizens, whether or not we endorse the use of what is still a legal substance in Jamaica.

Many of us, therefore, who still value personal freedoms take exception to the statement on the Health Ministry's website that the new regulation "... does not allow for the establishment of smoking areas in any place of business". Health Minister Dr Ferguson is quoted as saying: "We cannot allow the establishment of death chambers and this is what a room filled with persons smoking would be." By that token, the minister may as well go the whole way and ban the smoking of cigarettes altogether, as each cigarette could be called a "death stick". The point here is that if a group of adults, well aware of the potential health risks of smoking, chooses to do so in someone's living room, or in a private clubhouse, business office or courtyard, they ought to be free to do so, as they would not be endangering the health of any non-smokers by the practice.

But then some have argued that such restrictions would be good to stop smokers from their 'nasty habit' anyway, and the health minister himself is quoted as saying that "someone has to save these people from themselves". I would submit that this kind of mindset is dangerous to adopt in a democratic society, no matter how well intentioned it may be.

Following that same principle, what would prevent the minister from announcing tomorrow that the sale and consumption of all alcohol will be banned in public spaces, given its known health risks. Or consider that World Health Organisation statistics show that obesity is a major risk factor for numerous preventable diseases, including diabetes, hypertension, cardiovascular disease and certain cancers. Does the minister intend, in the interest of public health, to make it a criminal offence for someone to weigh over 250 lb, or to ban the sale of high-fat and high-calorie foods to the public?

This notion of imposing legislation "to save people from themselves" has no place in a democracy that cherishes personal freedoms, and the rights that we deny a particular group today are the same rights that we lose in another area tomorrow.

However, this matter of specified areas and spaces has been a moving target. First we heard, and the regulations state, that smokers would be allowed to light up outside a building beyond five metres from entryways or windows. But later in the regulations, in the Second Schedule, we see that smoking is prohibited in all public places and workplaces, and these areas are then very broadly and vaguely defined.

Public places are to include not only buildings and places of assembly, but all enclosed spaces, but then these enclosed areas include "... any space covered by a roof, or enclosed by one or more walls ..." How can a space be enclosed by one wall? That would include any yard with a fence at the end, or a sidewalk with a wall running along it!

And then workplace is defined as any area or place used by people during their employment. No wonder then that we had representatives from the Health Ministry stating adamantly within the first few days of the ban, that all areas of all workplaces, including the grounds, would be no-smoking areas. This is one of the sticking points that had hotel owners up in arms last week. Clearly, that is overreaching beyond the stated intentions of the regulations, as well as outside the bounds of practicality and common sense. It would also require that smokers wishing to light up would not only have to step outside a building, but find their way off the compound and onto the sidewalk, making sure they are nowhere near a wall or within five metres of a bus stop.

The regulations also include all educational institutions as prohibited areas for tobacco use. What about tertiary institutions with adult students, some of them resident on campus? Surely, they should be allowed their democratic right to use this legal substance in designated areas that pose no threat to non-smokers. And with regard to smoking in one's own home, this has been eloquently addressed by government Senator KD Knight. Blowing tobacco smoke in your helper's face is one thing, but to hold a person criminally liable for smoking a cigarette on his own verandah, by designating his home a workplace, is quite another.

Now that members of the hotel and tourism industry have set up a task force to press for modifications and more reasonable terms as to how the ban is to be enforced, I trust that other business sector and civil society interests will make use of the sub-committee of Cabinet set up to have consultations with all stakeholders, and to consider issues of concern. This, however, is something that should have been done before the law was implemented.

One other area of major concern is the matter of sanctions and penalties associated with the new regulation. In its present form, it is not a minor offence, as some believe; it is not like a traffic ticket, only with stiffer fines. What this law says is that conviction for lighting up or selling a cigarette in prohibited areas is now a criminal offence, making the offender not only liable to hefty fines and prison time, but also imposing a permanent criminal record. I find it disturbing when an administration is so eager to criminalise its citizens in this way, and to impose such draconian penalties.

And for those that believe that smokers should just quit the habit, they fail to realise that for some, smoking is addictive, like alcohol, and they rely on their daily smoke to calm their nerves. I find it unethical and inhumane to seek to deny them that right, even if I do not endorse tobacco use. I believe that the emphasis of the Health Ministry at this time ought to be more balanced public education and facilitating the availability of products that help smokers quit, rather than criminalising their use of tobacco.

A society's laws and regulations ought to protect the rights of its citizens, without impinging on the rights of others. Once our laws overstep these bounds into "this is what is best for you", we enter the realm of morality laws. This is what dictatorships and fundamental theocratic states do — it has no place in a free and democratic society.

Chris E McClure is an educator and entrepreneur.