Tobacco Use And Citizens’ Rights

Emphasis of the Health Ministry ought to be more balanced public education and facilitating the availability of products that help smokers quit, rather than criminalizing the use of tobacco.

 

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.

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