Antara & Anita Rachman – The Constitutional Court on Tuesday annulled an article in the 2009 Health Law which has stopped building owners across the country from providing a special smoking zone.
Anti-tobacco activists earlier filed a judicial review on Article 115 of the law, which they said prevented local administrations from imposing strict sanctions against offices and shopping malls that did not provide a special section to keep the rest of the premises smoke-free.
The article stipulates that offices, malls and other public spaces must have an enclosed smoking zone while places like hospitals, schools and places of worship should be smoke-free entirely.
But the article also says local authorities "can" ensure that such requirements are met by building owners, which the plaintiffs argue could create legal uncertainty in enforcing the law.
Constitutional Court chairman Mahfud M.D. said that the court in its ruling on Tuesday "had granted the plaintiff's motion in its entirety."
Judge Hamdan Zolva told Tuesday's court session that the law was meant to ensure the health of the Indonesian people, including stopping smokers from endangering the health of others. "Therefore, the local government must push for smoke-free areas to be established in working places, public spaces and other areas," Hamdan said.
The court, he said, agreed with the plaintiff's argument that the word "can" in the article had allowed the government to "disproportionately enforce and regulate a special smoking area." But Tuesday's ruling would also have its effect on tougher anti-tobacco provincial regulations.
In 2010, Jakarta issued a gubernatorial decree that prohibited smoking inside all public buildings, threatening business owners with losing their operating permits for failing to comply. With the article revised, building operators in Jakarta will again have to allow people to smoke only in special areas inside their premises.
Arist Merdeka Sirait, chairman of the National Commission for Child Protection (Komnas Anak), said the court was not consistent with allowing people to smoke under some conditions.
"If you have told people that tobacco is bad and dangerous, why still let them smoke under certain conditions? It says you can smoke as long as you are not out in public," he said.
Around 200,000 deaths a year result from tobacco-related illnesses in Indonesia, the only country in Asia yet to ratify the United Nations Framework Convention on Tobacco Control.
The regulation, mandated in Article 116 of the 2009 Health Law, should have been passed by October 2010. But a draft of the regulation is still lingering with the Coordinating Ministry for People's Welfare.
According to data from the University of Indonesia's Demographics Institute, around 70 percent of adult males in Indonesia smoke while the number of female smokers has increased by 300 percent over the last 12 years.
The number of child smokers has increased too, up from 71,000 children aged 10 to 14 found to be smoking in 1995, to 426,000 in 2010, the institute says.
Lax smoking regulations including access for children and limited regulations on advertisements are prominent factors responsible for the increase in young people taking up the habit, activists say.