What is there to light up about? - Pt 1

Sherene S. Golding Campbell, Contributor

THE RECENT Tobacco Control Regulations have created much ado, but about something fairly major. No one disputes the harmful effects of cigarettes and tobacco products, and the risk of very serious and, sometimes, fatal illnesses that can result. Already, we have launched into the emotional arguments designed to stir us into vilification of every person that has ever lit a cigarette. A pause is necessary for critical analysis of the regulations which the minister of health, and by extension the Government, so stridently stands behind.

The Public Health (Tobacco Control) Regulations, 2013, came into effect on July 15, 2013 by virtue of the minister's dictate under the Public Health Act (the Act). Section 14 of the Act allows the Minister to promulgate regulations without any reference to Parliament and, therefore, there has been no opportunity for the people's representatives to weigh in on the restrictions imposed, and liabilities assigned to anyone found in breach of the new regulations. The principles of good governance and transparency would seem to dictate a different approach from the minister, especially since there is nothing stopping him from tabling the regulations prior to bringing them into force, notwithstanding that, this is not a requirement. It seems to me that such a serious piece of legislation should have had the benefit of parliamentary debate as well as consultations, not just on the broad principles of tobacco control, but on the regulations themselves, before being brought into effect.

I am sympathetic to the need for a minister to have the power to act quickly when dealing with matters related to the public health of our citizens. However, we must be careful that in granting the minister the power to make regulations without parliamentary oversight, we do leave too much room for abuse of that power as I believe has happened here, whether intentional or not. The Tobacco Control Regulations do not fall under the same category as a public emergency requiring action of the minister without oversight. I am sure I am not alone in this view given the impact it will have on so many people across the length and breadth of the country. The minister has decided, however, and so now we have to deal with it.

I note with concern also, the widespread restrictions laid down in the regulations which appear to have little to do with the stated purpose and intent of the policymakers who conceptualised the regulations. For example, regulation 12 criminalises every person who smokes or holds a lit or electronic tobacco product in or within a five-metre radius of the entrance, exit, window or ventilation intake of a public place, workplace or public conveyance and includes a number of specified places listed in the Second Schedule of the Act. A public place is defined as a structure, facility or enclosed space accessible to the public or a place of assembly or other collective use by the public.

The workplace is defined as any area or place used by persons during their employment, work or contract for services, and includes among other things, a residence or vehicle during any period in which that residence or vehicle is the place or site of employment, work or execution of a contract for services, and any other area or place which is generally used, during the course of the employment, work or a contract for services, of any person. By virtue of Regulation 12, a person's home now becomes a crime scene whenever someone lights a cigarette in the privacy of his or her home while employing a domestic helper! Is this what was intended by the regulations?

While speaking in Parliament on July 25, 2013, the minister referred to the need to meet our international obligations and to enact measures to reduce the prevalence of tobacco use and exposure to tobacco smoke as the basis for the ban on smoking in public places. Public places? So how then does the minister end up enacting regulations that criminalise a person who smokes in the privacy of his own home? Regulation 12 is drafted in such a way that if a plumber comes to fix your leaking pipes and you light a cigarette in your home, you face the possibility of criminal charges if caught!

The sanctions for violation are stiff. On first offence, a person who violates the regulations faces a maximum fine of $50,000 or a maximum of three months imprisonment or both. A second offence gets you a maximum fine of $500,000 or a maximum term of six months imprisonment or both, while a third offence leaves you facing a maximum term of imprisonment of one year! For smoking a cigarette? We have created a nation of criminals in persons who are caught lighting up a 'spliff', and yet, those persons face a fine of only a few hundred dollars for a substance that is illegal to possess. We are now about to create a nation of criminals in persons caught smoking Craven "A" and Matterhorn! Possession of cigarettes is not a criminal offence yet, but one wonders if that may be where the Government is heading.

Sherene Golding Campbell is an attorney-at-law practising in the Courts of Jamaica. She is a graduate of Georgetown University Law Centre in Washington, D.C. and the Norman Manley Law School.