The cigarette ban: good move, bad governance

Rosalea Hamilton, Contributor

HEALTH MINISTER Dr Fenton Ferguson's pro-health move to ban smoking in public spaces across Jamaica should be applauded as a move in the right direction to protect the health and well-being of Jamaicans. Jamaica can no longer afford to ignore the annual cost of US$170 million to treat smoking-related health problems such as diabetes, high blood pressure and cancer. Further, Jamaica ratified the World Health Organization Framework Convention on Tobacco Control (WHO FCTC) in 2005 and, in so doing, indicated a commitment to give priority to protect public health and support the objective:

To protect present and future generations from the devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke [Art.3].

The WHO FCTC was developed in response to the "globalisation of the tobacco epidemic" facilitated by cross-border transactions, including trade liberalisation, direct foreign investment as well as the international movement of contraband and counterfeit cigarettes. In seeking to curb this global epidemic, Jamaica joins about 45 countries in the world in the ban on smoking in public spaces.

But the method used to impose the ban is another example of bad governance. The unfettered use of ministerial powers in the Public Health Act (PHA) to develop a new regulatory framework - the Public Health (Tobacco Control) Regulations 2013 - and in the Health and Allied Professions and Services Act to increase penalties for breaches, without discussion in Parliament and with the people of Jamaica, is inconsistent with the spirit of participatory democracy and good governance. It is inconsistent with Article 4(7) of the WHO FCTC which recognises the essential role of civil society participation in achieving the objective of the Convention and its protocols. It also contradicts the Government's own procedures for policmaking outlined in the 2005 Consultation Code of Practice for the Public Sector which states that:

The primary goal of consultation is to encourage and promote participation and the involvement in the policymaking process of those affected by the policy - the citizens of Jamaica.

It is unfortunate that such an important pro-health policy that has the support of most Jamaicans was developed in the absence of adequate dialogue that can improve the effectiveness of the design and implementation of policy. The absence of adequate dialogue begs several questions:

1. Did the Government consider the negative impact of the policy on micro and small businesses?

2. Will the Government provide technical and financial assistance or actively promote "economically viable alternatives" for these micro and small business as well as workers in the tobacco industry as provided for in Art. 4(6) and Art. 17 of the WHO FCTC?

3. Will the policy be complemented by strengthened initiatives to curb the illicit trade in cigarettes?

4. What are the implications of a reduction in the sale of cigarettes for a revenue shortfall in the context of our IMF agreement? It should be noted that Carreras is the third-largest tax-paying entity contributing about J$11 billion in taxes last year. Will Jamaicans face more taxes to fill the expected gap?

Several pieces of legislation empower ministers to act in a manner that contradicts the modern expression of good governance. For example, s.115(1) of our Constitution empowers the minister of finance to prepare annual estimates of revenue and expenditure and lay them before the House of Representatives without any requirement to consult with citizens and their representatives BEFORE the estimates are laid. Viewed as an unacceptable expression of democracy, calls for a participatory budgeting process, used by several countries across the world, that involves dialogue with citizens and their representatives have grown louder over the past few years.

OUR WEAKNESSES

Jamaicans should consider the significance of a former, senior Cabinet minister and sitting member of the Senate on the side of the current administration, K.D. Knight, making public statements about mounting protests against the new law. It dramatically highlights the weakness our parliamentary process and the absence of an institutionalised participatory process where the voice of the people can be directly heard on such important matters that affect their lives. The view of Attorney General Patrick Atkinson that the matter was fully debated in Cabinet and therefore a "debate in Parliament is a non-issue" is alarming. The attorney general is essential saying that the Cabinet can do as it pleases. This view seems to misconstrue the real, democratic meaning of s.69(2) of the Constitution:

The Cabinet shall be the principal instrument of policy and shall be charged with the general direction and control of the Government of Jamaica and shall be collectively responsible therefore to Parliament (my emphasis).

The constitutional requirement of responsibility to Parliament attempts to limit Cabinet dictatorship and is weakened when Parliamentarians, using their majority, simply rubberstamp Cabinet decisions.

This most recent expression of bad governance provides an opportunity for a national discussion about the powers of our Ministers and the Cabinet and the "power of the people" in our modern, evolving democracy. It is an opportunity for a national discussion about the real meaning of the People's National Party 16th Manifesto commitment to full people empowerment:

16. Fashion new consultative mechanisms, within the Westminster System of Parliamentary democracy, for the meaningful inclusion of critical stakeholders, including civil society organisation, in the constantly changing governance landscape.

It is an opportunity for us to rethink the role of the Senate as a non-partisan House, comprising various sectorial interests that can effectively constrain Cabinet and compel ministers to answer questions and provide relevant information in the people's interest. This will avoid turning senators into protestors.

Minister Ferguson should be commended for taking this bold step in creating a healthier society for Jamaicans and for his apology for the untidy roll-out of this important piece of legislation. He has stated publicly that it is "work in progress." Much more work is needed, however, to deepen our democracy and improve participatory processes that strengthen the voice of the people, curtain Executive excesses and truly empower the people of Jamaica.

Rosalea Hamilton, PhD is VP, Community Service & Development and Scotiabank Chair Professor, Entrepreneurship & Development at the University of Technology. Email: rosaleahamilton@gmail.com or columns@gleanerjm.com