Ceylon Tobacco Company Ltd., et. al. v. Hon.NimalSiripala de Silva et. al.

S.C.(SD) Application Nos.1 to 6/2006
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Country: Sri Lanka
Region:
Year: 2006
Court: Supreme Court of Sri Lanka
Tags: Controlled substances, Right to Health, Tobacco

The Petitioners, the tobacco companies in Sri Lanka, challenged clause 40 of the National Authority on Tobacco and Alcohol Bill (“Bill”), which seeks to prohibit smoking in closed public places. It is important to mention here that a petition was earlier filed, which challenged the Bill as whole but the Court dismissed the earlier petition on the grounds that it doesn’t violate the provisions of the Constitution which the petitioners were seeking remedy under namely, Article 14(1)(g) and Article 12(1) (Right to Free Trade and Profession and the Right to Equality). In the present petition, the petitioners only challenged clause 40 of the Bill, which wasn’t there in the previous Bill but was incorporated in the Bill based on the observations made in the previous case. In the previous case, the Court agreed that stopping passive smoking is aligned with the objective of the Bill and it would not contravene any provision of the Constitution.
Many of the grounds submitted by the petitioners were not accepted because the Minster had moved an amendment in parliament to replace clause 40 in the present form and substitute it with another clause which would incorporate some of the objections raised by the petitioners.
The petitioners were happy to the reformulated clause as it removed the discrepancy with the Constitution s alleged by the, but they further suggested some amendments. It was submitted by the government that clause 49 was primarily based on the World Health Organization (“WHO”) Framework Convention on Tobacco Control (“FCTC”), to which Sri Lanka was a signatory. With this backdrop the Court looked at the amendments suggested by the petitioners, namely :
• that the prohibition in clause 40(1) be restricted to only the people mentioned in clause 40(2)
• that the mandate for exclusive areas of smoking based on the capacity of the establishment, given under clause 40(2)(a) and (b), be deleted.
• that a provision is included for setting aside exclusive enclosed spaces/ areas for smoking.
• that the definition of “enclosed public place” in clause 40(5) be replaced as being the definition of any “public place”.
The various objections raised by the Petitioners, were supported by the intervenient Petitioners on the ground that the amendment was ; (1) inconsistent with the proclaimed Government policy of there being a “stop to intoxicants (2) that the purpose of the Bill in prohibiting the sale of liquor to persons below the age of 21 and the advertisement of alcohol products, will be defeated; and (3) give an unduly favorable treatment to those in the brewery industry and trade by exempting them from the operation of the restrictions as contained in the Bill.
These submissions were looked by Court who finally ordered that this clause should be amended to include the previous definition that had been considered by this Court and found to be consistent with the Constitution and held that the Bill is not inconsistent with the provisions of the Constitution. The Supreme Court of Sri Lanka determined that the Bill was not inconsistent with the Constitution subject to the amendment of clause 40 (5) and the amendment of the definition of “alcohol product” appearing in clause 46 to be the same as in clause 42 of the previous Bill.

The Supreme Court held that Clause 40 of the Bill was formulated on the basis of the FCTC, which fell within the scope of Article 15(7) of the Constitution, which imposes a restriction on the exercise of the fundamental rights by law for the protection of public health. Hence Clause 40 was not inconsistent with Article 12 and 14 of the Constitution.

As already stated Sri Lanka was a party to the WHO FCTC, a convention committed to protecting the right of all people’s health. Clause 40 of the Bill was drafted based on this convention, especially based on Article 8(2) which required each party to adopt effective legislative measures for the protection from exposure to tobacco smoke inappropriate public places. The Supreme Court held that Clause 40 of the Bill which prohibited smoking in enclosed public places came well within the ambit of Article 15(7)because this clause was intended to reduce passive smoking so as to protect public health. There was no standing of challenging the incompliance with Article 12 and 14 of the Constitution.

With regard to the amendments suggested by the Petitioners, the Court rejected all but one amendment. The Court agreed to modify the definition of “enclosed public place” in clause 40(5). The first part of the sub-clause would define ‘public place” and the second part would define “enclosed public place” to include the places specified in the definition.

With regard to the allegation of the intervenient Petitioner, the Court held that the amended definition of “alcohol product” was inconsistent with Article 12(1) of the Constitution and therefore, clause 46 must be amended to include the definition which was given in the previous Bill and which had been upheld as being constitution by the Court.

“Exposure to tobacco smoke as envisaged in the WHO (FCTC) or “passive smoking” in common parlance which would necessarily result from smoking in public places is undoubtedly harmful to public health and law could be validly enacted to prevent such exposure to tobacco smoke in enclosed public places.” Pg.5

“The rationale for permitting exclusive smoking areas based on the capacity of the establishment is to prevent a possible avoidance of liability. It is clear that only large establishments could afford in economic terms the provision of sufficiently ventilated places exclusively for smoking. In view of the harm to the smoker by smoking in such places, the exception should be limited in its application. The restriction adopted in Indian legislation is, in our view, reasonable.” Pg.6

“In our view the first part of the definition that an enclosed public place means any place to which public has access, whether as a right or otherwise of a permanent or semi-permanent nature, includes a degree of artificiality. A place to which public has access would indeed be a public place. But, the law cannot go further and define such place as being “an enclosed public place”.Pg.6

“The entire purpose of this clause was to protect the younger generation from early use and addiction to tobacco and alcohol products. This amendment was specifically agreed upon on the basis that brewery products would come within the ambit of the prohibition and that there would be no sale of brewery products to persons below the age of 21 years and there would be no advertisements of those products.” Pg.8

Clause 40 of the National Authority on Tobacco and Alcohol Bill: (1) “No person shall smoke or allow any person to smoke any tobacco product within any enclosed public place. (2) Any person who is the owner, occupier, proprietor, manager, trustee or person in charge of any enclosed public place shall ensure that no person smokes any tobacco product within any such enclosed public place; Provided, however- (a) any hotel, guest house or lodge having thirty rooms or more; (b) any restaurant or club having the capacity to accommodate the minimum of thirty persons; or (c) an airport, may, notwithstanding the provisions of subsection (1), have within its premises an enclosed space or enclosed area as the case may be set aside exclusively for smoking. Such area shall be provided with adequate ventilation and conform to the prescribed air quality standards. (3) ” Article 12(1) of the Constitution: “All persons are equal before the law and are entitled to the equal protection of the law.” Article 14(1)(g) of the Constitution: “Every citizen is entitled to the freedom to engage by himself or in association with others in any lawful occupation, profession, trade, business or enterprise.” Article 15(7) of the Constitution: “The exercise and operation of all the fundamental rights declared and recognized by Articles 12, 13(1) 13(2) and 14 shall be subject to such restrictions as may be prescribed by law in the interests of national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just. Requirements of the general welfare of a democratic society. For the purposes of this paragraph “law” includes regulations made under the law for the time being relating to public security.” - Article 8(protection from exposure to tobacco smoke) of the Framework Convention on Tobacco Control: (1) “Parties recognize that scientific evidence has unequivocally established that exposure to tobacco smoke causes death, disease, and disability. (2) Each Party shall adopt and implement in areas of existing national jurisdiction as determined by national law and actively promote at other jurisdictional levels the adoption and implementation of effective legislative, executive, administrative and/or other measures, providing for protection from exposure to tobacco smoke in indoor workplaces, public transport, indoor public places and, as appropriate, other public places.”

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