Indonesia - Constitutional Court by close vote rules that tobacco ads can continue..

Cigarette Advertising:
September 18, 2009 - A split Constitutional Court [similar to the U.S. Supreme Court] on Thursday, September 10th quashed [to set aside, especially by judicial action] a petition to ban cigarette advertising on television, rejecting appeals that ads could encourage children to start smoking. (The image to the right is the Constitution Court (Mahkamah Konstitusi) Building, click to enlarge.)

In a five-four decision, the court said the petition filed by two child protection groups and two children was legally baseless.

“Cigarettes are a legal commodity,” Chief Justice Mahfud MD said, reading the court’s ruling. “For that reason, cigarette promotion should also be seen as a legal action.”

The National Commission for Child Protection (Komnas Anak) and the West Java-based Children’s Protection Council had demanded that the court void an article in the 2002 Broadcasting Law that states that commercial ads may be aired by electronic media as long as they didn’t show cigarettes or people smoking.

Judges Maruarar Siahaan, Muhammad Alim, Harjono and Achmad Sodiki voted to annul the article, which would have meant all televised cigarette ads would be banned.

Maruarar said the country’s cigarette industry had been known to harm the right of children to a healthy life. Alim said that cigarettes could cause health problems and shorten life expectancy, while Harjono said the state had an obligation to promote the rights of children.

According to the University of Indonesia’s Demographics Institute, in 2008 some 68 million Indonesians were active smokers and 427,948 people died nationwide (population: 237,512,352 (July 2008 est.))from smoking-related illnesses, accounting for 22.5 percent of deaths in the country last year.

“Despite the court having to face both the economic rights of cigarette producers and constitutional morality, the plaintiffs’ demands should be approved,” Judge Harjono said.

However, the other five judges ruled that advertising was a constitutional right for everyone, including the cigarette industry.

Judge Arsyad Sanusi said the Constitutional Court would be acting unfairly if it only focused on the negative impacts of cigarettes, while ignoring the views of cigarette producers, tobacco farmers, the advertising industry and other businesses related to cigarette production.

“In 2008, 400,000 people worked directly in the cigarette industry,” he said. “Meanwhile, there are 2.4 million tobacco farmers, 1.5 million clove farmers, 4.8 million [cigarette] sellers and 1 million workers in related industries such as printing and transportation.”

Government revenue from cigarette taxes was Rp 57 trillion ($5.75 billion) in 2008, while the tobacco industry spent Rp 1.4 trillion on advertising.

Judge Abdul Mukthie Fadjar said banning cigarette ads would be ineffective as well as unconstitutional.

Muhammad Joni, a lawyer for the plaintiffs, said although he respected the court’s decision, he would mount another challenge to the Broadcasting Law. “We will file another judicial review on other articles with the same aim — to ban cigarette ads,” he said. He said judges should compare cigarettes and alcoholic beverages. Neither of them are seen as illegal. However, ads for alcoholic drinks are banned, while cigarette ads are allowed. There is a strong connection between cigarette ads and the widespread use of cigarettes.”

Reference: Cigarette Ads Upheld by Indonesia's Constitutional Court, Camelia Pasandaran, Jakarta Globe, 9/11/2009.

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