Lawscape
“No Smoking Please!”
Md. Ishtiaq Ahmed
Smoking is one of the potential bad habits that are destroying our society. I write the word “potential” due to its productiveness in light of terrible impact on starting different other horrific habits. It not only opens the door to different other unsocial and illegal activities but also leads our young generation to violate our social norms and customs.
The use of tobacco is increasing amongst the young people in Bangladesh. According to a survey, 2% of young people aged between 13-15 are currently cigarette smokers, among them 3% are boys and the rest 1% are girls; further 6% of young aged from 13-15, currently use tobacco products other than cigarettes, among them 8% boys and 4% girls [Global Youth Tobacco Survey (GYTS), 2007]. This trend of smoking is in dangerous level among the adult above 15 years. According to World Health Organization 2009 survey, approximately 43% of all adults aged above 15 use some form of tobacco [Global Adult Tobacco Survey (GATS)].
Now, what should be done to control the use of tobacco? It would be wrong to say that the framing of strict laws would be the solution, since we already have sufficient laws regarding this, except few flaws on them. We have Railways Act, 1890 that prohibits any passenger from smoking in any compartment of a train. Section 110 of the said Act prohibits any passenger from smoking in any compartment of a train other than a compartment specifically designated for smoking. The same provision also establishes the penalties for those who violate this provision. Then we have The Juvenile Smoking Act, 1919. This Act prohibits a person from knowingly selling or giving tobacco products to minors under 16 years of age. The Act also sets forth penalties, enforcement powers, requirements to institute judicial proceedings, and exclusions. We just need to implement these provisions of law with proper amendment. In our country smoking is completely prohibited in certain public places and workplaces such as healthcare and educational facilities and on certain forms of public transport.
The Smoking and Using of Tobacco Products (Control) Act, 2005 (Act No. XI of 2005) is the principal law governing tobacco control in Bangladesh. The Act is comprehensive and bans smoking in public places making it a punishable offence, according to section 4 of the said Act. The Smoking and Using of Tobacco Products (Control) Rules, 2006 provide further guidance on these areas. The current law, however, permits the establishment of smoking areas or spaces in public places and workplaces. Furthermore, there is no prohibition on smoking in restaurants and hotels, and that is where the problem lies.
It is unfortunate to articulate that the said Rules indirectly permits smoking and even in the public place. Rule 4 of the Rules of 2006 deals with smoking zone. Sub Rule 3 and 4 of Rules 4 permit smoking even in public places. Here it says that where it is a public place or a public transport, one room if it is a building or if it is a train, steamer, launch or a ferry a separate place or room can be established for the smoker as smoking zone.
This totally contravenes to the guideline of Framework Convention on Tobacco Control (FCTC) to which Bangladesh is a state party. The FCTC is a legally binding treaty that provides a broad framework of obligations and rights to Parties to implement various tobacco control measures. According to FCTC Article 3, the objective of the FCTC is "to protect present and future generations from the devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke by providing a framework for tobacco control measures to be implemented by the Parties at the national, regional and international levels to reduce continually and substantially the prevalence of tobacco use and exposure to tobacco smoke". Parties to the FCTC (such as, Bangladesh) have a legal responsibility to perform their treaty obligations in good faith, as per Article 26 of the Vienna Convention on the Law of Treaties. According to FCTC Article 8 guideline on Adaptation and Implementation of Legislation requires complete smoke free environments in all parts of all indoor public places, indoor workplaces, on all means of public transport and in outdoor or quasi-outdoor spaces where a hazard exists due to tobacco smoke exposure.
Now what does the term 'indoor workplace' actually mean? It is clear from the word itself that the indoor work place means a place where the worker works in an indoor situation. Hence all workers, which include those workers laboring in the private houses (the home maker). Therefore, upon ratifying FCTC, Bangladesh can not contravene the provisions of this convention.
Is banning of smoking in public place is only an international treaty obligation for Bangladesh? Isn't it a violation of constitutional guaranteed right to life? To answer the questions, let us consider the consequences and impact of smoking in public places.
The situation is popularly known as “secondhand smoking”. Secondhand smoking occurs when a smoker smoke around a non-smoker. Secondhand smoke is also known as “environmental tobacco smoke” (ETS) or passive smoke. It is a mixture of 2 forms of smoke that comes from burning tobacco: side-stream smoke (smoke that comes from the end of a lighted cigarette, pipe, or cigar) and mainstream smoke (smoke that is exhaled by a smoker). Even though we think of these as the same, they aren't. The side-stream smoke has higher concentrations of cancer-causing agents (carcinogens) than the mainstream smoke. It contains smaller particles than mainstream smoke, which make their way into the body's cells more easily.
According to the US Environmental Protection Agency (EPA), the US National Toxicology Program, and the International Agency for Research on Cancer (IARC), a branch of the World Health Organization, secondhand smoke is classified as a "known human carcinogen" (cancer-causing agent) that leads the nonsmoker to death. Hence, secondhand smoking clearly violates citizens' right to life as guaranteed under the constitution. Bangladesh is therefore has constitutional obligation to ensure smoking free public places.
The writer is a researcher of LawDev (Bangladesh).
