Regulation of smoking has always been an interesting area of consideration when it comes to freedom, with both those who are in favour of regulation and those who are against it making arguments based in the theory of individual liberty. Those who favour regulation assert that non-smokers’ right to health is being violated and those against assert that smokers’ freedom of choice is being violated.
Whatever the case, any regulation should adhere to the precepts of the rule of law absolutely, and adhere as far as it can to the demands of economic reality.
In South Africa, I have had much experience with this. Our constitution uniquely recognises the rule of law explicitly as a founding provision, meaning all the jurisprudential principles of the concept are part of our constitutional law. Government, however, has often opted to ignore these sometimes-debatable principles, refusing to conduct or publicise impact assessments or to consult the public on various policy choices.
The Caucasian state of Georgia is considering adopting a stringent new anti-smoking law which has recently begun being fast-tracked through Parliament, and it seems, unfortunately, that the rule of law is not being adhered to.
According to The Financial, if the proposed law is adopted, tobacco companies “might not have the right to advertise anymore; tobacco might not be allowed to be sold in many places; smokers won’t be able to smoke in public places; and the industry will generally be isolated. Tobacco companies might not have the right to use their logo and brand identity anymore…”
This proposal for plain packaging means that cigarette packages will have the same colour, shape, and size as determined by government, and that trademarks and logos will be replaced by the simple and unattractive print name of the company.
The Georgian constitution recognises the rule of law in its preamble, saying it is the “firm will” of the citizens of Georgia to establish a state based on both economic freedom and the rule of law. This firm commitment to these two values – economic freedom and the rule of law – bind the Georgian government to consider the tenets of the rule of law as well as the principles of economics.
According to article 18 of the Constitution, individual liberty is inviolable; article 21 says violating the property rights of Georgians is impermissible; and article 30 binds the state to develop “free entrepreneurial activity and competition.”
A principle of constitutional interpretation is that that no part of a constitutional text may be considered in isolation. Therefore, provisions like article 37 which guarantee Georgians’ right to a healthy environment cannot be separated from the right of individuals to their property, liberty, and free entrepreneurial activity. Indeed, article 44 clearly states that the rights some may not violate the rights and freedoms of others.
The rule of law requires that law must be rational. In other words, the law cannot be arbitrary and must be based on evidence gained from extensive research and foreign experiences.
In Georgia, it appears that this evidentiary burden has been neglected.
The proposed law is being considered in Parliament without an impact assessment being done or waiting to see the results from other jurisdictions with similar regulations. The European Union’s stringent Tobacco Products Directive comes to mind, as does experience Australia, where it has not yet been shown that plain packaging has the desired effects of reducing smoking. France adopted plain packaging earlier this year, and it would be wise for Georgia to wait and see what happens there.
Impact assessments, as outlined in the Good Law Project’s Principles of Good Law, are necessary prerequisites for good law. If they are not conducted, the public has nothing to inform their engagement with government on the proposed law, meaning the principle of public participation is being forsaken.
Public participation is democracy in action and legitimises public policies during the periods between elections. Without an impact assessment, the public cannot sincerely endorse the proposed law, and without public participation, it is the rule of man, not the rule of law, which permeates the policy.
Whatever your opinion on smoking, it is crucial that anti-smoking laws not be irrational. Moreover, the anti-smoking law itself should not be bad law based merely on the whims of some politicians.
Martin van Staden is Legal Researcher at the Free Market Foundation of South Africa and the regional Academic Programs Director of Students For Liberty. He is a Young Voices Advocate. Find out more at www.martinvanstaden.com.
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