TOBACCO CONTROL LAWS

Judicial Review of Law No. 36 of 2009, Ruling in Case No. 57

Petitioners, Indonesian smokers, challenged the constitutionality of Indonesia’s Health law that sought to restrict smoking in work and public places.  The law sought to create no smoking and designated smoking areas to combat the problem of second-hand smoke.  The petitioners specifically challenged the words “can” and “may” in relation to the establishment of designated smoking areas in Article 115 of the law.  The court granted the petitioners request and held that parts of Article 115 violated the constitution of Indonesia.  The court held these parts would no longer have legal force.

Nomor 57/PUU-IX/2011

  • Indonesia
  • Apr 9, 2012
  • Indonesia Constitutional Court
View Case History Download Document

Parties

Plaintiff

  • Irwan Sofyan
  • Abhisam Demosa Makahekum
  • Enryo Oktavian

Defendant Republic of Indonesia

Legislation Cited

Law No. 36 of 2009 Concerning Health

Related Documents

None

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.

Tobacco Control Topics

Smoke Free Measures
Measures to reduce or eliminate exposure to tobacco smoke. (See FCTC Art. 8)

Substantive Issues

Right to Health
A violation of the right to the enjoyment of the highest attainable standard of health. Public health advocates may claim the public’s right to health is violated by weak tobacco control measures, industry tactics, or an organization’s or smokers’ actions.
Right to Equal Protection
A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
Right to Procedural Due Process
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
Right to a Healthy and Safe Environment
A violation of the right to live in a safe and healthy environment.
Right to Work
A violation of the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.
"Right to Smoke"
The tobacco companies and some individual plaintiffs argue that there is a right to smoke.
Tobacco Control Law Violation
A claim of a violation of a tobacco control law or statute.
Legal Product
Tobacco is a legal product and the tobacco industry is a legal industry.
Undue Burden
A discussion on whether the regulations impose an undue burden on the tobacco industry. This argument may involve the costs of implementing regulatory measures.
Cultural Norms
A discussion on cultural attitudes around tobacco, specifically that tobacco use is an accepted part of the culture.

Type of Tobacco Product

None

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