LETTER: Tobacco bill out of sync with constitution

The Free Market Foundation (FMF) has warned the portfolio committee on health in the National Assembly that the Tobacco Products and Electronic Delivery Systems Control Bill represents a kind of paternalism that is out of sync with SA’s constitutional values. 

In a submission to the committee, FMF head of policy Martin van Staden points to various unconstitutional provisions throughout the bill. These include the bill’s assignment of an open-ended and unlimited discretion to the minister of health to ban smoking and/or vaping anywhere in SA for no reason other than the minister considering it “appropriate”. 

“What a politician subjectively regards as ‘appropriate’ or ‘inappropriate’ should be no concern of ordinary South Africans and businesses. The rule of law is meant to protect us from such arbitrary whims,” adds Van Staden. 

The bill additionally proposes to prohibit people smoking in their own houses if they work from home, as there will be a ban on smoking in a private dwelling if that dwelling is used as a “workplace”. This is “a clear manifestation of an undemocratic, totalitarian impulse on behalf of the [bill’s] drafters” and falls foul of the rights to human dignity and privacy in the constitution. This same provision would cause domestic workers — even when they are themselves smokers, or do not mind their employers smoking — to lose work across SA.

Employers will legally have no ability to smoke in their own homes anymore unless they terminate the employ of anyone, themselves included, who works there. This comes right as SweepSouth’s sixth annual survey shows that the past year has already seen “masses of job losses” among domestics. The department of health is, furthermore, attempting to explicitly subvert democracy by prohibiting lobbying by or on behalf of tobacco and vaping companies or associations.

Lobbying, despite the bad reputation it enjoys, is a legitimate democratic practice. “It is perverse to allow government to interfere in the affairs of private companies and groups, but then not allow those companies or groups to speak their mind in response” says Van Staden, adding, “No similar provision exists for lobbying by or on behalf of so-called health associations”.

When this provision is viewed alongside the new General Intelligence Laws Amendment Bill, which seeks to subject all non-governmental organisations to “vetting” by security services, it is clear that the government has embarked on an initiative to silence or constrain its critics among civil society. Aside from these clearly unconstitutional provisions, the bill as a whole represents a misconception of governmental authority in a society premised on constitutionalism.

The FMF submission explains: “In a constitutional democratic dispensation government is not conceived of as a parental figure that must ‘care for’ and ‘raise’ its perpetual-minor subjects. Instead, government is an agent service provider, and legal subjects are its principal. As such, what legal subjects voluntarily decide to consume is no business of government. It is a fundamental liberty of the individual to be allowed to decide for themselves what lifestyle they wish to live, which includes whether they will smoke or vape.” 

The FMF accordingly advises the committee to withdraw the bill and respect the freedom of consumers to make their own decisions.

Free Market Foundation
Via email

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