Principal Petitioner Bambang Sukarno (case No. 19/PUU-VIII/2010) presented factual witness, Dr. Subagyo before the session for the judicial review of Article 113 paragraph (2) Act 36 of 2009 on Health, Tuesday (8/2/11).
Jakarta, MKOnline - The adoption of the phrase ".... tobacco, products containing tobacco,....", in Article 113 paragraph (2) of Act 36/2009 on Health, was structurally inappropriate. It was due to the paragraph categorizing the forms of addictive substances was provided in paragraph (1). Therefore it must be read as the categorization that shows the substance in solid, liquid and gas form. Said Zaenal Arifin Muchtar in his presentation as an expert from petitioner side in the Constitutional Court (The Court) Tuesday (02/08/2011). The Plenary session to hear the experts was attended by the principal petitioner Bambang Sukarno (case Number 19/PUU-VIII/2010), the principal petitioner Nurtanto Wisnu Brata (case Number 34/PUU-VIII/2010) and their counsels, AH Wakil Kamal and Iqbal Tawakkal Pasaribu.
Petitioner for case No. 34/PUU-VIII/2010 presented 5 experts, Prof. Dr. Muzdakkir, SH, MH, Ir. Purwono, MS, Dr. Revrisond Baswir, SE, Zaenal Arifin Muchtar, SH. L. LM, and Prof. Dr. Saldi Isra, SH. While Petitioner for case No. 19/PUU-VIII/2010 presented 2 Witnesses, Ala Sulistiono, and dr. Subagyo. There were also related parties and their counsels, Tulus Abadi from Indonesian Consumers Institute Foundation (YLKI), Muhammad Joni Legal Counsel of National Commission on Child Protection, Sudaryatmo Legal Counsel of Indonesia Cancer Foundation, Tubagus Haryo Karbianto, Legal Counsel of Indonesian Heart Foundation, and Ari Subagio Wibowo from Jakarta residents forum. While from the Ministry of Law and Human Rights (Government side), Heni Susila Wardoyo and Budi Sampurna.
As in the petition, the Petitioner for the case No. 19/PUU-VIII/2010 sought to review Article 113 paragraph (2) of Act 36 of 2009 on Health. While petitioner for case 34/PUU-VIII/2010 reviewed Article 113 paragraph (2) so long as the phrase ”....tobacco, products containing tobacco,....”, Article 114 and Article 199 paragraph (1) Law 36/2009 on Health.
Mudzakkir (expert from petitioner side) in his presentation said the formulation of legal norms in Article 113 paragraph (2) contains elements of ambiguity in the formulation of norms. This, he added, will be evident if it is related to the legal norm of Article 113 paragraph (1). According to him, legal norm in Article 113 paragraph (1) had already been appropriate. It included general legal norms, which may underlie further arrangements in its implementation law. "Definition of addictive substance has the general meaning, genus, does not refer to a particular object. But the formulation of Article 113 paragraph (2) explicitly mention the words 'tobacco, products containing tobacco'. Clearly this is not appropriate. Tobacco and tobacco products are not addictive substances. But tobacco contains the addictive substances, "he explained.
According to Mudzakkir, all plants contain elements of addictive substances must be mentioned in Article 113 paragraph (2). "This is a chaotic arrangement, because in one side it mention tobacco, while other plants containing addictive substances are not included in it,"
The next expert, Purwono, explains about the tobacco conversion to other crops. According to him, conversion is possible if we can find other plants that are able to grow in the area of tobacco. However, it requires efforts concerning how to change behavior and culture of the farmers. "Farmers should be trained on regarding the new plant. Then there should be market guarantee for that new commodity, "said this agronomy experts.
Fight in Cigarette Business
Meanwhile, in terms of economics and business Revrisond Baswir highlighted three aspects in business race. First, the race among national cigarette companies. "The fight occurred between a white cigarette manufacturers with tobacco cigarettes manufacturers," he explained. Second, between domestic and multinational cigarette companies. "Multinational cigarette companies wanted to dominate the market in the country. At a certain stage, the fight ended with acquisition of national manufacturer by a multinational companies, "he continued. Third, the race between cigarettes companies against pharmaceutical companies. "These Pharmaceutical companies have possibility to campaign continually not an anti-nicotine campaign, but the campaign on how to consume nicotine from the conventional way to a new one, wich is more profitable for business," said Revrisond. Next Revrisond handed a book by Wanda Hamilton, "Nicotine War" to be used as one of evidence to confirm the argument on business race in the tobacco industry.
Saldi Isra, another expert on constitutional law, explains that there is a discrimination in the articles in Health Act. "The formulation of Article 113 paragraph (2) were categorized as indirect discriminatioan," said Saldi. "The idea of noble value inside the preamble "Considering" part, had been marred by the formulation of Article 113 paragraph (2)," he continued.
According Saldi, the message that the Health Act want to deliver, aimed to maintain human rights, especially to get a good environment and healthy living. However, human rights protection that was desired by the Act, especially in Article 113 paragraph (2), injured other human rights as well. "At the very least, the right to live and sustain life and the right to not receive discriminative treatment," said Saldi. (Nur Rosihin Ana/mh/Nin@free)
Thursday, February 10, 2011 | 11:00 WIB 217