---

Hery Chariansyah as attorney of the Petitioners during media interview after the preliminary hearing of the judicial review of the Broadcasting Law on Monday (30/10) at the Constitutional Court Building. Photo by Humas MK/Ganie.

A number of of Muhammadiyah autonomous organizations filed a judicial review related to the regulation on cigarette advertising to the Constitutional Court (MK), Monday (30/10). They reviewed the material of Article 46 paragraph (3) letters b and c of Law No. 32/2002 on Broadcasting (Broadcasting Law) and Article 13 letters b and c of Law No. 40/1999 on Press (Press Law). The Petitioners are Pemuda Muhammadiyah (Islamic dakwah movement for youth), Ikatan Pelajar Muhammadiyah (Islamic dakwah movement for students), Nasyi’atul Aisyiyah (Islamic dakwah movement for young women), and the Indonesian Social Empowerment Foundation. In the preliminary hearing of Case Number 81/PUU-XV/2017, they were represented by attorney Hery Chariansyah. The articles being reviewed state:

Article 13 letters b and c of Press Law

Press company is prohibited to have advertisement that:

b. contains alcoholic, narcotics, psychotropic, and other addictive substances as against the statutory laws;

c. show the form of cigarette and/or its usage.

Article 46 paragraph (3) letters b and c of Broadcasting Law

(3) Commercials are not allowed to:

b. promote liquor or its equivalent and addictive substance or material;

c. Promote cigarettes by exposing the shape of the cigar;

The Petitioners felt disadvantaged by the enactment of the a quo article stipulating the provision of cigarette advertisement broadcasting. The Petitioners argue that although cigarettes are considered legal products, in formal juridical form, cigarettes are placed as non-normal consumer goods whose circulation and consumption can be equated with other products because cigarettes are subject to excise tax. So far, there are regulations related to the prohibition of advertising and promotion of legal products as a form of protection for the community. The Petitioners argue that cigarette advertisement and promotion is marketing strategy by the cigarette industry to sell morbidity and mortality targeting children and adolescents and threatening the right to life. To disguise the dangers of cigarettes, cigarette advertising displays cigarettes as a product that seems trendy, cool, macho, and so on.

"In the news in Gatra Magazine dated June 4, 2008, Dr. Widyastuti Soerojo said that cigarette advertisement was directed to attract young people such as children and adolescents, not parents," he explained at the hearing led by Constitutional Justice Maria Farida Indrati.

He also stressed that cigarettes are classified as legal products, but must be prohibited to advertise. Hery exemplifies many related legal products, which are prohibited to advertise. The prohibition of formula milk products is done in order to realize the exclusive breastfeeding program for infants. Hery continued, cigarettes should also be prohibited to be advertised because tobacco is clearly more dangerous than formula milk. On the other hand, the government also prohibits producers of hard drugs and psychotropic substances to advertise, as stipulated in Article 5 of the Regulation of the Minister of Health No. 1787 of 2010 on Advertisement and Publication of Health Services.

The Petitioners claim that based on the articles being reviewed, cigarette promotions are prohibited from demonstrating the physical form of cigarettes, so cigarettes can be advertised in broadcast and print media as long as the advertisement does not show the physical form of cigarettes. On the other hand, according to the Petitioners, cigarettes are made of tobacco that is addictive can be harmful to health. Therefore, cigarette advertisement is a threat to everyone\\\'s right to life because it can influence consumers to smoke cigarettes.

Therefore, in the petitum, the Petitioners request that the Constitutional Court grant the petition and declare that the articles being reviewed to have no binding legal force and be contradictory to the 1945 Constitution.

Justices’ Advice

In response to the petition, Constitutional Justice Maria Farida Indrati regards the petition\\\'s content verbose and complicated. She said that the background should be concise. "It also includes an explanation that also contains the legal standing and authority of the Constitutional Court. Points like this should not be put in the background,” she explained.

In addition, she asked the Petitioners to describe the constitutional damages experienced. The explanation of constitutional damage is not directly experienced by the Petitioners. "This will determine whether the petition can proceed to the plenary hearing or not," said Justice Maria.

Justice Maria also advised the Petitioners to pay attention to previous decisions related to similar petition, i.e. No. 6/PUU-VIII/2009 and 71/ PUU-XI/2013. "Try to observe them more deeply. They can be used for the perspective of the Petitioners to improve their Petition," she explained.

Meanwhile, Constitutional Justice Saldi Isra requested that the Petitioners correct their legal standing, which he judged verbose and repetitive. "There is an overlap. Therefore, please simplify the explanation so that it is not complicated to read," he advised.

In relation to the similar petitions, Justice Saldi said that a similar case may be filed back to the Constitutional Court, provided that it has different constitutional reasons. "So, find different reasons and point of reference with the previous petitions so that the petition would not become ne bis in idem,” he said. (ARS/LA/Yuniar Widiastuti)

---