Ignorance is not bliss

Business establishments and smokers alike are beginning to feel the impact of President Duterte’s latest campaign against smoking.

Restaurant and bar owners are reporting declines in sales as smoking patrons shy away from venues where they cannot smoke. Mall operators, meanwhile, have been getting complaints from disgruntled mall-goers about the absence of designated smoking areas (DSA).

Even foreign visitors have noted that Executive Order 26, which prescribes new rules on indoor public smoking, is far stricter than those in countries with advanced tobacco control regulations like Hong Kong, Australia and the United Kingdom. Non-smokers have the right to be in places where they need to go without being exposed to second-hand smoke. But smokers who have made an informed decision to use cigarettes equally have a right to enjoy a legal product of their choice in public places.

Republic Act 9211, passed in 2003, is the law that regulates the packaging, use, sale, distribution and advertisement of tobacco products. It prohibited smoking in public places such as schools, elevators and stairwells, inside public and private hospitals, public conveyances and facilities such as airports and restaurants except for separate smoking areas, among others.

The law required that in all enclosed places that are open to the general public as well as private workplaces, the owner or operator shall provide for smoking and non-Trade smoking areas. The designated smoking area may be an open space or separate area with proper ventilation.

EO 26, meanwhile, provides for the establishment of smoke-free environments in public and enclosed places, which is pretty much what RA 9211 requires. The EO prohibited smoking within enclosed public places and public conveyances, required designated smoking areas, and stated that violations of the order are punishable under RA 9211 and other applicable laws.

What the EO did was to simply reinforce the provisions of RA 9211. The President cannot legislate nor amend and existing law. In fact, some argue that the executive order contains provisions that are stricter than what the law provides, which is unconstitutional, because only Congress can pass laws. Even local ordinances cannot go beyond what RA 9211 requires. The executive branch is only tasked to implement the law. It cannot pass a law nor amend a law in the guise of an executive issuance, like an EO or implementing rules.

I do not know why some misguided quarters keep referring to EO 26 as an absolute nationwide smoking ban. All it does is regulate smoking in indoor or enclosed places. Not even RA 9211 provides for a smoking ban.

Smoking is still allowed in the Philippines. But if you do smoke in “enclosed public places and public conveyances,” you can only do so in DSAs which can be in an open space or a separate area with proper ventilation.

I see no problem with both EO 26 and RA 9211. Both the intent and language are very clear. The problem is some over-zealous anti-smoking advocates, local officials and enforcers, intentionally or not, interpret this as an absolute smoking ban. No such thing.

So what is clear is that smoking is not allowed only in enclosed public places and public conveyances. This means that smoking in the streets and sidewalks is allowed because it is not enclosed. Over enthusiastic enforcers arrest or harass smokers while smoking outside because they probably have not read RA 9211 and EO 26, or they were just following instructions from their bosses who likewise are ignorant. Smoking in the fairways on public golf courses is not prohibited because these are not enclosed areas.

Even local ordinances that have implemented an absolute smoking ban are treading on very thin ice. These ordinances have no legal basis. Local governments cannot use police power or the power of the state to come up with regulations to protect public health because the state has already issued its policy in RA 9211, and EO 26, which again only regulates, but does not ban smoking.

Another confusing provision of EO 26 requires that DSAs shall not be located in or within 10 meters from entrances, exits, or any place where people pass or congregate. What if the 10 meters is already in the street or is already the boundary of another building?

And how about restaurants located in a mall, like the rows of establishment outside the Power Plant Mall? Is each restaurant required to put up its own DSA?

For both public and private establishments, can they legally provide for an absolute smoking ban and, therefore, no longer put up a DSA? Smokers can argue that they too have rights and both the law and the EO do not ban smoking absolutely.

So my advice to smokers? Read the law and jot down or memorize the pertinent legal provision. If they know that they are within their rights (the rule on statutory construction is that what is not included is excluded; so if RA 9211 does not say that it is an area where smoking is prohibited, like open public spaces, then smoking there is allowed), then they can insist and not fear being arrested or being thrown out.

Unnecessary intrusion

No less than President Duterte, during his second state-of-the-nation address, directed both the Department of Finance (DOF) and the Bureau of Internal Revenue (BIR) to accept Mighty Corporation’s (Mighty) tax settlement offer of P25 billion to avoid a protracted legal battle with the firm that could take years to resolve. In fact, there is no assurance the courts will rule in favor of government in its suit against Mighty for alleged use of fake tax stamps. And that is why the P25-billion offer is a sure-fire win for government.

Unfortunately, the Philippine Competitive Commission (PCC) now wants to review the acquisition by Japan Tobacco International (JTI) of Mighty for P45 billion, of which part will be used to settle Mighty’s alleged tax liabilities. The review can take 120 days if there are issues, or even longer if PCC is hailed to court.

Camarines Sur Rep. LRay Villafuerte has warned PCC and its chairman Arsenio Balican not to delay the JTI-Mighty deal because he knows government needs the money badly to finance the budget deficit.

PCC is currently reviewing the proposed acquisition by Alipay Singapore Holdings Pte. Ltd. of shares in Globe Fintech Innovations Inc. Alipay operates a third-party payment service platform, while Globe Fintech provides solutions such as micropayment and tech-based lending services to the unbanked, marginalized sectors, as well as small, micro, and medium enterprises. The Alipay deal was announced last February. It has been six months since, and Phase II of PCC’s review has just began.

In addition, the PCC wants to review the purchase by PLDT and Globe of the telecom assets of San Miguel Corp. The purchase was done May last year and the review hasn’t even commenced after the buyers went to court, saying the deal was not subject to review being an exempt transaction. The Court of Appeals has stopped the PCC from conducting the review, but the government body refused to comply and instead elevated the CA ruling to the Supreme Court.

The Alipay deal aims to accelerate financial inclusion and upgrade payment services in the Philippines, which is in line with the advocacy of the Bangko Sentral ng Pilipinas. The PLDT-Globe-SMC deal will help utilize dormant valuable radio frequencies and achieve the President’s bid for faster and cheaper broadband Internet access. Meanwhile, the benefits to government of the JTI-Mighty deal are obvious. P25 billion is P25 billion by any measure.

If the PCC really wants to serve public interest above all, then it must realize why it was created in the first place. But it is definitely not to stifle free enterprise and make it difficult for Philippine business to thrive and operate.