กรุงเทพฯ--1 ก.ค.--124 Communications Consulting
Assoc. Prof. Sutham Yunaitham, research project leader, Academy of Public Enterprise Policy, Business and Regulation (APaR) and Dean of Faculty of Law, University of the Thai Chamber of Commerce, announced the findings of a research project under the name "The Study Project on Legal Aspects of the draft Tobacco Products Control Act". This research points out flaws found in the draft of the Tobacco Products Control Act B.E. […] or "TPCA", which relate to legal aspects and have a tendency to cause impacts in terms of commerce and trade, as well as liberty and rights under the Constitution, especially the laws protecting private sectors in operating their businesses. APaR suggests the Council of State and the National Assembly to consider reviewing and revising the draft of TPCA in order to effectively solve the problems as stated in the actual objective of the draft of TPCA and create the right balance between protecting people's health and recognizing business operators' rights.
The research study, which began since March 2015, suggests that the Council of State and the National Assembly review various measures limiting stakeholders' liberty and rights under the Constitution by taking 'the principle of proportionality' from the administrative law and the Constitution into account to create fairness and effective law enforcement. Many terms used in the draft should also be reconsidered as they still lack clarity or are too vague in regards to the offense of criminal charges. Apart from this, there is an issue of broad over-powering ministers in announcing additional sub-laws under various Sections, which may cause unnecessary problems related to rights and freedom of tobacco manufacturers and sellers in the future.
Assoc. Prof. Sutham Yunaitham, Dean of Faculty of Law, University of the Thai Chamber of Commerce, said "The results of the analysis from this research show that the content of the draft TPCA is paradoxical and contrary to the principle of law, particularly the issue of liberty and rights, according to the administrative law, and the inconsistency with the proportionality principle. The draft TPCA excessively limits a number of rights and violates several kinds of freedom. For instance, Section 37 – the possibility of plain packaging enforcement, a measure that goes beyond necessity and restrains the rights of trademark owners. This also affects the intellectual property rights that are protected under the domestic and international laws thatThailand is a party to, such as the TRIPS Agreement. Currently, the Ministry of Public Health regulates 85 percent (front and back) and 60 percent (sides) of graphic health warning texts and images on all cigarette packages. Therefore, manufacturers and importers of tobacco products have limited display space for their logos or trademarks on the pack to indicate the source of the product and the information of the producer. Such information does not have the effect of inducing consumption of the product."
The draft TPCA also contradicts the principles of the Framework Convention on Tobacco Control (FCTC), which should be based on the principle of laws of the member countries. The Thai Constitution is the supreme national law and therefore, the drafting of laws must follow the Constitution. However, this draft stipulates measures beyond that laid out by the FCTC and relies on the non-binding guidelines as a basis for the draft, which in turn, violates the liberty and rights under the Constitution. For example, Section 40 – restrictions on communications with public sectors. Given that this law involves criminal offenses, the use of broadly defined terms such as "marketing communications" and "those who associate with tobacco products" are concerning as they could create issues in practice.
"The good practice of drafting a tobacco control law is to consider the FCTC only as necessary in order to prevent youth from accessing tobacco products, reduce smoking rate, protect the health of consumers, as well as create a balance between legal measures and restriction of liberty under the Constitution. Lawful business operators equally deserve justice, fairness, and protection from the laws. All of these should be considered to ensure the real objective of the draft TPCA is achieved", Prof. Pawinee Praithong, researcher,added.
The research results clearly indicate that the draft TPCA is not consistent with a principle of law drafting. It is paradoxical within itself and contradicts with the Constitution and international agreements. Most importantly, this draft violates and excessively limits the liberty and rights of business, and affects the country's commerce and trade. Therefore, the direction the Council of State and the National Assembly can take is to meticulously revise this draft by considering all related impacts, so the law is fair and in accordance with the Good Governance principles. The acceptance by international community should be the establishment of balanced and fair laws in Thailand.