Smoking ban? Try the sidewalk

Gregorio Miguel Pallugna

BEFORE anything else, let me emphasize that a Philippine President has absolutely no power to create laws, much less penal statutes such as a decree criminalizing smoking. The Philippine Constitution vests the power to create laws upon the Congress alone, and the president merely signs his approval of the law. Should the president decide to veto a particular law, Congress can even override his veto and insist that the law be passed. That is the nature of our present legislative system.

What is E.O. 26, then? It is merely an Executive Order that supposedly enforces an existing law – R.A. 9211 or the Tobacco Regulation Act that was passed a long time ago in the year 2003 during the term of President Gloria Macapagal-Arroyo. Yes, it apparently was never implemented as far as banning smoking in public places is concerned. Nevertheless, here comes Mayor Rody Duterte with his iron political will and decided to do what any selfespecting President would do, impose the law. He issues E.O. 26 and everything seems to be in perfect order. Wrong.

The first mistake can be seen from the definition of the crime of public smoking. Section 3(a) of E.O. 26 simply prohibits “smoking within enclosed public places and public conveyances, whether stationary or in motion, except in designated smoking areas fully compliant with the requirements of Section 4 of this Order.”  The order also defines public conveyances in Section 3(i) as “modes of transportation servicing the general population, such as, but not limited to, elevators, airplanes, ships, jeepneys, buses, taxicabs, trains, light rail transits, tricycles and other similar vehicles,” while it defines public places in Section 3(j) as “all places, fixed or mobile, that are accessible or open to the public or places for collective use, regardless of ownership or right to access, including but not limited to, schools, workplaces, government facilities, establishments that provide food and drinks, accommodation, merchandise, professional services, entertainment or other services. It also includes outdoor spaces where facilities are available for the public or where a crowd of people would gather, such as, but not limited to playgrounds, sports grounds or centers, church grounds, health/hospital compounds, transportation terminals, markets, parks, resorts, walkways/sidewalks, entrance ways waiting areas and the like.” Whew! They might have as well put “No Smoking Anywhere!” and saved themselves a lot of time and effort.

That definition practically covers every place you can probably think of and that’s it for public smoking. But wait! Read Section 3(a) again. It clearly says smoking is prohibited within “enclosed” public places and public conveyances only. Ah… There’s the glitch. Section 3(c) defines the word enclosed as “being covered by a roof or other structure serving the purpose of a roof, and having one or more walls or sides, wherein the openings and the walls or sides have an aggregate area that is less than half of the total wall space, regardless of the type of material used for the roof, wall or sides, and regardless of whether the structure is permanent or temporary. Doors and windows that can be opened and shut shall not be considered as openings under this paragraphs. The enclosed character of a building or conveyance shall attach to all its areas, including its open spaces.”

The insertion of the word “enclosed” practically removed from the prohibition all open outdoor spaces where facilities are available for the public or where a crowd of people would gather, such as, but not limited to playgrounds, sports grounds or centers, church grounds, health/hospital compounds, transportation terminals, markets, parks, resorts, walkways/sidewalks, entrance ways waiting areas. Smokers -1, Public – Zero!

Interestingly, in Section 4(a), the Executive Order provides that there shall be no designated smoking areas in an enumeration of public areas such as centers of youth, hospital premises, etc. Why of course, there is no need for DSAs in such areas because EO 26 does not prohibit smoking there!

There is a silver lining for health advocates though, E.O. 26 is actually just a propaganda material intended to bring attention back to the real law, RA 9211, which actually has a different definition of the crime of smoking in public places. This is not without a problem, though.

While E.O. 26 merely says that there shall be no DSAs in the enumerated places, R.A. 9211, Section 5, actually prohibits smoking there. The law absolutely prohibits smoking in “(a) Centers of youth activity such as playschools, preparatory schools, elementary schools, high schools, colleges and universities, youth hostels and recreational facilities for persons under eighteen (18) years old; (b) Elevators and stairwells; (c) Locations in which fire hazards are present, including gas stations and storage areas for flammable liquids, gas, explosives or combustible materials; (d) Within the buildings and premises of public and private hospitals, medical, dental, and optical clinics, health centers, nursing homes, dispensaries and laboratories; (e) Public conveyances and public facilities including airport and ship terminals and train and bus stations, restaurants and conference halls, except for separate smoking areas; and (f) Food preparation areas.”

Notice that in Section 5(e) of R.A. 9211, public conveyances and public facilities are mentioned again. The law defines public conveyances the same way as E.O. 26 does, but public places is defined differently as “enclosed or confined areas of all hospitals, medical clinics, schools, public transportation terminals and offices, and buildings such as private and public offices, recreational places, shopping malls, movie houses, hotels, restaurants, and the like.” That word “enclosed” again. Smokers -2, Public – Zero!

In sum, we can conclude that, other than in centers of youth activity, elevators and stairwells, locations where fire hazards are present, premises of hospitals and health centers, and food preparation areas, smoking is allowed in all non-enclosed or open spaces including public roads and sidewalks. What a gaping hole!