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Harvard FXB Health and Human Rights Consortium Student Essay Competition 2015.
Georgetown University’s winning essay was written for the course “Business and Healthy Lifestyles,” taught by Professor Roger Magnasson, Spring 2015.
The years have seen a rise in the burden of disease and death associated with tobacco. According to the World Health Organization (WHO), tobacco use kills nearly 6 million people a year.1More than 5 million of these deaths are a result of direct tobacco use, and about 600,000 are due to non-smokers’ exposure to secondhand smoke.2 While tobacco use is of concern in countries around the world, the greatest burden on health due to tobacco has been felt in developing countries.3
States have an obligation under international human rights law to promote, protect, and fulfill the right to the highest attainable standard of health.4 The Framework Convention on Tobacco Control (FCTC) further reaffirms the right of all people to the highest attainable standard of health and sets standards for States to curtail the burden of tobacco. Moreover, the right to health is now well recognized in many State constitutions. Various constitutional provisions, such as those obliging courts to consider international law in their judgments and those establishing the need for the independence of the judiciary and standing, provide a basis for holding States accountable for their obligations. According to the Office of the UN High Commission for Human Rights, nearly 115 constitutions around the world speak to the right to health.5 In the Americas alone, 18 of 35 countries in the region now recognize a constitutional right to health.6
In efforts to help protect health, countries throughout the world have taken significant steps to regulate tobacco use through the implementation of tax initiatives, education and awareness strategies, packaging and labeling requirements, and smoke-free laws. Yet the tobacco industry has struck back, often through litigation, claiming that regulation of tobacco violates its right to freedom of expression, enterprise, and property. The regulation of tobacco brings into question the need to balance fundamental rights. Applying the principle of proportionality and relying upon constitutional guarantees of the rights to health and life, courts around the world have played a vital role in upholding smoke-free legislation and bans on advertising in efforts to protect the right to health.
Nonetheless, the adjudication of health and other socio-economic rights raises questions of judicial legitimacy and poses democracy-based concerns.7 Scholars now question whether the enforcement of social rights should lie primarily with the legislature or the judiciary. Judicial engagement with such rights is further questioned on its ability to truly effectuate change on the ground. It is within this context that the role of courts in holding states accountable for their human rights obligations, and expanding the content of the right to health to include tobacco control, becomes increasingly important. Courts in some countries, including South Africa and India, have been able to successfully adjudicate economic and social rights.
Taking the example of tobacco litigation in India and South Africa, this essay shows the different ways in which constitutional provisions providing for human rights and establishing broad powers for the judiciary have enabled courts to play a vital role in upholding the right to health. It first considers the constitutional protection of health in those countries and then analyzes the British American Tobacco South Africa (PTY) Ltd v Minister of Health (BATs) case and the Murli S. Deora v. Union of India and Ors (Murli Deora) case in India to show how the respective courts came to uphold the right to health.8 The BATs case is interesting in that it highlights the way constitutional provisions requiring courts to turn to international law in their decisions can be vital in upholding the right to health. On the other hand, the Murli Deora decision shows the extent to which judicial engagement with health can result in policy change on the ground. The paper concludes with lessons that can be learned from the examples of tobacco litigation cases in both countries.
The Constitution and the right to health in South Africa
The 1996 South African Constitution has been hailed as a landmark document given the way it aims to protect the right to health and other socioeconomic rights on an equal basis with civil and political rights.9 The Bill of Rights includes traditional civil and political rights and a comprehensive set of economic, social, and cultural rights. All rights are enforceable and considered equal, and the judiciary, under Section 172, has wide discretion to grant remedies as appropriate.10 Moreover, Section 39(1)(b) obliges the judiciary to consider international law when interpreting the bill of rights.
Section 27(1) specifically provides for the right to health care services, including reproductive health, and Section 27(2) obliges the State “to take reasonable legislative and other measures, within its available resources…to achieve the progressive realization of, among others, health care rights.” Moreover, no one “may be refused emergency medical treatment” as pursuant to Section 27(3). Basic health care services for children are provided by Section 28 (1)(c), and 35(2)(e) provides for the “adequate medical treatment” of detainees and prisoners at State expense.
Tobacco control and courts in South Africa
Since its establishment, the Constitutional Court has shown a “formal commitment” to socioeconomic rights given the development of its human rights jurisprudence.11 While a strong constitutional frame calling for equality between the sets of rights has allowed for the judiciary to boldly interpret and uphold the Constitution, in a number of decisions, the obligation to consider international law has been especially pivotal in ensuring health outcomes. In the context of tobacco, the case of BATs v. Minister of Health is particularly noteworthy.
Tobacco use has long posed significant concern in South Africa. During the 1970s and 1980s, tobacco control was not on the public agenda, and for decades the tobacco industry used its relations with the government to prevent any imposition of policy that might restrain the growth of the industry.12 In fact, on tobacco issues, the government would regularly consult the tobacco industry before presenting any tax increases that could affect their business.13 With the change in government in 1994, the Africa National Congress (ANC) announced that tobacco control would be placed high on the agenda. In 2005, South Africa ratified the FCTC, and through the implementation of the Tobacco Products Control Act 83 of 1993, regulated various aspects of tobacco control including, but not limited to, banning public smoking, imposing packaging and labeling requirements, and restricting tobacco advertisements, promotion, and sponsorship.14 Considering the extent to which advertising and promotion of tobacco products can be particularly harmful in encouraging children and young people to use tobacco products, the Tobacco Products Amendment Act 63 of 2008 was implemented to further restrict packaging and advertising.15 Alleging the unconstitutionality of both the Tobacco Products Control Act and the Amendment Act of 2008, BATs brought a suit against the Ministry of Health and the National Council Against Smoking.
In the BATs decision, the South African Supreme Court of Appeal applied the principle of proportionality to determine whether a limitation on BATs’ right to commercial speech as imposed by the Tobacco Products Amendment Act 63 of 2008 was reasonable and therefore justifiable. BATs claimed that the restriction imposed on advertisement of tobacco products under section 3(1)(a) of the Act limited not only the appellant’s right to engage in commercial expression, but also the freedom of tobacco consumers who were denied the right to receive information concerning tobacco products.16
In considering whether the limitation was justified, the Court balanced the right of smokers to receive information concerning tobacco products against the government’s obligation to take steps to regulate health. The Court found that commercial speech was not an absolute right and that the hazards of smoking far outweigh the interests of smokers as a group. It considered the fact that smokers are not a “monogenous group” and that some smokers wish to quit, while others may not want to return to the habit.17 In this way, it found that the ban on advertisement met the health needs of all people. Most interestingly, however, the Court affirmed its decision by relying on section 39(1)(b) of the Constitution, which requires judges to have regard for international law when interpreting the Constitution. Accordingly, the Court turned to the fact that South Africa was a party to the FCTC and that it was obliged to give weight to the treaty.18 It thus held that FCTC Article 13 requires parties to ban all tobacco advertising, promotion, and sponsorship, and that the restriction was consistent with the country’s obligation to comply with the FCTC.19
The BATs decision is interesting as it highlights the extent to which the Supreme Court of Appeal was willing to go to uphold government action regulating health. It suggests that a constitutional frame, which provides for socioeconomic rights on an equal basis with civil and political rights, may at times allow for socioeconomic rights to trump other individual rights. The decision shows that while it is necessary to protect all rights in a democratic society, the interest in upholding certain socioeconomic rights may at times be more important for the function of society—especially when public health is at stake. Most importantly, it shows the extent to which Constitutional provisions requiring courts to turn to international law may be necessary in protecting health, and grounding the ability of courts to affirm health obligations of States.
The Constitution and tobacco control litigation in India
Unlike the direct justiciability of the right to health in South Africa, the right to health and other socioeconomic rights are enshrined as Directive Principles in Part IV of the Indian Constitution. Such rights are intended to guide State policy and are not directly enforceable by courts. Nevertheless, the Directive Principles are “fundamental in the governance of the Country,” and the State is obliged to apply these principles when making laws.20 Moreover, the State has a duty, pursuant to Article 47, to improve public health and the right to health of workers (39)(e) and (f) of children.21
An absence of a constitutionally recognized justiciable right to health, however, has not been detrimental to the protection of fundamental rights. Pursuant to Articles 32 and 226 of the Constitution, the Supreme Court and High Courts have wide discretion to grant appropriate remedies for violations of rights under the Constitution.22 The Constitution further follows separation of powers, and the country envisages a strong and independent judiciary, which has allowed courts to “stand as a bastion of rights and justice”; courts can test not only the validity of laws but also of constitutional amendments.23 The Supreme Court has asserted its powers to hold that fundamental rights (civil and political rights) are not superior to directive principles, but that the two are complementary and that “harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.”24 The right to health and other socioeconomic rights, as a result, have been read into the right to life (Article 21) and by drawing upon the connection between rights, courts have held the State responsible for its obligations.
In a nation stymied by vast socioeconomic disparities, unequal access to justice, and unmet basic social needs, the Supreme Court devised Public Interest Litigation (PIL) as a means to facilitate the realization of fundamental rights for those most in need. PIL serves as a vehicle to initiate socio-economic change as it allows litigants to challenge legislation and bring claims on behalf of vulnerable communities, while setting aside procedural requirements.25 Accordingly, those who would otherwise be unable to afford legal counsel or access courts are able to bring claims. And judges have used their broad constitutional powers to enforce wide reaching remedies to meet the needs of many.
In the context of health, the judiciary has not only played a critical role in providing indicators for the right to health, but has also brought about policy change within the State. With respect to tobacco control, Murli S. Deora v. Union of India and Ors (Murli Deora) is particularly noteworthy as it shows the extent to which violations of the right to health, vis à vis the right to life, occur when the State does not regulate tobacco.26
In India, tobacco has been directly and indirectly responsible for nearly 800,000 deaths annually, and tobacco related diseases and resulting loss of work productivity costs the country over 2 billion US Dollars annually.27 In the case of Murli Deora, the petitioner, a former member of the Indian Parliament, lodged a complaint on grounds that the State’s omission to effectively regulate tobacco use was a violation of life, health, and the duty of the State to raise the level of nutrition and the standard of living to improve public health.
Through an interim order, the Supreme Court prohibited smoking in public places, saying that it was injurious to the health of passive smokers. The Court further directed the State and local governments to ensure that smoking is prohibited in all public places, including auditoriums, hospital buildings, health institutions, educational institutions, libraries, courts, public offices, and railways.28 Given the decision, local governments proceeded to enact tobacco control regulations. Kerala was the first state to pass tobacco control legislation and thereafter, two more state governments approved tobacco control laws.29 At the national level, the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act of 2003 was implemented. The case is reflective of the way litigation can catalyze the development of a legal framework in the absence of regulation. The result was the realization of health rights through creation of smoke-free public places, bans on advertising, limitations on the sale of tobacco products, and prohibition of tobacco industry interference in public policy making.
The approaches taken in India and South Africa show clearly the different ways in which constitutional provisions providing for health and those granting wide power to judges can be vital in accelerating progress in tobacco control. The right to health is directly justiciable in South Africa, and the Court in the BATS decision was able to directly uphold it over the tobacco industry’s right to freedom of speech. Moreover, the Court was able to further affirm its decision given that the Constitution obliges judges to turn to international law. In India, even though health is not directly justiciable as established by the Constitution, courts have played a fundamental role in holding the State accountable for its obligations to regulate tobacco through the right to life. Moreover, the broad constitutional powers granted to judges and the development of PIL has allowed for courts to uphold the right to health and ensure access to justice for those most vulnerable. The examples of India and South Africa suggest that courts can play a significant role in ensuring health outcomes. Constitutional provisions granting wide discretion to judges to up hold rights and those requiring courts to turn to international law in their judgments can be vital to ensure access to justice for many. In this regard, there is a real need for countries around the world to continue to develop and broaden laws on standing so as to ensure access to courts for large groups of people; and where possible that constitutional provisions requiring judges to turn to international law be upheld in order to encourage judges to more boldly enforce the right to health.
Diya Uberoi is a graduate student at the O’Neill Institute for National and Global Health Law at Georgetown University, Washington DC, USA.
Please address correspondence to the author at Diya.firstname.lastname@example.org.
Competing interests: None declared.
Copyright © 2015 Uberoi. This is an open access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/), which permits unrestricted noncommercial use, distribution, and reproduction in any medium, provided the original author and source are credited.
4 International Convenant on Economic, Social and Cultural Rights (ICESCR), G.A Res. 2200A (XXI), Art. 12. Available at http://www2.ohchr.org/eng- lish/law/cescr.htm; Committee on Economic, Social, and Cultural Rights. General Comment 14, The Right to the Highest Attainable Standard of Health, UN Doc. No. E/C. 12/2000/4 (2000).
7 For some discussion on the justiciability of socio-economic rights, see E. Christiansen, “Adjudicating non-justiciable rights: Socio-economic rights and the South African Constitutional Court,” Columbia Human Rights Law Review 38/263 (2007) pp.321-362; J.K. Mapulunga-Hulston, “Examining the justiciability of economic, social and cultural rights,” International Journal of Human Rights 6/4 (2002); C. Sunstein, “Social and economic rights? Lessons from South Africa,” University of Chicago Public Law Working Paper 12/124 (2001) pp.1-17.
8 British American Tobacco South Africa (Pty) Ltd v. Minister of Health (2012), ZASCA 107 (South African Supreme Court of Appeal); Murli S. Deora v. Union of India and Ors. (2002), AIR 2002 SC 40 (Supreme Court of India).
9 S. Liebenberg, “South Africa: Adjudicating social rights under a transformative constitution” in M. Langford, Social rights jurisprudence: Emerging trends in international and comparative law (Cambridge, UK: Cambridge University Press, 2008).
23 G. Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1999) p.175; S Deva, “Public interest litigation in India: A critical review,” Civil Justice Quarterly 28/1 (2009), pp. 19-40.
24 CB Boarding & Lodging v State of Mysore (1970), AIR 1970 SC 2042; Kesvananda Bharti v State of Kerala (1973), AIR 1973 SC 1461; Minerva Mills Ltd v Union of India, (1980) AIR 1980 SC 1789; Unni Krishnan v State of AP (1993),1 S.C.C. 645; Minerva Mills Ltd v Union of India, at 1806.
25 A. Grover, M. Misra, and L. Rangarajan, “Right to health: Addressing inequities through litigation in India,” in A. Gross, The right to health at the public/private divide: A global comparative study (Cambridge: Cambridge University Press, 2014), pp. 423, 435.
29 As discussed by O. Cabrera and J. Carballo in“Tobacco control litigation: Broader impacts on health rights adjudication,” Journal of Law Medicine and Ethics 41/1 (2013), p. 156.
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