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Bataan anti-smoking ordinance too strict — CA

Alvin Murcia

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In a 13-page ruling, the Court of Appeals (CA) yesterday affirmed a ruling issued by a lower court which declares an ordinance regarding the imposition of a total ban on the use, sale, distribution and advertisement of tobacco products in the city of Balanga, Bataan was unconstitutional.

It was upheld by the CA, through the ruling penned by Associate Justice Jane Aurora Lantion of the 16th division, that the City Council of Balanga transgressed the jurisdiction of Congress by passing Section 5 of Ordinance 09, which expands the scope of Sections 5, 6, 10 and 22 of Republic Act (RA) 9211 or the Tobacco Regulations Act of 2003.

RA 9211 bans smoking only within a specific number of public places and prohibits sale and advertisement of tobacco products in limited circumstances, which makes the ordinance stricter than the law.

The ordinance took effect in 2017, but its implementation was stopped after the Regional Trial Court of Balanga City Branch 93 issued the ruling on 5 July 2018 wherein the ordinance was described as “unreasonable and discriminatory” and tantamount to restriction or prohibition of free trade.

“Clearly from the foregoing, the City Council of Balanga have overstepped Congress by passing an ordinance which imposes more prohibited acts than those specified under national stature (RA 9211),” the CA explained in its ruling.

“Therefore, the challenged Ordinance should be struck down as invalid for being ultra vires (an act done without authority) since it contravenes RA 9211,” the CA adds.

Local officials claimed that the ordinance is consistent with the pronouncement of the President’s policy against smoking and in compliance with the State’s obligation under the World Health Organization’s Framework Convention on Tobacco Control (WHO FCTC) to adopt a comprehensive range of measures designed to reduced tobacco use and exposure to tobacco smoke was not given weight by the CA.

However, the CA upholds that “while the respondents-appellants claim that the challenged Ordinance was in conformity of the WHO FCTC, they cannot simply disregard the provisions of RA 9211 for the plain reason that in this country the latter law governs.”

The CA said RA 9211 should prevail over WHO FCTC, thus the respondents-appellants in drafting the challenged Ordinance should have taken into consideration the provisions of RA 9211.

The WHO FCTC was signed by the President in 2003 and concurred by the Senate in 2005.

Although the ordinance was compliant to WHO FCTC, Republic Act 8749 or the Philippine Clean Air Act of 1999 and Executive Order 26, series of 2017, the court noted the said laws do not totally ban smoking and selling of tobacco products.

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