Legal experts wrangle over inclusion of security forces as public officials in Tobacco Control Act

There was a clash of legal opinions on Thursday between Solicitor General Marlene Aldred and Albert Edwards, legal consultant to the Ministry of Health and Wellness, on the question of whether members of the security forces should be captured in the Tobacco Control Act, 2022, as public officials.

The proposed statute, which is now being reviewed by a joint select committee of Parliament, restricts interactions between public officials and members of the tobacco industry in furtherance of a business activity, except in circumstances where it involves the regulation of the tobacco industry.

The solicitor general and other legal minds from the Ministry of Health and Wellness, the Legal Reform Unit, among others, provide technical legal guidance to the committee as lawmakers deliberate on the provisions in the bill.

At yesterday’s sitting of the committee, the solicitor general questioned why members of the security forces were captured in the legislation as public officials.

It was disclosed that the Attorney General’s Chambers had raised concern about the inclusion of judicial officers as public officials and they were removed from the bill.

Edwards, the former chief parliamentary counsel, indicated that while he respected the views of the solicitor general, she would have to “properly convince” him as to why members of the security forces should not be treated as public officials for the purpose of legislation like the Tobacco Control Act.

Edwards also raised the question of the “consequences of interaction between officials and the tobacco industry in the reality of the Jamaican society”.

“I say no more,” he quipped.

Chairman of the committee, Dr Christopher Tufton, sought to clarify what Edwards alluded to in his response to the solicitor general.

“So you are saying that members of the security forces, theoretically, could become players of the tobacco interest, so they should be captured in the net even though they have a primary burden to pursue and enforce the law,” Tufton said.

But Aldred pressed for clarification.

“I am still trying to understand, who are we trying to cover under this legislation? Are you saying that police officers are going to act in such a manner that you have to restrict their interactions with the tobacco industry?” she asked.

However, Edwards said that the legislation has captured every public officer, but Aldred reminded him that judicial officers had been removed from the proposed law. “Why did you remove judicial (officers) and not police (officers)?” she questioned.

Aldred also argued that members of the Jamaica Defence Force (JDF) were not classified as public officers within the meaning of the Constitution.

“What threat does the JDF pose for this legislation?” she again questioned, noting, “You always have to go back to the intent. How does the military play any major role here?

“I have the concern because of the restrictions in this law – restrictions that we have in this law that we have nowhere else in Jamaican law – and you have to be clear about why you are going to impose it on such a wide cross section of persons, and I am very unclear about that.”

However, Edwards contended that “if you are speaking about equality from a constitutional perspective, how would we justify keeping certain categories of officials out of these restrictions and limitations and others limited and restricted?”

Responding, Aldred insisted that members of the military were not public officers under the Constitution but have been inserted into the bill.

“This is not as if you have to justify leaving someone out; you have to justify putting them in,” she said.

ISSUE OF SMOKING

Tufton said that from a public-health perspective, the Tobacco Control legislation is different from other types of laws because it attempts to address the issue of smoking, which has a deleterious effect on society.

He indicated that the tobacco industry has faced tough legislation in other jurisdictions in terms of those who exercise their right to smoke as well as those impacted by the consequences of smoking.

Edwards told lawmakers that the provisions in the bill dealing with interactions with the tobacco industry did not attract the same level of penal sanctions as those relating to conflict of interest and the acceptance of gifts.

“These provisions dealing with interactions are the broad-based provisions that seek to separate the public officials in the widest context from the tobacco industry,” he reasoned.

The solicitor general also queried why the definition of public official from the Integrity Commission Act was used in the Tobacco Control Act.

Arguing that there was a rationale for using such a broad definition of public official in the Integrity Commission Act, Aldred said that she was not satisfied that that definition was needed in the Tobacco Control Act.

‘Public official’ means any person holding an administrative, an executive or a judicial office, or a parliamentarian whether appointed or elected, whether permanent or temporary, or whether paid or unpaid. It also includes any other person who is employed to a public body and any member of the security forces.

The proposed law stirred controversy during earlier deliberations, particularly with a provision that restricts public servants from investing in tobacco or related companies.

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