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Petitioner: PAKISTAN CHEST FOUNDATION And Others VS Respondent: GOVERNMENT OF PAKISTAN JUDGMENT
Court Name: Lahore High Court Judge(s): Muhammad Aqil Mirza Title:PAKISTAN CHEST FOUNDATION And Others vs GOVERNMENT OF PAKISTAN
JUDGMENT
Reported As: 1997 CLC 1379 Result: Order accordingly Judgment JUDGMENT This Constitutional petition has been filed by the Pakistan Chest Foundation, the Pakistan Anti- Tuberculosis Association and two others to seek the following relief:-- "It is, therefore, respectfully prayed that it may kindly be declared that the broadcasting and telecasting of advertisements on Pakistan Radio Network and Pakistan Television promoting sale of cigarettes and sponsorship of programmes displaying commercials and banners by the cigarette companies are illegal and without lawful authority. The respondents Nos. l to 6 may kindly be further restained from permitting of displaying commercials and banners by broadcasting and telecasting, as the case may be and arranging and associating with the sponsored programmes of the Pakistan Tobacco Company, respondent No.7, on the P. B. C. And P. T. V. To promote sale of cigarettes." The case set up by the petitioners is that the Pakistan Television. Corporation (PTV) is regularly advertising different brands of cigarettes for and on behalf of the various Tobacco Companies through alluring commercials, to promote and increase the sale of cigarettes in the country. Pakistan Broadcasting Corporation (PBC) is also broadcasting cigarette related advertisements from various Radio Stations in Pakistan. The telecasting and broadcasting of cigarette advertisements are done by the P.T.V. And the P.B.C. With a view to earn profits. 1t is pleaded that cigarette advertisements result in promoting cigarette smoking habit among the people of Pakistan, particularly the younger generation. Smoking does not only spoil the health of the smokers themselves but it also adversely affects the health of the non-smokers who are made to passively smoke because they perforce inhale the smoke emitted by the smokers while sitting near
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them. It is claimed that the P.T.V. And the P.B.C. Being financed and controlled by the Government of Pakistan they cannot be permitted to conduct their business or working in such a way that it contributes towards endangering human life and, therefore, cigarette advertisement on electronic media may be banned through Court direction. 2. The writ petition has been contested by the P.T.V., the, P.B.C. And various tobacco companies working in Pakistan. Their case is that there is no law which prohibits advertisements of cigarettes on the electronic media, therefore, the same cannot be banned by the Court in view of the provisions of Article 4 of the Constitution, which ordains that no person can be prevented from or be hindered in doing that which is not prohibited by law. The detailed arguments submitted on behalf of the parties appear hereinafter. 3.Mr. A. Karim Malik, learned counsel for the petitioners has made the following submissions:- (i)Cigarette smoking is dangerous to human life. According to him, it is now universally acknowledged truth that smoking endangers human life. He has made reference to various study reports which have been placed on record, to contend that cigarette smoking helps in causing and aggravating deadly diseases like Cancer, Chronic Bronchitis, Heart ailments and Peptic Ulcer etc. He has explained that tobacco smoke contains some 200 substances including carbon monoxide, nicotine and tars. Carbon monoxide results in supplying lesser quantity of oxygen to heart with danger of causing coronary artery diseases. Tars have the potentials of causing cancer while nicotine causes dependence and is as addictive as cocaine, heroin and Morphine. (ii)In recognition of the hazards involved smoking has been banned in public places in more than 63 countries of the world. Every cigarette packet also contains a warning that smoking is dangerous to health but despite that aluring, tempting and suggestive commercials are shown on the P.T.V., which has the effect of promoting cigarette smoking habit among the people of Pakistan, particularly the younger generation, which in turn ends in causing diseases and endangering human life in Pakistan. This cigarette advertisement on P.T.V. And the radio is made by various Tobacco Companies for the purpose of increasing sale of cigarettes while P.T.V. And P.B.C. Allow the impugned advertisement for earning profit for these undertakings through publicity charges. The P.T.V. And P.B.C. Being corporations in the public sector cannot be permitted to indulge in activities posing threat to human life, merely for the purpose of earning profits. (iii)The P.T.V. And the P.B.C. Are financed and controlled by the Federal Government, they work in connection with the affairs of the Federation, and hence they are persons within the meaning of Article 199 of the Constitution, to whom appropriate direction can be issued by this Court in Constitutional jurisdiction to desist from doing anything:, may have the affect of posing danger to human health. (iv)Learned counsel has pressed into service the provisions of Article 4 of the Constitution to contend that no action detrimental to life, liberty; body, reputation or property of any person can be taken, except in accordance with law. It is urged that smoking has detrimental effects on the 'life' and 'body' of the people and unless there is any law which may permit the advertisement of cigarette-related commercials, the P.T.V. And P.B.C. Who are Government controlled enterprises in the public sector cannot be allowed to telecast/broadcast cigarette advertisements, in violation of the spirit of Article 4. (v)Learned counsel has also placed reliance on provision of Article 2A which is reproduction of the Objectives Resolution, which inter alia, provides for social justice. According to the learned counsel, social justice means justice to the society in the cause of happiness of humanity and it inheres that the people should have healthy environment for their living. It is urged that to preserve and promote the commands contained in Article 2A, the P.T.V. And P.B.C. Should be restrained from acting in a manner which have the effect of spoiling the health of the people by promoting habits carrying potential danger to human health.
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(vi)Learned counsel also seeks enforcement of fundamental right enshrined in Article 9 of the Constitution, which guarantees 'life'. According to the learned counsel, commercials showing cigarette smoking are bound to end in contravention of this Constitution guarantee. Learned counsel has also submitted that it is duty of the State under Article 38 of the Constitution, to provide medical health which also includes health care through preventive methods. This object can be achieved if the P.T.V. And P.B.C. Are made to stop from advertising cigarette commercials so that smoking habits, particularly among the younger generation and children may be controlled. In not-shell the submission of the learned counsel is that on account of the dictates contained in Articles 2A, 4, 9 and 38(d) it is not permissible for the P.T.V. And the P.B.C. To telecast and broadcast cigarette related advertisements and to enrich themselves at the cost of the public health. The learned counsel has further argued that Article 18 of the Constitution does not bestow any right on the P.T.V. And P.B.C. To telecast and broadcast cigarette commercials which are to promote and induce cigarette smoking habits in the younger generation. Learned counsel has placed reliance on the following case-law, in support of the various submissions made by him:- (i.)Manzoor Elahi v. Federation of Pakistan (PLD 1975 SC 66). (ii)Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693). (iii)Afazuz Zubair v. Muhammad Idris (PLD 1978 Karachi 984). (iv)Begum Agha Abdul Karim Shorish Kashmiri v. Government of WestPakistan (PLD 1 Q") Lahore 438). (v)Muhammad Aslam Saleemi v. The Pakistan Television Corporation and another (PLD 1977 Lahore 852). (vi)Fateyab A.I Khan, President Pakistan Mazdoor Kissan Party v. Pakistan Broadcasting Corporation and Pakistan Television Corporation etc. (1991 CLC Note 197 at p.153). (vii) Sint. Maneka Gandhi, v. Union of India and another (AIR 1978 SC 597). 4. Mr. Aftab Ahmad Khan, learned counsel appearing on behalf of the P.T.V. Has argued that no relief as prayed for can be granted under Para (1) of sub-clause (1) of Clause (1) of Article 199 of the Constitution. It is also argued that this petition is not for the enforcement of fundamental right under sub--clause (c) of Clause (1) of the said Article, therefore, no direction can be issued for enforcement of any of the-fundamental rights. In this behalf he has argued that Article 4 does not fall in Chapter 1 of Part II of the Constitution relating to the fundamental rights. He has maintained that P.T.V. Is not a person within the meaning of Article 199, because it does not perform any function in connection with the affairs of the Federation or a Province. He has further maintained that under sub-clause (c) of Clause (1) direction for enforcement of a fundamental right can be issued on the application of an 'aggrieved person' as distinguished from an 'aggrieved party'. He has explained that aggrieved person can be a natural person and not an association. , 5. Mr. Aftab Ahmad Khan has further contended that the honourable Supreme Court in Amanullah Khan and another v. Chairman, Medical Research Council and 3 others (1955 SCMR 202) has already found that Article 9 of the Constitution is not attracted because through cigarette advertisement there is no deprivation of life:;According to the learned counsel, the pronouncement of the honourbale Supreme Court is binding and this Court cannot take a contrary view. With regard to Article 4, learned counsel has argued that unless there is specific prohibition through law the impugned advertisements cannot be banned. He has urged that the P.T.V. Is carrying on activities in accordance with the provisions of Articles 4 and 18 of the Constitution. Learned counsel has further argued that the P.T.V. Has already toned down cigarette related commercials by cutting down the portions which could be termed as tempting or alluring. According to him the P.T.V. Has also started anti-smoking campaign which counter-balances the ill-effects, if any, of cigarette commercials. Learned counsel has informed that income of Rs.70,000,000 per year is earned through cigarette commercials by the P.T.V. And the same is spent in showing other
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programmes of public interest, if this source of revenue earning is brought to an end the viewers will suffer for want of useful entertainment and informative programmes. He has also maintained that live telecasting of various sports events provides healthy pastime to the viewers, particularly the young and smoking as such is not shown in live telecasting of the sponsored sports programmes. In support of his arguments learned counsel has placed reliance on the following case-law: (i) Amanullah Khan and another v. Chairman, Medical Research Council and 3 others (1995 SCMR 202). (ii)Trustees of the Port of Karachi v. Muhammad Saleem (1994 SCMR 2213). (iii)Muntizma Committee, Al-Mustafa Colony (Regd.) Karachi and 3 others v. Director Katchi Abadis, Sindh and 5 others (PLD 1992 Karachi 54). (iv)Tanvir Iqbal Siddiqui v. The Provincial, Overseas Pakistanis' Foundation (OPF), Girls College, Islamabad. (1994 SCMR 958). (v)M.D. Tahir v. Federation of Pakistan (PLD 1996 Lahore 658). 5-A. Mr. Zia-ul-Qamar Bhatti, Advocate appearing on behalf of the P.B.C. Has adopted the arguments addressed by the learned.Counsel for the P.T.V. He has, however, maintained that Radio Pakistan broadcasts only the commentaries of the sports events and the advertisements do not in any way by words propogate or induce people to adopt smoking habit. 6. The case was mainly argued exhaustively by Mr. Sajid Zahid, Advocate assisted by Mr. Mahmood Mirza, Advocate on behalf of the Tobacco Companies. Mr. Shahzad Jahangir, Advocate also argued the case on behalf of the newly added Tobacco Company. Mr. Sajjad Zahid, Advocate has made the following submissions: - (i)The cultivation of tobacco, cigarette manufactui ing and cigarette smoking are lawful activities, as there is no law in the field to ban these activities, therefore, the lawful business of the tobacco companies cannot be restricted because of the protection available under Article 18 of the Constitution. (ii)The ban on tobacco advertisement will amount to put premium on the right of Tobacco Companies to do their lawful business of sale and marketing their products. He has further contended that the direction to ban tobacco advertisement will tantamount to curtailment of fundamental right as contained in Article 19. (iii)The honourable Supreme Court in the earlier Human Rights case reported as 1995 SCMR 202 which had been filed for the same relief which has been claimed in the present petition had disallowed the relief by observing that no fundamental right is violated through advertisements of cigarette commercials on the television. The pronouncement aforesaid is of binding nature and this Court cannot grant the relief prayed for. (iv)With regard to Article 4 it is argued that it is of much lower footing as it does not fall in the Chapter relating to the fundamental rights. At any rate, it is submitted that since there is no law which prohibits cigarette advertisement on the electronic media, no order can be passed for banning such an advertisement. (v)Mr. Sajid Zahid has vehemently argued that cigarette commercials on electronic media do not create effect of inducing people to smoke, rather it gives the person who are already smokers a right to choose among the various brands of cigarettes. This right of the smokers to choose the best brand according to their taste cannot be snatched away in the absence of law to that effect. In support of the submissions, learned counsel has placed reliance on the following precedents:- (i)Haji Ghulam Sabir v. Pan Allotment Committee and another (PLD 1967 Dacca 660). (ii)Farhat Munawar Bajwa v. The General Manager, PTC and 3 others (1988 CLC 545). (iii)National Industrial Cooperative Credit Corporation and another v Government of Punjab (PLD 1992 Lahore 462).
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(iv)B.Z. Kaikaus and others v. President of Pakistan and 15 others (PLD 1980 SC 160). (v)The State v. Zia-ur-Rehman and others (PLD 1973 SC 49). (vi)Sultan Textile Mills v. Muhammad Yousaf Shamsi (PLD 1972 Karachi 226). (vii) Kaneez Fatima v. Wali Muhammad (PLD 1993 SC 901). (viii)Amanullah Khan and another v. Chairman Medical Researcb, Council and 3 others (1995 SCMR 202).. (ix)Abdul Ghafoor and another v. Mst. Iqbal Begum and another (PLD 1975 Lahore 57.4). (x)Mst. A:mir Bano v. S.E. Highway (PLD 1996 Lahore 592) 7. Mr. Shahzad Jahangir-in addition to the arguments addressed by Mr. Sajid Zahid has maintained that this court while issuing direction contemplated by Article 199 of the Constitution has to see that there should be a law which is infringed and only then a restraint order can be passed. He has argued that Para. (a) of sub-Article (2) of Article 4 cannot be read independently. It has to be read in conjunction with Para. (b) or (c) of this sub-Article. He has urged that since there is no law -in existence which bans either the cigarette production or cigarette advertisement, therefore, this Court has no jurisdiction to ban cigarette advertisement on electronic media. According to him, right to advertise is inherent in the right to manufacture cigarettes and to market the same. There is no law which prohibits either the manufacture or sale of cigarettes in Pakistan or anywhere else in the world. He has argued that the petitioners should pressurise the members of the Parliament to make law providing for banning the cigarette advertisement and build up public opinion in that behalf, rather than to move petition in this Court. 8. Kh. Saeed-uz-Zafar, learned Deputy Attorney-General appearing for Government of Pakistan in answer to a specific query from the Court has stated that smoking is injurious to human health as per the considered opinion of the Director General Health. He has further stated that the Federal Government is also of the view that smoking is, injurious to the health of the people. However, he has challenged the jurisdiction of this Court to issue any direction banning cigarette commercials on the electronic media, in view of the decision of the honourbale Supreme Court in the aforementioned Human Rights case. He has also argued that cigarette smoking may be reasonable lust and leisure for some time for a section of the people and their interest too has to be looked after by the Government in view of the provisions of Article 38(b) of the Constitution. In essence, he has conceded the health hazards involved in cigarette smoking but he has challenged the jurisdiction of this Court to issue appropriate writ banning cigarette advertisement on the electronic media. 9. After hearing the learned counsel for the parties I am of the view that the following points require to be decided for proper adjudication of the controversy involved in this petition:- (i)Whether cigarette smoking is injurious to human health and whether cigarette related advertisements on the electronic media contribute in promoting smoking habits in the people, particularly the younger generation. (ii)Whether the petitioners have the necessary locus standi to move the Constitutional petition for the relief prayed for. (iii)Whether the P.T.V. And the P.B.C. Are persons within the meaning of Article 199 of the Constitution, to whom direction can be issued to stop telecasting/broadcasting cigarette commercials. (iv)Whether the provisions of Articles 2A, 4, 9 and 38(d) of the Constitution can be pressed into service for issuance of direction to the P.T.V. And P.B.C., to stop cigarette advertisements on the electronic media and whether such a direction requires to be issued in the circumstances of the case. (v)Whether the freedom of trade and business of the companies to market tobacco products will be adversely affected in terms of Article 18 of the Constitution if the P.T.V. And the P.B.C. Are
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restrained from telecasting and broadcasting cigarette commercials. (vi)What is the effect of the order passed by the honourable Supreme Court in the case reported as 1995 SCMR 202 and whether this Court' can grant the relief prayed for despite the said pronouncement. 10. In order to resolve the question whether smoking is hazardous to human life or not it will be profitable to reproduce hereunder the opinions of the World Health Organization and the Director General of Health Services, Government of Pakistan. The letter dated 1-3-1995 written by the Representative of W.H.O. In Pakistan reads as under:- "It is an honour and matter of great pleasure for us to place hereunder the views of the World Health Organization before the Lahore High Court regarding the effects of smoking on human body. It has been scientifically proven that use of tobacco, in any form: smoking, chewing, or sniffing, is the leading cause of premature deaths. Ninty-five per cent of lung cancers, 85 % of chronic bronchitis and 25 of heart attacks are attributable to smoking. . Hazards of tobacco use are well-know now. Not only the smokers' life is at risk but those of passive smokers as well. New bores, who open their eyes in the lap of smokers and their companions who unintentionally inhale that expelled much carbonized poisonous smoke also become the focus.Of many killing diseases. If current smoking patterns persist, over 80 per cent. Of the World's population will be killed by tobacco. Tobacco use is an unnecessary burden on national economy. There are about one billion smokers in the world right now and they smoke over five trillion manufactured cigarettes per year. Only in Pakistan more than 30 billion cigarettes are manufactured in a year. It may be termed that the people of Pakistan are converting into ashes approximately an amount of more than 22.5 billion annually. This is just an estimate. Real figures may be five or even ten times higher if all factors and use of all kinds of tobacco (pipe, cigar, huqqa, chewable and sniffed tobacco) are taken into consideration. On the other hand the Government of Pakistan is facing difficulties in allocating appropriate amount of funds for Health Sector. Information media, particularly the Television disseminate information to mass audiences. As an irony fate, in some countries of the world including Pakistan, this, important information media is actively involved in allurement of teenagers to tobacco thrall. Through attractive advertisement on T.V. The Voung_generation yearn for a cigarette and fall in prey of smoking. There is convincing evidence that bans on tobacco advertising will produce beneficial effects on consumption. Many examples in the developed countries now confirm the sound basis of this form of action. In countries where advertising has been totally banned for public health reasons, tobacco consumption has fallen four times as fast as in countries with more limited bans. In countries including Pakistan where tobacco advertisement is authorized in all the media, tobacco consumption has increased, as mentioned above. No policy of smoking prevention can be effective while tobacco advertisement is permitted in one form or another, particularly by Pakistan Television. Moreover, it does not seem logical to convince young people of the harmful nature of tobacco, if at the same time Pakistan Television permits unlimited or limited advertising of the same substance. A few good reasons for supporting a tobacco advertising ban are given hereunder: - Tobacco advertising creates a positive climate of social acceptability for smoking which is against the cultural norms as well as 'it causes the death of many people each year e.g. 500,000 people in 12 countries of the European Community alone. More than 90% of all smokers begin to smoke as teenagers, 44% of all adolescents either experiment with or regularly use tobacco products, children as young as six years have been shown to identify cigarette advertisements reliably. The failure of this generation to start smoking devastate the industry within 10 years.
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A survey in the European countries in 1992 showed that 74 % of Europeans in the 12 member countries support a ban on tobacco advertising. Data from 18 countries show that legislation banning tobacco promotion has had the effect of reducing did numbers of young people who begin smoking. The ban on tobacco advertisement in Norway, Finland, Canada and New Zealand was followed by a reduction in smoking so great that it could not reasonably be attributed to any other factor. The principle of a tobacco advertising ban on television is already acknowledged and applied in a large number of countries e.g. In 1989, the European Community adopted directive concerning broadcasting activities, which prohibits all forms of television advertising for tobacco products. , The Government of Pakistan resources for health are merely 0.8 % of GNP. It is impossible that life risks being spread through billions could be controlled by such a meager amount unless additional appropriate protection measures are adopted. Therefore, the World Health Organization strongly recommend that Pakistan Television should enforce a ban on cigarette advertisement. Instead of telecasting cigarette advertisement, Pakistan Television should contain a regular campaign in its programmes against smoking." The views of the Director-General Health, Government of Pakistan are as under:-- "Views on iniurious effects of smoking on human health: Director-General Health, Ministry of Health, Government of Pakistan The Health Ministry is of the view that smoking is an insidious killer.It stalks its victim painlessly and so slowly that it may be years before he notices effects of smoking. The relationship of cigarette smoking to health has been clearly demonstrated. Diseases most commonly associated with smoking are; lungs cancer, bronchitis and emphysema, ischemic heart diseases, other cancers of lips, tongue, mouth, larynx, bladder, gastroduodenal ulcer. The World Health Organization has considered smoking as the largest single preventable cause of ill-health. Many research studies, throughout the world, have been carried out to find the effects of smoking on human health. Some of the findings are as following:- (a)Smoking is responsible for increased mortality such as:- --90% of lung cancer deaths. --75 % of bronchitis deaths. --24 % of ischemic heart disease deaths, under 65 years of age (b)Apart from its effect on mortality, smoking results in increased morbidity rate such as:- Babies of smokers have twice as many attacks…
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