Discourse on Human Rights Issues and Public Policy Context: Prospect
of Indonesia Tobacco Control Regulation
NYOMAN MAS ARYANI, I GEDE YUSA
Department of Constitutional Law, Faculty of Law
Udayana University
Jalan Pulau Bali Number 1, Sanglah, Denpasar, Bali 80114
INDONESIA
Abstract: - The efforts on tobacco control are based on two main philosophies which are focused on human
rights and the economy. This is observed for every country that is willing to reduce tobacco consumption and
slightly ensure prosperity at the same time. It is being discussed in the international community that some
countries are not a party to FCTC (Framework Convention on Tobacco Control) but have a domestic regulatory
system for tobacco or are committed to implementing other obligations based on international norms at the
minimum. This research specifically examined institutions and rules besides politics and judiciary enforcement
in tobacco control regulation through the application of comparative and system approaches within the legal
political context and a qualitative method. It was discovered that Indonesia has the ability to deliberate
domestic regulatory systems to combat and reduce tobacco use despite the strong interference by tobacco
industries and markets that are approaching legislatures, politicians, or executive apparatus to create different
institutional interests. This usually leads to a mixture of verdict and judgment for the judiciary and legal
enforcement.
Key-Words: Human Rights, Public Policy, Tobacco Control Regulation, Indonesia
Received: October 28, 2022. Revised: March 4, 2023. Accepted: March 26, 2023. Published: April 27, 2023.
1 Introduction
There is a recent shift to the discussion on the issue
of tobacco with the focus on its management and
control to attain the highest level of health, [1] and
preserve the environment from any dangerous
substance of tobacco and its product, [2], while
pursuing liberalized trade and economy, [3]. The
attention is also on shifting the protection of
economic rights, [4] such as the freedom to trade as
part of the efforts to improve public welfare, [5].
Moreover, the international community has agreed
to deal with any international legally binding
documents, especially under the UN framework, on
matters relating to tobacco control such as the
UDHR and ICESCR which are focused on human
rights, WTO-GATT on liberalization of goods and
service trades, and WHO that specifically designed
(FCTC) and its protocols in 2003 and 2012
respectively to combat illicit tobacco trade.
FCTC is the landmark international law
document widely recognized by UN members
compared to other documents emphasizing tobacco
control in recent times. This can be associated with
its focus on the rights to health by reducing tobacco
demand through the use of taxation, non-taxation,
and control on tobacco and its products with
emphasis placed on information disclosure and
packaging or labeling, broader public awareness on
tobacco and its derivative products, advertisement
and promotion or sponsor, the war against illicit
tobacco and its products trade, environmental
protection and producer liabilities, [6].
It was discovered that 12 countries considered to
be members of both WHO and UN as well as 1
country, Liechtenstein, which is just a member of
the UN are not parties to the FCTC. This is based on
their argument to protect the domestic tobacco
market, maintain income sources for local workers
in tobacco industries, sustain the significant
contribution of tobacco to domestic economic
sources, and their doubt on the prospect of tobacco
regulation when their countries are FCTC parties.
Countries that do not agree to be bound by any
international documents usually have domestic
regulations to solve similar issues but it was
discovered, in this case, that those that did not agree
to be part of the FCTC do not automatically have a
domestic regulatory system to manage and control
tobacco matters.
This research is different than to the previous
research, first, [7], observed on which focuses on
the need to be parties to the FCTC and its
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implication of the agreement on the member-states,
and second, only taking their research into
regulatory systems of the countries belonging to the
FCTC parties based on national economic and
institutional aspects, [8]. This paper has differences
from other research, especially in relation to tobacco
control based on developing countries' practice with
an in-depth observance of human rights and policy
perspectives, especially interaction between the
legislative, executive, and judiciary branches of a
regulatory state with each of their legal products
including the legislation, policy or rule and judicial
decision respectively analyzed hypothetically to
determine legal variable and political variable
relations. Regulations have the ability to cause a
social change and fundamental paradigm shift for
any problematic issues, [9], and this means this
framework can be used as the qualitative analysis of
the regulative ability of countries that do not belong
to FCTC regarding tobacco management and control
in accordance with human rights aspects.
The remaining parts of this research aim to
observe human rights and policy perspectives on
tobacco control practices in Indonesia. Based on
human rights perspectives, this article focuses on the
right to health, the right to a good environment, and
the right to adequate living standards or economic
access according to any of Indonesia’s
Constitutional Court decisions. Moreover, based on
policy perspective, legal policy dynamics that
observed roots cause no comprehensive rule
framework on tobacco control in Indonesia that
correlated with democracy, state apparatus abilities
as well as the exhaustion of local remedies in legal
enforcement and judicial decision in the tobacco
control regulatory system of Indonesia.
This article has importance to deliver prospective
context, especially to interest parties including the
government to guarantee and fulfill human rights on
tobacco control, especially to ensure the right to
health, the right to a good environment, and the
right to adequate living standard or economic access
into a comprehensive law concerning tobacco
control on a national level.
2 Method
Micro-legal research approaches were applied to the
legal-political context in addition to the qualitative
method used in this research. It can also be
embedded in one system associated with the
arrangements and alteration based on substantial
gain and political institutions performing their
function within a governance system and this is the
reason it was applied in this context to compare
domestic law and the regulatory system, [10]. It
focused on comparing FCTC signatory or non-
signatory states, WHO members or non-members,
and their classification based on democracy and rule
of law. The recent data retrieved from WHO
showed that the organization has 194 members but
this research compares Argentina, Cuba, Dominican
Republic, Eritrea, Haiti, Indonesia, Malawi,
Morocco, Monaco, Somalia, South Sudan,
Switzerland, and the United States of America as
well as 1 non-WHO member, Liechtenstein. The
comparison was further narrowed to the Asia region
represented by Indonesia which is non-signatory to
FCTC. The two countries are both considered
developing, [11], and playing prominent roles as a
middle power with major economies in the world.
The system approach was applied to the legal-
political context with emphasis on the concept of
regulatory state with its system analyzed based on
the legal and political variables. These products
strengthen a regulatory state, especially concerning
the balancing of democracy and rule of law with
public demands on any specific issues or matters. In
the context of tobacco control, the regulatory state
directly measures, determines, and regulates or
prevents the impact of tobacco through
enforcement, taxation, education, environmental
health awareness, production, trade, and
management of any potential problem caused by
tobacco, [12].
This approach introduced the concept of
dependent and independent variables such that the
legal aspect was used as the dependent variable in
relation to the legislative process while executive
decision-making directly influenced by the political
aspect was used as the independent variable.
Meanwhile, the political aspect was also used as the
dependent variable concerning the ability of law to
arrange and formulate the political spectrum or
affect the political system while the legal aspect was
used as an independent variable.
This approach was hypothetically used to
determine the interaction between legislation,
policy/decision, and the judicial decision to
determine the ability of the regulatory system to
work based on the mutual interaction between the
legal and political aspects of a regulatory state. This
involves linking regulatory issues and governance to
solve specific issues with the potential to cause
paradigmatic change. It is also to pursue good
regulation with effective and efficient governance or
support from the political class to strengthen the
legal aspects, [13]. Meanwhile, Table 1 shows the
seven elements reflecting the ties between the
political and legal variables of a regulatory state.
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Table 1. Elements of the Tobacco Control
Regulation Based on Political and Legal Variables
Element
Concept and Limitation of the
tobacco control regulation
NRA Institutions
(Element 1)
The regulator institutions have the
power or authority to regulate
tobacco control
Constitutional
Design (Element
2)
Basic laws and norms related to
health, environment, economy, and
any related issues on tobacco
control
General/Specific
Statute (Element
3)
Statutory law, especially legislation
norms, on the tobacco control issue
Executive
Decision/Rule
policy (Element 4)
Executive rules, policies, or beleid
on the tobacco control issue
Judiciary role in
the regulatory
state (Element 5)
The ability of judiciary power to
review problematic norms on
statutory law, rules, policy, or
beleid, and the enforcement of any
wrongful acts, administrative, civil,
or criminal matters related to
tobacco control
Political demands,
political parties,
social-economic
groups, or
stakeholders
(Element 6)
The role of political parties, socio-
political groups, or interest groups
with direct or indirect bargaining
points with a policymaker, rule-
maker, legislature, or judges
concerning tobacco control
Political process/
participation in
regulations
passed/agreed/ann
ulled-revoke
(Element 7)
The substantive and meaningful or
less participation in the process of
formulating regulations on the
tobacco control issue
Source: Analyzed and proposed in combination with the
FCTC
The legal elements of the FCTC as the
international legal frameworks on tobacco
management and control which are formulated
specifically to promote national action, besides
global cooperation, on the countermeasure to the
tobacco epidemic are presented in the following
Table 2 with the focus on the legal and political
aspects.
Table 2. Legal Elements of the FCTC Concerning
Tobacco Control Measurement
Legal Substance on
FCTC
✔Ban tobacco
advertising, promotion,
and sponsorship.
(Article 13)
(Element 6)
✔Government
approval rotation of
health warnings on
tobacco packaging.
(Article 11)
NRA Institutions (Element 1)
General/Specific Statute
(Element 3)
Executive Decision/Rule
policy (Element 4)
✔ Prohibiting any
misleading and
deceptive terms.
(Article 11)
General/Specific Statute
(Element 3)
Executive Decision/Rule
policy (Element 4)
Political demands, political
parties, social-economic
groups, or stakeholders
(Element 6)
✔Protect people from
secondhand smoke and
total ban on indoor
smoking. (Article 8)
General/Specific Statute
(Element 3)
Executive Decision/Rule
policy (Element 4)
Judiciary role in the regulatory
state (Element 5)
✔Tobacco tax
measurement and
further restriction or
ban duty-free tobacco
products sale. (Article
6)
NRA Institutions (Element 1)
General/Specific Statute
(Element 3)
Executive Decision/Rule
policy (Element 4)
✔Require all tobacco
packages and packets.
(Article 15)
Political demands, political
parties, social-economic
groups, or stakeholders
(Element 6)
Judiciary role in the regulatory
state (Element 5)
✔Tobacco cessation
services in health
policy programs.
(Article 14)
NRA Institutions (Element 1)
Constitutional Design
(Element 2)
General/Specific Statute
(Element 3)
Executive Decision/Rule
policy (Element 4)
✔Ban free tobacco
product distribution.
(Article 16.2)
NRA Institutions (Element 1)
General/Specific Statute
(Element 3)
Executive Decision/Rule
policy (Element 4)
Judiciary role in the regulatory
state (Element 5)
✔Mechanism and
focal point on tobacco
control at a national
level. (Article 5)
NRA Institutions (Element 1)
General/Specific Statute
(Element 3)
Executive Decision/Rule
policy (Element 4)
✔Periodical
implementation and
national tobacco
control strategy,
including plans review.
(Article 5.1)
NRA Institutions (Element 1)
General/Specific Statute
(Element 3)
Executive Decision/Rule
policy (Element 4)
✔Public health policy
prevents pressure or
Constitutional Design
(Element 2)
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intervention of tobacco
industry influence.
(Article 5.3)
✔Promote the
participation of
unaffiliated non-
governmental
organizations in the
development and
tobacco control
programs. (Article 12
(e))
Source: Analyzed and proposed in combination with the
FCTC, [14].
The qualitative approach applied focused on the
collection, classification, observation, and analysis
of empirical legal facts to justify research findings,
[15]. It was also related to the social facts and
evidence developed with argumentative descriptive
claims that have no relation with numerical data but
focus on legal facts and qualitative data sources.
3 The Regulatory System Observance
on Tobacco Control in Indonesia:
Human Rights and Public Policy
Aspects
These narrative results focus on the regulatory
tobacco control system designed through the
combination of the legal and political variables
reflected in the elements of an institution, rule,
political and legal enforcement, and judiciary role
concerning tobacco control. Moreover, tobacco
control has also been explained by other scholars,
besides the WHO FCTC, as a concept not limited to
the reduction of tobacco demands by the public or in
the market alone but related to smoke-free
regulation, a decline in the sale of tobacco to the
young generation, economic issues on the tobacco
market, prevention from illicit trade, tobacco
cessation, health concerns, banning advertisement,
promotion, and sponsor by tobacco industries and
taxation for tobacco and its derivative products,
[16].
Countries usually prioritize welfare when
focused on the development agenda, [17] and this
involves formulating regulations to ensure the
citizens are prosperous by serving as the regulatory
state considering the impact of globalization, free-
market flows, liberalization, privatization, or the
popular regulatory capitalism, [18]. The regulations
can be in the form of both informal and formal rules
which are to be formulated and implemented
through the executive actors, bureaucrats,
legislative, judiciary, and regulatory agencies within
the formal and informal sectors, public and private
sectors, and multilevel regulatory order with hybrid
processes and strategies on social, political, and
economical order, [19]. Moreover, the formulation
stage cannot be protected from public judgments
and this sometimes leads the regulatory agencies
and other actors to develop perceptions,
bureaucratic roles, and presentation strategies, [20].
This implies there is a need to ensure the strategy
and institutional empowerment, [21], align to be
accountable and solve problems associated with the
regulations passed, [22]. It is also important to
acknowledge that the regulatory state with its
system shifts the responsive regulation associated
with citizen participation, combined with
government interventions, and ensures self-
regulation. The state also seeks compliance
persuasively, implements deterrence penalties,
applies full force of law with criminal sanctions, and
revokes permits transparently and systematically,
[23].
Indonesia is also considered the only Asia-
Pacific country that is not a party nor a signatory to
FCTC but a party to ICESCR, CEDAW, and CRC
with a focus on deliberating on different approaches
to tobacco control. The pace of the country is
evolutionary but its regulatory system is focused on
broadening tobacco countermeasures and control.
This is necessary because tobacco industries have
been existing since the Dutch Indies era and play a
significant role in the exploitation and
commercialization of tobacco as the economic
commodity for both the industries and the colonial
government. This trend continued for decades,
especially with minor efforts shown by previous
regimes on tobacco control regulations.
The legal products on tobacco control are
separated from the norms in national regulations,
thereby, reflecting the rivalry between issues related
to the economy and health in the process of
discussing tobacco control. Indonesia also has
several big tobacco industries with soft power and
abilities to fuel the national economic pocket, [24],
due to their widespread influence and campaigns, a
different approach to assist education, the creation
of local job fields, and the application of different
pragmatic methods to ensure its existence and role
in the economy as observed in Indonesia.
Indonesia's regulatory system has norms
designed for health rights in line with the UDHR
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principles and other human rights instruments as
reflected in Article 28I Par. (3) and Article 33 Par.
(4) of the 1945 Indonesian Constitution after the
second amendment in 2000 is specifically
formulated to regulate the rights to health and
economic activities towards fulfilling the green
economic principles. The Basic Law norms, Law
Number 39 of 1999, also recognize the right to
health as the fundamental issue to ensure
development in the country, [25]. Furthermore, the
comprehensive health law passed in 2009 in the
form of Law on Health (Law Number 36 of 2009)
has minor provisions on tobacco control to
separately regulate advertising, promotion, and
sponsorship of tobacco products, [26], smoke-free
places, and packaging and labeling of smoked
tobacco products, [27]. Meanwhile, efforts have
been made by stakeholders for decades to prevent a
specific bill and other regulations on tobacco control
as indicated by the failure of bills concerning
Comprehensive Tobacco Control and the
denouncement by the Parliament in the 2004-2009
and 2015-2016 periods, respectively.
In recent years, international reviews on human
rights implementation in Indonesia have criticized
the lack of regulatory institutions to
countermeasures and combat the widespread
tobacco issues in the country. Some specific rules
have, however, been enacted such as the
Government Regulation Number 109 of 2012 which
revokes previous Government Regulation Number
81 of 1999, 38 of 2000, and 19 of 2003 and focuses
on restricting the use of tobacco and its derivative
products, advertisement, promotion, and sponsor
from tobacco industries as well as Law Number 32
of 2002 on Broadcasting, Law Number 40 of 1999
on Press, and Law Number 33 of 2009 on Film, and
health warnings on package and label of tobacco
products. Meanwhile, the regulator under the
Ministry of Health is using soft power despite the
decree of the Minister of Health Regulation Number
28 of 2013 and 56 of 2017 which contains further
pressure on health warnings for packages and labels
of tobacco products. It is also important to
acknowledge that a strong staunch was implemented
by the Ministries of Health and Home Affairs
through the issuance of a Joint Regulation Number
188/MENKES/PB/I/2011 and 7 of 2011 on the
Guidelines for Non-Smoking Areas to implement
smoke-free areas in each region.
Moreover, the Ministry of Trade restricted e-
cigarettes in 2017, the Ministry of Finance provided
further taxation on tobacco products in 2015 and
2019 through a Minister Regulation, and finally,
implement strong efforts to recover the national
economy using the fiscal instrument, [28], by
lobbying political factions and government
representatives to pass Law Number 7 of 2021 on
Harmonization of Taxation Regulation, [29]. The
regulatory system in the country is observed to be
soft in regulating tobacco control and this can be
associated with the pressure from the international
community and NGOs on the one hand and tobacco
industries and their market, [30], on another hand.
Therefore, the regulators are not definitive in issuing
any Ministerial Regulation to restrict tobacco and
control its products, [31].
The Reformasi recently launched after Soeharto
stepped down from power, [32], which led to the
establishment of the Constitutional Court has
significantly strengthened rule of law and
democracy under the Indonesian Constitution, [33].
Moreover, the Constitutional Court has received an
application to review Law on Broadcasting, Law on
Press, and Law on Health nine times with a focus on
the control of tobacco and its products, and 7 cases
were rejected or failed to be upheld by niet van
ontvankelijk/ between 2009 and 2014.
These include the Constitutional Court Decision
Number 6/PUU-VII/2009 on the constitutional
review of Law on Broadcasting and Law on Press
rejected by the Constitutional Court on 10
September 2009, Number 19/PUU-VIII/2010 on
constitutional review of Law on Heath rejected for
all petitions on 1 November 2011, Number 55/PUU-
IX/2011 on the constitutional review of Law on
Health declared niet van ontvankelijk on 17 January
2012, Number 66/PUU-X/2012 on the constitutional
review of Law on Health rejected and declared niet
van ontvankelijk on 18 September 2012, Number
24/PUU-X/2012 on the constitutional review of Law
on Health declared niet van ontvankelijk on 18
September 2012, Number 64/PUU-XI/2013 on the
constitutional review of Law on Regional Taxation
and Retribution for tobacco taxes rejected on 19
May 2014, and Number 71/PUU-XI/2013 on the
constitutional review of Law on Broadcasting and
Press for tobacco taxes rejected on 9 October 2014.
There are, however, two monumental
Constitutional Court Decisions that strongly ensure
rights to health and placement of warnings on labels
and packages of tobacco products (including
cigarettes). The first decision was Number 34/PUU-
VIII/2010 which granted protection for the tobacco
workers by showing full concern for the obligation
of health warnings on tobacco products that seem
discriminatory to their work as well as the
declaration of the graphical warning requirement to
be part of the constitutional review on Articles 113-
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114 and 199 in the Law on Health granted on 1
November 2011.
Constitutional Court Decision Number 57/PUU-
IX/2011 provided a contrasting opinion to the first
decision by focusing on the right to health as stated
in the constitutional review of Article 115 in the
Law on Health. The petitioners applied the
constitutionality issue on no-smoking areas and zero
second-hand smoke based on the uncertainty
phrases “can” and “may” used in Article 115 of the
Law on Health which was declared unconstitutional
and no longer have legally binding force. The
decision also proposed that no-smoking areas should
be implemented within legal certainty as confirmed
in the final decision on 17 April 2012.
4 Relations between Human Rights
and Public Policy Aspects on Tobacco
Control in Indonesia
These related elements cannot be separately and
independently analyzed as single elements in this
research and this is due to the previous explanation
that the inseparable relations between legal and
political aspects caused interrelations between the
two variables in tobacco control processes.
Moreover, the seven proposed elements were
scrutinized into four main pillars of regulatory
system flows within the legal-political perspective.
These were projected to be used as the basic
framework to determine the interaction between the
legislative, executive, and judiciary of a regulatory
state in relation to the special case of tobacco
control. Table 3 shows the regulatory system for
tobacco control issues in Indonesia.
Table 3. The Interaction between Main Pillar
Elements and Sub-Elements that reflect Legal and
Political dynamics on the tobacco control regulatory
system in Indonesia
Com
pare
d
State
s
Compared Elements
Main
Pillar
Elem
ent:
Instit
ution
s
Main Pillar
Element: Rule
Main
Pillar
Eleme
nt:
Judici
ary
Enfor
cemen
t
Main Pillar
Element:
Political
Ability
Elem
ent 1
Ele
me
nt 2
Ele
me
nt 3
Ele
me
nt 4
Eleme
nt 5
Elem
ent 6
Ele
me
nt 7
Indon
esia
Wide-
sprea
d
Un-
spec
ific
nor
ms
Un-
spec
ific
nor
ms
Spe
cific
nor
ms
Moder
ate
role
Stron
g
interf
erenc
e
Part
ially
Source: Proposed and analyzed by the Researcher
Note:
Element 1 - NRA Institutions: Single or Widespread
Element 2 - Constitutional Design, Element Statute, and
Element Rule policy: Specific or Unspecific
Element 3- Political demands: Weak, Moderate, or
Strong interference
Element 4- Political process and participation: Absolute,
Partially, or Full.
Element 5- Judiciary role: Weak, Moderate, or Strong
role.
The table shows diverse regulatory institutions
with special competencies in tobacco control and
these include the Ministries of Health, Economy,
Finance, and Home Affairs, regional government,
and specifically authorized institutions such as the
Press Censorship Bureau, Broadcasting Bureau, and
Taxation Agency working on different issues
including the economy, [34], health, environment,
public order and fiscal monetary issues on tobacco
control. The variations in the interests on tobacco
countermeasures and its control were observed
several times in Argentina but there is no specific
arrangement in the constitutional design of both
countries as indicated by the absence of adequate
norms on sensitive-tobacco issues while there are
diverse Laws and regulations passed by the
Parliament and executive authorities to restrict the
use of tobacco and its products.
It is interesting to note that Indonesia partially
conduct broader political participation in the process
of formulating regulations, [35]. In Indonesia, big
tobacco industries have been trying to use soft
power to increase economic income by recruiting
more local workers, spending their funds on
different educational programs for social interest,
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and approaching politicians, legislatures, or
executive members, to provide ‘haven fields’ for
tobacco industries in the country. Moreover, the
voice of NGOs and other parties are also heard and
considered by the government and regulators. This
shows that both countries are faced with a similar
problem related to the strong pressure from tobacco
industries concerning the tobacco control regulatory
framework.
In Indonesia, the cases related to tobacco were
not challenged from ordinary to Supreme Court as
indicated by the lawsuits from NGOs or applicants
in civil matters as well as criminal cases on tobacco,
[36]. There were, however, mixed reactions to the
Constitutional Court decisions observed to be
protecting the tobacco industry, [37], in some such
as the issue of advertisement and the workers' status
including its rights as well as the need to strengthen
and defend the taxation policy introduced by
regulators and the defense provided for the health
aspect in connection to the certainty of free-smoke
areas and the stoppage of secondhand-smoke, [38].
Fig. 1: Interaction between Institutions, Rule,
Political Ability, Legal Enforcement, and Judiciary
Source: Proposed and analyzed by the Researcher.
It was discovered that Indonesia has good rule
and enforcement strategies in recent years but strong
pressure has been evolving from tobacco industries
and markets over several decades on the progress of
their tobacco control regulatory systems, [39].
Moreover, the interest and perception of tobacco
control issues of their institutions differ as indicated
by the fact that Indonesia has been showing an
economic interest rather than a comprehensive
approach to restrict tobacco use for many years.
Meanwhile, the institutions have been recently
pressured through international legal documents
with direct or indirect correlation to tobacco control
on health and economy such as ICESCR, UDHR,
CEDAW, CRC, and GATT-WTO Agreement
(including TRIPS) guiding the countries to
implement strict measures on tobacco control.
5 Conclusion
Indonesia is one of the few countries in the world
that does not belongs to FCTC parties because they
are upper-middle-income countries using tobacco as
one of the major commodities to develop their
economies, and GDP, and employ local workers
despite their prioritization of health in line with their
participation in several international regimes
requiring domestic implementation of tobacco
control directly or indirectly. It was discovered that
both countries have a quite strong judiciary role and
legal enforcement but several policies were
observed to be neutral to cases related to tobacco
industries while some verdicts or judgments
strongly supported health concerns and reduction in
tobacco consumption. There are also strong
pressures from political or interest groups
concerning rules that cannot successfully ban and
reduce tobacco consumption as well as its broader
impact on any spheres. This is due to the different
interests of the institutions including the legislature
and regulatory aspect of the executive branches to
formulate and pass strong rules to ensure
comprehensive reduction of tobacco in all aspects.
A hypothetical relationship between the
institution, rule, political ability, and judiciary body
and its enforcement considered the four main pillars
of the tobacco control regulatory system was
proposed. It was discovered that legal and political
variables are interdependent in the process of
formulating regulations to be used as effective tools
to govern tobacco control. The findings also showed
that Indonesia has good rules and judiciary and
enforcement but is weakened by strong pressure
from the political aspect which further led to weak
institutions despite the improvement recorded in
recent years in controlling tobacco use and its
impact.
This article also intends to propose ideas on
prospective contexts, there is a need to arrange a
comprehensive and specific law concerning tobacco
control in Indonesia.
Institutions
Political
Ability
Legal enforcement
and judiciary role
Rule
Worse
Good
Worse
Good
Good
Worse rule
Worse political
Worse institutions
Worse enforcement
Good rule
Worse political
Worse institutions
Good enforcement
Worse rule
Good political
Good institutions
Worse enforcement
Good rule
Good political
Good institutions
Good enforcement
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Acknowledgement:
Sincere gratitude was delivered to the Doctoral of
Law Program, Udayana University for any
assistance that was provided related to research
sources and article improvement. Many thanks are
also delivered to the proofreader for their efforts to
ensure this article’s language clarity and
grammatical. Also, sincere gratitude to the Editorial
Board and anonymous peer reviewers for insightful
comments on this article's improvement.
References:
[1] Mc Inerney, T.F., The WHO FCTC and global
governance: effects and implications for future
global public health instruments, Tobacco
Control, 28(1), 2019, DOI:
10.1136/tobaccocontrol-2018-054358, s89-s93.
[2] McIntyre, O., Transnational environmental
regulation and the normativisation of global
environmental governance standards The
promise of order from chaos?, Journal of
Property, Planning, and Environmental Law,
10(2), 2018, DOI 10.1108/JPPEL-01-2018-
0003, 92-112.
[3] Garne, D., Watson, M., Chapman, S. & Byrne,
F., Environmental tobacco smoke research
published in the journal Indoor and Built
Environment and associations with the tobacco
industry, The Lancet, 365(1), 2005, pp. 804,
807-808.
[4] Brown, G. (ed.), The Universal Declaration of
Human Rights in the 21st Century: A Living
Document in a Changing World, Open Book
Publishers, Cambridge, UK, DOI: http://dx.doi.
org/10.11647/OBP.0091, 55-56, 63-70, 2016.
[5] Danishevskiy, K. & McKee, M., Tobacco: a
product like any other? Health Economics,
Policy, and Law, 6(3), 2011, DOI:
10.1017/S1744133111000053, 265–272.
[6] Zaatari, G.S. & Bazzi, A, Impact of the WHO
FCTC on non-cigarette tobacco products,
Tobacco Control, 28(1), 2019, DOI:
10.1136/tobaccocontrol-2018-054346, s104–
s112.
[7] Gruszczynski, L. & Melillo, M., The FCTC
dilemma on heated tobacco products,
Globalization and Health, 16(1), 2020, DOI:
https://doi.org/10.1186/s12992-020-00596-x,
1-14.
[8] Patay, D., Friel, S., Schram, A. & Sell, S., How
do interests, ideas, and institutions affect
multisectoral governance? The case of tobacco
governance in two Pacific small island
developing states, Regulation & Governance,
2022, DOI: 10.1111/rego.12458, 1-15.
[9] Braithwaite, J., Coglianese, C., & Levi-Faur,
D., Change and challenge in regulation and
governance, Regulation & Governance, 2(3),
2008, DOI: 10.1111/j.1748-
5991.2008.00049.x, 381–382.
[10] Hermanto, B. (2022). Deliberate legislative
reforms to improve the legislation quality in
developing countries: case of Indonesia. The
Theory and Practice of Legislation, 1-31.
[11] Lee, Y.S., ‘General Theory of Law and
Development’, 50(3), 2017, Cornell
International Law Journal 415 at 428–430.
[12] Givel, M., Researching State Tobacco
Policymaking: Issues, Data Sources, and
Methods, State Politics & Policy Quarterly,
6(3), 2006, pp. 339-340.
[13] Braithwaite, J., Coglianese, C., & Levi-Faur,
D., Can regulation and governance make a
difference? Regulation & Governance, 1(1),
2007, DOI: 10.1111/j.1748-
5991.2007.00006.x, 4-6.
[14] The Framework Convention Alliance for
Tobacco Control, A Guide to Domestic
Implementation of the Framework Convention
on Tobacco Control (FCTC), Framework
Convention Alliance (FCA), Geneva,
Switzerland, 2006.
[15] Linos, K. & Carlson, M., Qualitative Methods
for Law Review Writing, The University of
Chicago Law Review, 84(1), 2017, 213 at 218–
219.
[16] Gostin, L.O., Global Regulatory Strategies for
Tobacco Control, Journal of American Medical
Association, 298(17), 2007, 2057-2059.
[17] Koop, C. & Lodge, M., What is regulation? An
interdisciplinary concept analysis, Regulation
& Governance, 11(1), 2017, DOI:
https://doi.org/10.1111/rego.12094, 95-108.
[18] Benish, A. & Levi-Faur, D., ‘The Expansion of
Regulation in Welfare Governance’ The Annals
of American Academy of Political and Social
Sciences, 691(3), 2020, DOI:
10.1177/0002716220949230, 17 at 21.
[19] Kosti, N., Levi-Faur, D. & Mor, G., Legislation
and regulation: three analytical distinctions,
The Theory and Practice of Legislation, 7(3),
2019, DOI: 10.1080/20508840.2019.1736369,
169-178.
[20] Bach, T., Jugl, M., Köhler, D. & Wegrich, K.,
Regulatory agencies, reputational threats, and
communicative responses, Regulation &
Governance, 2021, DOI: 10.1111/rego.12421,
1-16.
WSEAS TRANSACTIONS on ENVIRONMENT and DEVELOPMENT
DOI: 10.37394/232015.2023.19.35
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E-ISSN: 2224-3496
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[21] Erikse, A., Political values in independent
agencies, Regulation & Governance, 15(4),
2021, DOI: 10.1111/rego.12299, 785–799.
[22] Haines, F. & Macdonald, K., Nonjudicial
business regulation and community access to
remedy, Regulation & Governance, 14(4),
2020, DOI: 10.1111/rego.12279, 840-860.
[23] van der Heijden, J., Why meta-research matters
to regulation and governance scholarship: An
illustrative evidence synthesis of responsive
regulation research, Regulation & Governance,
15(s1), 2021, DOI: 10.1111/rego.12378, S123–
S142.
[24] Barber, S., Adioetomo, S.M., Ahsan, A. &
Setyonaluri, D., Tobacco Economics in
Indonesia. Paris: International Union against
Tuberculosis and Lung Disease, 2008, 1-90.
[25] Collin, J., Tobacco control, global health
policy and development: towards policy
coherence in global governance, Tobacco
Control, 21(2), 2012, DOI:
10.1136/tobaccocontrol-2011-050418, 274-
280.
[26] Henriksen, L., Comprehensive tobacco
marketing restrictions: promotion, packaging,
price and place, Tobacco Control, 21(2), 2012,
DOI: 10.1136/tobaccocontrol-2011-050416,
147-153.
[27] Pawitan, J.A., Tobacco control policy in
Indonesia, Medical Journal of Indonesia,
19(4), 2010, DOI: 10.13181/mji.v19i4.551, 1-
2.
[28] Directorate General of Disease Prevention and
Control Ministry of Health, Policy Paper
Higher Tobacco Taxes for A Healthier
Indonesia, Jakarta: Ministry of Health of the
Republic of Indonesia, 1-23, 2018.
[29] Bagus Hermanto and Nyoman Mas Aryani,
2022, Omnibus legislation as a tool of
legislative reform by developing countries:
Indonesia, Turkey and Serbia practice, The
Theory and Practice of Legislation, 9(3), DOI:
https://doi.org/10.1080/20508840.2022.202716
2, pp. 425-450.
[30] Tandilittin, H. & Luetge, C., Civil Society and
Tobacco Control in Indonesia: The Last Resort,
The Open Ethics Journal, 7(1), 2013, 11-18.
[31] Astuti, P.A.S., Assunta, M. & Freeman, B.,
Why is tobacco control progress in Indonesia
stalled? - a qualitative analysis of interviews
with tobacco control experts, BMC Public
Health, 20(4), 2020, DOI:
https://doi.org/10.1186/s12889-020-08640-6,
pp. 527-538.
[32] Anggono, B.D. & Wahanisa, R. "Corruption
Prevention in Legislative Drafting in
Indonesia," WSEAS Transactions on
Environment and Development, vol. 18, pp.
172-181, 2022.
[33] Yusa, I.G., Hermanto, B. & Aryani, N.M., No-
Spouse Employment and the Problem of the
Constitutional Court of Indonesia, Journal of
Advanced Research in Law and Economics, 11
(1(47) Spring), 2020, DOI:
https://doi.org/10.14505//jarle.v11.1(47).26,
pp. 214-226.
[34] Chaloupka, F., Straif, K. & Leon, M.E.,
Effectiveness of tax and price policies in
tobacco control, Tobacco Control, 20(3), 2010,
DOI: 10.1136/tc.2010.039982, pp. 235-243.
[35] Gray, G. & van Rooij, B., Regulatory
disempowerment: How enabling and
controlling forms of power to obstruct citizen-
based regulation, Regulation & Governance,
15(3), 2021, DOI: 10.1111/rego.12328, pp.
800–821.
[36] Reddy, K.S., Yadav, A., Arora, M. & Nazar,
G.P, Integrating tobacco control into health and
development agendas, Tobacco Control, 21(2),
2012, DOI: 10.1136/tobaccocontrol-2011-
050419, 281-286.
[37] Mackay, J., Ritthiphakdee, B. & Reddy, K.S.,
Tobacco control in Asia, Lancet, 381(4), 2013,
DOI: https://doi.org/10.1016/S0140-
6736(13)60854-5, pp. 1581–1587.
[38] Berliner, D., Ingrams, A. & Piotrowski, S.J.,
Process effects of multistakeholder institutions:
Theory and evidence from the Open
Government Partnership, Regulation &
Governance, 2021, DOI: 10.1111/rego.12430,
pp. 1-19.
[39] Malone, R.E., Grundy, Q, & Bero, L.A.,
Tobacco industry denormalization as a tobacco
control intervention: a review, Tobacco
Control, 21(1), 2012, DOI:
10.1136/tobaccocontrol-2011-050200, pp. 162-
170.
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DOI: 10.37394/232015.2023.19.35
Nyoman Mas Aryani, I Gede Yusa
E-ISSN: 2224-3496
391
Volume 19, 2023
Contribution of Individual Authors to the
Creation of a Scientific Article (Ghostwriting
Policy)
Nyoman Mas Aryani has responsibility and in-depth
contribution to the introductory part, method, first
analysis part, and conclusion of this article.
Gede Yusa is responsible for an in-depth
contribution to the methods and the second analysis
part of this article.
Sources of Funding for Research Presented in a
Scientific Article or Scientific Article Itself
No funding was received for conducting this study.
Conflict of Interest
The authors have no conflicts of interest to declare.
Creative Commons Attribution License 4.0
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This article is published under the terms of the
Creative Commons Attribution License 4.0
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WSEAS TRANSACTIONS on ENVIRONMENT and DEVELOPMENT
DOI: 10.37394/232015.2023.19.35
Nyoman Mas Aryani, I Gede Yusa
E-ISSN: 2224-3496
392
Volume 19, 2023