[CON] Don’t forget the rights of businesses

*Expansion of smoke-free zones is desirable

On Dec. 8, the enforcement ordinance and regulations of the Health Promotion Act took effect, designating restaurants, bars and coffee shops larger with a seating capacity of 150 or more as smoke-free zones. The ban on smoking will expand to restaurants of 100 or more capacity in 2014 and all restaurants in 2015. Opponents argue that the new restrictions ignore the rights of smokers, while supporters say they simply protect those who don’t light up.

Like alcohol, cigarettes are an indulgence product whose sale is permitted by the government. As long as they are enjoyed moderately, cigarettes can relieve stress and may enhance productivity to a certain extent. In our society, there are precious few ways to relieve stress amid a constant stream of economic and cultural crises. Food indulgences, for instance, are necessary in order to relieve stress in a short period of time and return to business as usual.

However, cigarettes are different from alcohol. Drinking harms the health of the drinker, but smoking can affect the health and lives of other people. The Constitutional Court has found the ban on smoking indoors constitutional. The court recognizes both the right to smoke and the right to be smoke-free, and gives priority to the right to avoid unwanted and potentially harmful secondhand smoke.

Smokers’ rights to smoke cannot be guaranteed if the lives and health of non-smokers exposed are threatened.

Constitutional rights are granted as long as they do not interfere with other people’s rights. In the case of alcohol and cigarettes, they need to be controlled by the government as they pose serious health risks.

But they are different from drugs. Instead of banning alcohol and cigarettes by the law, countries around the world warn people of the harms of excessive smoking and drinking through educational programs and campaigns. Pictures or statements illustrating the negative effects of smoking have been inserted in packaging as a warning.

With the revision of the Health Promotion Act, the smoke-free zone has been expanded to restaurants larger than a certain size. It seems reasonable for the government to actively intervene and regulate smoking for the health of the nonsmokers. I am not a smoker myself, and I have always found smoking in restaurants and bars unpleasant and unfair for nonsmokers.

However, smokers’ rights and the business rights of the restaurant owners need to be carefully considered. As long as a nonsmoker’s right to health is not undermined, we need to consider any alternative that can guarantee smokers’ rights and minimize business losses as a result of the smoke-free designation. In Korean society, it has become natural to craft legislations through standardized ideological debate and political decisions. Unless it is illegal, it is very important in a democratic society to value diversity and find a balance in order to respect the interests of all involved parties.

Restaurants larger than the designated size should be made nonsmoking venues, but if a certain restaurant can create a separate smoking section with a proper ventilation system that does not affect nonsmokers, it could be a reasonable alternative. Of course, these exceptions should be allowed only with proof that nonsmokers do not experience secondhand smoking.

In life and constitutions, there are principles and exceptions. In reality, absolute evil and absolute good are rare. That’s why policies should be made and enforced by taking specific situations into consideration. Applying the smoking ban uniformly without exception may pose a possibility of unconstitutionality.

In fact, the Constitutional Court has ruled that many cases with complete bans were unconstitutional. Prohibition without exception is only possible for crimes. The expansion of the smoke-free zone should balance different values.

Translation by the Korea JoonAng Daily staff.

*The author is a professor of law at Hongik University.
By Jang Yong-geun