Recent Development on Tobacco Control Policy in Indonesia: Analyzing Obstacles Faced by Indonesia in the Ratification of Framework Convention on Tobacco Control

World Health Organization Framework Convention on Tobacco Control (the FCTC) was adopted on 21st May 2003 and came into force on 25th February 2005. Since its adoption, Indonesia has never signed and ratified this Convention. Currently, Indonesia is the fifth largest tobacco market in the world and the third largest cigarrete consumer (WHO data in 2008), thus it is obligatory for Indonesia to obey the minimum standards of tobacco control under the FCTC. There are two problem formulations that will be answered by this writing: first, what are the obstacles faced by Indonesia during the ratificationâ€™s plan of the FCTC? Second, how far the FCTC ratification is effective in protecting public health in Indonesia? This study is normative research by using statute and comparative approaches. Indonesian policy on tobacco control always face with obstacles in the area of politic, economic, and human rights side. Most of the laws are still abstract to support public health in general. Particular researches prove that ratification efforts done by Indonesia would not cause adverse impacts to the economic advantages of tobacco but yet would be able to give effective implementation and legal certainty to protect the public health.


Introduction
The right to health becomes fundamental right to be given by every people in the world. This right is regulated in various international 1 and national instruments.
It means that in global perspective 2 , health right was becoming basic human rights, which should be protected by law and governmental policy.
In Indonesia, health right is also part of constitutional rights. Based on article 28H paragraph 1 of 1945 Constitution stated that every person shall have the right to live in physical and spiritual prosperity, to have a home and to enjoy a good and healthy environment, and shall have the right to obtain medical care. By this law, Indonesian government has an obligation to increase citizen's health standard.
Noting to the fact that smoking was becoming most of Indonesian's society behavior. From 1970 to 2006, tobacco consumption in Indonesia has increased to 33 bilion cigarretes. 3 Smoking prevalencies among male has increased every year, such as 26,9 % in 1995, 31,5% in 2001, and 38,4% in 2004. 4 Another survey done by The Global Youth Survey (GYTS) also stated in the year 2006 approximately 37,3% Indonesian students was reported smoking as a habit and around 30,9% from them declared smoke in the first time at the age of ten years. 5 In 2008, based on WHO data, Indonesia ranked in the fifth largest tobacco market in the world 6 and in the third largest cigarretes consument in the world 7 .
Recent facts about tobacco in Indonesia are very contrast with the government effort to increase people's health standard and care. This study first outlines the legal enforcement of tobacco control in Indonesia. Furthermore, this study also will describe general advantages of Framework Convention on Tobacco Control (the FCTC) 8 ratification particularly for Indonesia. It will then analyse various obstacles of the FCTC ratification in Indonesia. Examples of ratification did by Indonesia will show how far the effective implementation of international obligations into Indonesian domestic law. Finally, this study will make legal conclusion to answer obstacles faced by Indonesia during the plan to bind with the FCTC.

Statement of Problems
There are two problem formulations that will be answered by this writing: first, what are the obstacles faced by Indonesia during the ratification's plan of the FCTC? Second, how far the FCTC ratification is effective in protecting public health in Indonesia?

Research Purpose
This research has two main purposes, such as: first, to deliberate the obstacles faced by Indonesia during the ratification's plan of the FCTC. Second, to analyze the effectivity of the FCTC ratification particularly to protect public health in Indonesia.

Research Method
This study is normative research by using statute and comparative approaches.
The FCTC becomes the key regulation in this research. This research will deeply analyze its core substances and advantages. Moreover, this research also will analyze the existence of Indonesian regulation about tobacco control policy. By analyzing this domestic law, this research then will make comparative condition toward effective implementation of tobacco control policy under the FCTC rezim. Hopefully by this way of research, this study will present the comprehensive legal conclusion to answer the research questions.
Legal materials that support this research consist of primary, secondary, and tertiary research materials. The legal materials are to be collected and presented by descriptive and qualitative analysis.

Minister of Health Regulation No. 28 Year 2013
This regulation is intended to provide guidelines for Tobacco Product industrialists to implement the imprinting of Health Warnings and Health Information on Tobacco Product Packaging. Since its enactment, there was missing health information, which must be imprinted on every item of Tobacco Product Packaging (article 10 paragraph (2) (c)). Beside information on production code, date, month, and year of production, information about expired date and customer service of the tobacco product also must be included in the packaging. Information about the expired date is also part of the obligation under the Law No. 8 Year 1999 about consumer protection.

the Minister of Home Affairs No. 7 Year 2011
This regulation is aimed to provide a reference standard for local governments in determining Non Smoking Areas in order to improve clean and health environment. 13 Studies have shown that the beneficial effects of a smoke-free environment extend to the health of the patrons as well. 14 For example in New York, after passed the similar smoking ban regulation, the air quality in the workplace has dramatically   The FCTC was designed as a compromise solution between a purely recommendatory instrument and a binding convention, so as to engage countries in an "incremental and flexible normative exercise" in a novel area: 26 "Member Nations first adopt a framework convention that calls for international cooperation in realizing broadly stated goals, and, ideally, parties to the convention will conclude separate protocols containing specific measures designed to implement those goals. The main objective of the FCTC is "to protect present and future generations from the devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke by providing a framework for tobacco control measures to be implemented by the state parties at the national, regional and international levels in order to reduce continually and substantially the prevalence of tobacco use and exposure to tobacco smoke". 28

Advantages of the FCTC Ratification
For Indonesia, ratification of the FCTC will give more advantages on tobacco  in different ways, i.e. the FCTC gives a 'margin of appreciation' for state parties implementation. 30 After ratification, Indonesia may implement minimum standard tobacco control under the FCTC by compromising with the national condition. This policy will guarantee the long process to reduce the harmful effects of tobacco products in Indonesia.

Obstacles of the FCTC Ratification in Indonesia
Until now, Indonesia is not yet the parties of the FCTC. Many issues appear on the ratification process of this treaty. In economic side, tobacco industries claimed that ratification would decrease national income from tax and investment. 31 In political side, legislative and some of government agencies have never assertive to establish policy reduction of tobacco use. 32 In human right side, certain groups of society declared that smoking is a part of constitutional right that should be protected. 33 This study will analyse this main issues on the challenges of ratification by following explanation:

Economic Issues
The decline possibility of state income from tobacco industries becomes one of the central issues on the accession of the FCTC. In the economic side, state not only enjoy taxation income but also large-scale of employment, foreign direct investment, and tobacco agriculture. Following Excise tax of cigarretes in Indonesia is still lower than the other developing countries. Most of Indonesia's tobacco excise tax paid by consumers not more than 37% of its price. 35 This percentage is below from the national regulation (57% of the sales price) and global benchmark (70%of the sales price). 36 Low excise levels in the retail selling price, as well as large gaps within regions or between neighbouring countries, have a number of negative effects such as cross-border flows and increasing illicit trade, leading to loss of revenues and damage to public health policies. 37 The FCTC uses price and tax measures as an effective and important means of reducing tobacco consumption. 38 An unpublished study of aggregate data, however, reported that increases in tobacco excise rates in 2001 did not significantly reduce cigarette demand. 39 These two conditions can be used by the Government to increase the tobacco tax at least based on the national regulation to achive highest state income.
State also pays greater costs for cigarettes compared with revenues it receives from the tobacco industry. Research from the World Bank has shown that smoking is an absolute loss for almost the entire country. 40 Income received by the state from the tobacco industry (taxes and so on) may be a large amount, but the direct and indirect losses caused by tobacco consumption are much greater. High costs must be incurred  , 2011, p.11-14. to pay for the healing of diseases caused by smoking, absence from work, loss of productivity and income, premature death, and also make people become poor because they spend longer the money to buy cigarettes. Furthermore, implementing tax policies will generate additional revenues to 6.5 billion USD 41 that cover health care costs for tobacco-related illnesses between 484 million USD to 1.2 billion USD. 42 Even if the increase tax intervene the worse demand of tobacco, based on particular simulation did by Sarah Barber, et.al. show that: "… the increase of tobacco tax rates to double positive impact on the economy. The simulation further find that there are 60 sectors of the economy will get benefit if households minimize their expenditures for tobacco products. This expenditures can be diverted households to consume other goods or for investment. Economic output and household income will also increase, amounting to Rp 335.4 billion and Rp 491.6 billion. Similar simulation also found that increase in cigarette excise up to two times will result in increased employment as much as 281.135 people. This is because agriculture and tobacco industry ranks high in the economy, employment and wages." 43

Political Challenges
Both Indonesian excecutive government and legislative body have different efforts in the FCTC ratification. The government, which leads by Ministry of Health 44 , asked legislative board to support their ratification's initiative to preserve public health. 45 However, most of the members of House of Representative have never assertive to reduce the tobacco use. They use the ordinary reason that the ratification of the FCTC will shut off the domestic cigarette's industry and harm to tobacco farmers.
In fact, this reason was unproven if we learn from the other state practices. Based on data from the world's food agency (FAO) of tobacco production in countries that have ratified the FCTC does not decline. 46 It is also supported by particular research that if farmer want to plant other than tobacco, they will get more economic benefits. 47 Alternative crops that provide equal or greater benefit other than tobacco is the red onions, red chili peppers, and melons for the lowland as well as potatoes and red chili peppers to the highland.  because the right of health actually becomes non-derogable right 53 that should have prior respect. Indonesian government can use the protection of public health as basic consideration to ratify the FCTC.

Examples of Effective Ratification
As a state that is present within the international community, Indonesia has an obligation to respect and implement international agreements that has been ratified.
Practically after ratification, Indonesia will compromise and harmonise its existing law to the international obligations. This adoption process usually resulted effective implementation to solve certain national problems. This paper gives some effective implementation of international treaty ratification in Indonesia, such as: First, Indonesia Narcotics Agency (Badan Narkotika Nasional) as special task force to handle the cases of crime and drug abuse that are increasingly sophisticated.

Conclusion
After all, in terms of health, cigarette is very harmful for both active smoking and passive smoking. As the realization of the right to run the health standards for every citizen, the state has authority to restrict tobacco use because of its addictive.
Tobacco control in Indonesia is still not showing significant results to address health issues. Indonesian policy on tobacco control always face with obstacles in the area of politic, economic, and human rights side. This is in line with the lack integrated and systematic regulations related to the tobacco control in Indonesia. Most of the laws are still abstract to support public health in general.
Ratification of the FCTC will be the only solution for Indonesia to harmonize its domestic policy to the international obligations under the FCTC. The FCTC requires state parties to impose restrictions on tobacco advertising, sponsorship and promotion, and to establish new packaging and labeling for tobacco products. Moreover, specific researches prove and support that ratification efforts to the FCTC would not decrease state financial income, give full legal certainty, and even more protect public right to health. Furthermore, based on previous Indonesian practices show that ratification of particular international treaties effectively solve certain cases by progressive way.
Thus, there is no need to worry for Indonesia to face obstacle's possibilities since tobacco is always endangers human health.