PETALING JAYA: The generational end-game (GEG) element was removed from the revised anti-smoking bill because such provisions could be deemed as unconstitutional, which could also expose the government to possible lawsuits in future, says lawyer Mohamed Haniff Khatri Abdulla.
He said the Attorney General’s Chambers (AGC) had previously pointed out legal concerns that the GEG provision contradicted Article 8 of the Federal Constitution, where it could be challenged in court due to age discrimination against those born after 2007.
Mohamed Haniff said if the GEG provision is implemented, it will only apply to those born after 2007 and not before that year.
“If you want to create a law that takes effect on those born after 2007, that is discrimination.
“So, in that part, the AGC and the government are correct and I applaud them for being brave to raise that,” he added.
If the government plans to reintroduce GEG provisions in future, Mohamed Haniff said the age limit should be changed to include Malaysians who are not born yet.
“For example, ban smoking for those who are born after 2026 or 2027. Make sure the ban takes effect before the citizen is born.
“Those born before 2006, they are already 17 years old now and they are not subjected to that law, compared with those born after 2007 who are now at a maximum of 16 years old and will be covered by that law.
“So, there is discrimination among Malaysian citizens who are already in existence in the country,” said Mohamed Haniff.
On Nov 18, Attorney General Datuk Ahmad Terrirudin Mohd Salleh said the AGC had since last year given its legal views to the government that the GEG provision could be challenged in court as the ban is unconstitutional.
However, constitutional expert Prof Dr Nik Ahmad Kamal Nik Mahmood said the government is not bound to heed the AGC’s advice, as there is still room to argue the constitutionality of the GEG provisions.
“The government is not bound to accept the AGC’s advice. There is still room to argue against that (unconstitutional label) in the sense that the GEG is important – it is a beneficial solution and therefore, even if it seems discriminatory in terms of age bracket, the argument is that it will benefit the majority of the people.
“That’s only one example, there are many other ways to argue and justify the age element, but the government is not willing to do it and it became uncertain just because the AGC said it is unconstitutional,” he added.
To determine whether the GEG element is indeed unconstitutional, Prof Nik Ahmad Kamal suggested the government allow the courts to make the decision.