THE Control of Tobacco Product and Smoking Bill 2022, widely known as the Generational Endgame (GEG) Bill, seeks to prevent an entire generation from consuming all forms of tobacco products.
While it is undeniable that the Bill will render positive environmental effects and address health concerns, there is a glaring flaw in it, which runs counter to two constitutional guarantees for the rakyat in the country – Article 5 (Liberty of the Person) and Article 8 (Equality).
Article 5(1) of the Federal Constitution reads: "No person shall be deprived of their life or personal liberty save in accordance with law." From here, Article 5 can be broken down into three separate parts:
(i) No person shall be deprived of his life;
(ii) No person shall be deprived of his personal liberty; and
(iii) A person can be deprived of his life and liberty according to a procedure established by law.
At first glance, the right to life takes on a literal meaning, i.e., the right to exist. However, the Court of Appeal in Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor (1996) 1MLJ 261 has taken a liberal interpretation of life. Gopal Sri Ram JCA (as he then was) ruled as
follows: "I have reached the conclusion that the expression 'life' appearing in Art 5(1) does not refer to mere existence. It incorporates all those facets that are an integral part of life itself and those matters which go to form the quality of life. Of these are the right to seek and be engaged in lawful and gainful employment and to receive those benefits that our society has to offer to its members. It includes the right to live in a reasonably healthy and pollution-free environment."
Nonetheless, the above interpretation begs the following questions: Does this right to life cover the right to health? And if so, to what extent can Parliament legitimately restrict the liberties of citizens in order to serve the common good?
As noted by Professor Shad Saleem Faruqi in "No human right to smoke and vape" (The Star, Aug 8; online at https://bit.ly/3CJvzIp), in gist, there is no human right to smoke or vape due to the harm it causes to the smoker and to others through second-hand smoke.
Respectfully, the author believes that even so, it is plausible to conclude that the GEG Bill contravenes Article 5. Since smoking and/or vaping is a personal act done onto the body by an individual, a person's right to self-determination is violated by Parliament's enforced restriction, irrespective of whether it benefits the society. As such, it is unconstitutional.
In Sivarasa Rasiah v Badan Peguam Malaysia & Anor (2010) 2 MLJ 333, the Federal Court held that “... 'in accordance with law' in Art 5(1) refers to a law that is fair and just and not merely any enacted law however arbitrary or unjust it may be. The question whether an enacted law is arbitrary must be decided upon settled principles that govern the right in Parliament to pass discriminatory laws. So long as the law does not produce any unfair discrimination it must be upheld."
In other words, Parliament may enact laws that contravene fundamental liberties provided that the law does not result in unfair discrimination. Clearly, this principle has not been applied in the drafting of the GEG Bill.
It is here that a discussion of Article 8(1) of the Federal Constitution becomes necessary. Article 8(1) reads: "Everyone is equal before the law and is guaranteed equal legal protection."
Meanwhile, based on its preamble, the GEG Bill is aimed to be an Act that provides for the registration of tobacco products, smoking substance or substitute tobacco products, the control of advertisement, promotion and sponsorship, sale and purchase of tobacco products, smoking substance, substitute tobacco product or smoking device, and the prohibition of smoking of tobacco product or substitute tobacco product and the prohibition of the use of the smoking device, by any person that was born in 2007 onwards and for related matters.
From the wording of the preamble itself, it is clear that if the GEG Bill becomes law, individuals born on or after Jan 1, 2007 will be subjected to discrimination solely on the basis of their birth dates. The existence of such a law would then split people into categories, granting significantly more rights to older adults than the younger ones. What distinguishes an older individual by one year?
At the absolute least, it is pertinent that the opinion of the targeted group is obtained. As the power to enact laws lies in the hands of Parliament, it is submitted that such power must be exercised properly. Compelling a specific generation of individuals to abide by such a prohibition runs contrary to the precept that was mentioned earlier.
Health Minister Khairy Jamaluddin in the Parliamentary Debate Session on Aug 2 said that the restriction imposed on those who were born on or after 2007 in the GEG Bill meets the intelligible differentia requirement and is therefore constitutional.
Respectfully, in Datuk Haji Harun bin Haji Idris v Public Prosecutor (1977) 2 MLJ 155, the Federal Court ruled as follows: "Article 8(1) permits reasonable classification is founded on intelligible differentia having a rational relation or nexus with the policy or object sought to be achieved by the statute or statutory provision in question."
The keynote here is "has rational relation on nexus with the policy object that is sought to be achieved?" That said, in order to pass the test of permissible classification as ruled in the aforementioned case, two conditions must be fulfilled: (i) that the classification must be founded on an intelligible differentia that distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question.
What is necessary is that there must be a nexus between the basis of classification and the object of the Act (in this case, the GEG Bill) under consideration. However, it is our submission that this was not the case here. The GEG Bill has no precedence or evidence of its effectiveness.
This may be seen in nations like Singapore and Denmark, which considered enacting legislation similar to the GEG Bill but ultimately decided against it after conducting a comprehensive appraisal. If this Bill passes, there is a high probability that it will be subjected to judicial review in the near future.
There is also the prospect of providing room for black-market cigarettes or vaping items, which might lead to the establishment of criminal syndicates and, as a result, the feeding of corruption. As pointed out by Yeo Bee Yin, who was minister of Energy, Science, Technology, Environment and Climate Change in the Pakatan Harapan government, some aspects of the GEG Bill appear quite high-handed and need a review: "...with a much higher issue of illicit cigarettes in Malaysia coupled with weaker enforcement capabilities, an earlier start date for the generation ban, and the inclusion of vapes in the ban might spell failure for the GEG."
The GEG Bill must be subjected to a comprehensive review by the Parliamentary Special Select Committee (PSSC) to ensure that its provisions will not impair the fundamental rights of the rakyat as well as to address concerns raised by members of Parliament regarding issues relating to the arbitrary powers given to enforcement officers under Sections 26, 30, 31 and 34.
Further consultations with constitutional experts as well as representatives of the public are crucial to avoid any setbacks once the GEG Bill becomes law. The greatest concern is that the Bill would have an adverse effect on our youth, i.e., encourage them to experiment with tobacco products. This is evident in the existence of current laws that provide harsh punishments, such as on drug abuse, that have failed to stem the menace.
It is therefore submitted that further scrutiny should be made before the Bill is tabled for its second reading this October. Given that the GEG will only take effect from 2025 onwards, there is no reason for Parliament to rush the Bill. In fact, more time should be given to thoroughly review it as the implementation would not only affect our youth but also the country as a whole by setting a dangerous precedent for discriminatory laws to be bulldozed through Parliament without proper studies.
DATUK M. REZA HASSAN
Senior advocate and solicitor
Kuala Lumpur
