Urgent decision needed now

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THE Attorney General’s (AG) recent opinion, issued late at night and over a weekend, on the generational endgame (GEG) provisions contained within the government’s omnibus Bill intended to regulate tobacco products, vape and ecigarettes, represents a serious and disturbing development in the area of public health in Malaysia. The legal opinion issued on Saturday is that the GEG provisions in the Control of Smoking Products for Public Health Bill 2023 can be challenged in court because they contradict Article 8 of the Federal Constitution.

This Bill was worked on closely over the past two years, across two governments and two Parlia-ments, by the Health Ministry, no less than three Parliamentary Special Select Committees (PSSCs), and involved more than a dozen consultation meetings with various experts, and government, non-government, and industry stakeholders. This included senior representatives from the AG’s Chambers (AGC).

Therefore, it is absolutely surprising to hear this position suddenly coming from the AGC.

The concern about whether the GEG provisions contradict Article 8 – which guarantees equality before the law and equal protection of the law – was raised by MPs during the early stages of examining the Bill and in various PSSC deliberations.

Representatives of the Health Ministry or the AGC were asked to respond. There was continued assurance from the legal side that the GEG provisions are on the right side of the law, and specifically, the Federal Constitution.

Was the opinion of the AGC representatives since early 2022, when the Bill was first proposed, and deliberated throughout and into this year, consistent in stating that these provisions were unconstitutional? One only has to check the Hansard, which contains the content of all the meetings.

The current controversy over the GEG provisions is an unwelcome distraction. The proposed Bill is immediately and urgently needed to close a legal loophole created by the Health Minister’s decision on April 1 to remove liquid and gel nicotine from the list of controlled substances scheduled under the Poisons Act 1952.

This has resulted in nicotine vape and ecigarettes being easily accessible, used, sold and manipulated without restraint or regulation. Currently, retailers can even legally sell these nicotine products to children at any nicotine concentration level.

As a result, a nicotine vape epidemic has erupted among Malaysian children, as documented extensively in the media recently. This is not an exaggeration. This is happening today.

The government has two options before it: Either drop or decouple the GEG provisions and table the Bill, or return liquid and gel nicotine into the schedule of controlled substances under the Poisons Act. The government needs to realise the sense of urgency and emerging crisis that it has itself created. If the Bill cannot be tabled regardless of whether it contains the GEG provisions, nicotine used for the production of ecigarettes and vape must be immediately placed back into the poisons schedule list. The government has a moral duty to quickly decide on which action to take.

AZRUL MOHD KHALIB

Founder & chief executive officer

Galen Centre for Health and Social Policy

The Galen Centre is an independent public policy research and advocacy organisation that raises health and social issues through the lens of public policy.