Navigating the GEG clause

THE generational endgame (GEG) clause is essentially a provision in the Control of Smoking Products for Public Health Bill 2023 that seeks to ban tobacco and vape products for anyone born on Jan 1, 2007 and onwards. If the Bill becomes law and comes into force on Jan 1, 2024, anyone who is 17 years of age and younger will be prohibited from using or purchasing tobacco and vape products.

What is the fuss about discrimination under the GEG clause? Well, Article 8(1) of our Federal Constitution states that all persons are equal before the law. In short, the GEG clause is viewed as discriminatory because it creates two different groups based on age.

Some lawyers say otherwise, however. They say that there is a rational basis for creating such age groups.

In simple terms, a law can be made applicable to certain age groups. There must be good reason for doing so, and such reason must have some relation with the object of the law.

In this case, the object of the Bill is to promote public health. I don’t think it can be disputed that smoking is harmful to all regardless of age. It will be difficult to defend the distinction by age as the law is equally applicable to all.

There are laws that distinguish by age groups, but these generally concern the age of capacity or consent. Persons below a certain age are presumed to be incapable of carrying out the act mentioned. This is usually based on data and statistics.

Should the government just go ahead and table the Bill in Parliament and let the court decide if someone challenges it?

I do not think this is a good approach as making laws and enforcing them requires the expenditure of public funds.

Before the government even tables a Bill, it must be confident that the proposed law is constitutional. The “wait and let the court decide” approach will only result in uncertainty and possible waste of public funds.

The answer to the GEG conundrum potentially lies in our Federal Constitution.

Article 130 allows the Yang di-Pertuan Agong (YDPA) to refer any question as to the effect of a provision in the Federal Constitution to the Federal Court.

To my knowledge, this provision has not been used before.

India has a similar provision, and it has been used by the President to refer questions to the Indian Supreme Court on whether certain bills are constitutional before they are tabled in Parliament.

In Malaysia, the Cabinet could advise the YDPA to refer a question on whether the GEG clause violates Article 8(1) of the Federal Constitution.

Given the great public importance of this issue, I think this is a good case to make use of Article 130.

Let the court decide on it before the government takes any further action on the Bill.

SURENDRA ANANTH

Advocate and solicitor

Kuala Lumpur