Vape: The legal issues

  • A Humble Submission
  • Monday, 11 Jan 2016

THE issue of vaping has been under the spotlight recently. It started with the Health Ministry announcing its intention to ban the use of vaping products. It was then followed by raids on several premises which were selling vape products. Thereafter, several states began to impose vaping “bans”, either on the trade of vape products or the act of vaping itself.

It has been reported that some of these states made their decisions based on a fatwa issued by the National Fatwa Council which declared that vaping is “haram” for Muslims.

I have no intention of questioning the correctness of the fatwa.

What I will bring up, however, is states’ decisions to impose the various bans based on the fatwa.

Under the Federal Constitution, matters relating to Islam are under the jurisdiction of the states. A fatwa issued by the National Fatwa Council is not binding on Muslims and is only advisory in nature.

What is binding on Muslims is a fatwa issued by the state fatwa committee or mufti or the individual states, or for the Federal Territory, the relevant religious authority. Once a fatwa is issued by the relevant body within the state and gazetted, then the fatwa will become binding on Muslims within the particular state.

Expressing an opinion contrary to a gazette state fatwa is a Syariah criminal offence.

It is wrong for state governments to ban the use or sale of vaping products because of the fatwa by the National Fatwa Council. By doing so, the state government would have acted before the relevant body within the state.

What the state government should do is wait for the relevant body within the state to deliberate and come to a decision as such matters.

The other issue is that by imposing a blanket ban on the use or sale of vape products, the state government effectively imposes upon Muslims and more importantly, non-Muslims within the state, a non-binding fatwa. It bears reminding that no fatwa should ever be imposed on non-Muslims.

If the state intends to ban the use or sale of vape products only on Muslims based on the fatwa, it should enact a state Syariah enactment in the State Legislative Assembly instead of through executive action.

State governments would have jurisdiction to regulate or even prohibit the sale of vape products on premises within the state. This is done through local councils by imposing conditions on business licenses on premises in the state, including the condition that no vape products can be sold on the said premises. However, traders should be given sufficient time to clear their stocks before this condition is imposed, especially, on those who have already been given permission prior to this.

Imposing a ban on the use of vape products or vaping itself is outside of the jurisdiction of the states, unless it is done as a state Syariah enactment and binding only on Muslims. Under the Ninth Schedule of the Federal Constitution, health and medicine, drugs and poisons fall within the jurisdiction of the Federation. As such, it is the Federal government, and not a state government, that can execute a ban on the use of vape products.

This issue must be dealt with comprehensively. The various authorities must sit down with other interested parties, including vape traders and users, to come up with policy and regulations on vaping.

There are many issues, legal or otherwise, that have arisen out of the vape controversy. While a conclusive finding on the health implications of vaping has not been published, the concerns by the various governmental bodies and state governments are not unfounded. Yet at the same time, they must tread carefully so as not to overstep their jurisdiction.

> The writer is not a smoker, vaper nor has any personal interest in the vape industry.

> The views expressed are entirely the writer’s own.

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opinion , Syahredzan Johan , vaping , vape , laws , ban


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