Bill is an alarming, troubling precedent
Published on: Sunday, September 25, 2022
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Banning those born after 2007 from smoking forever infringes Federal Constitution rights, sweeping powers to Minister and may extend to other products slowly like alcohol.
Having had the chance to peruse the contents of the Bill, it appears that several provisions touch on matters of rights protected by the Federal Constitution in a manner that is deeply troubling for many.
The Bill is best known for its prohibition on individuals born on and after Jan 1, 2007 from purchasing, consuming or using tobacco products and smoking devices, commonly known as the “generational endgame” provisions.
As a matter of legal principle, concerns have been raised on the constitutionality of such provisions.
Lingering questions remain as to whether these provisions that permanently curtail the rights of those born on and after Jan 1, 2007 would survive a challenge of being in breach of Article 8(1) of the Federal Constitution that guarantees equality and equal protection under the law, and Article 5 that secures the right to personal liberty.
It is worth noting that Article 5(1) does not confer automatic and absolute right to personal liberty when in accordance with the law. The Federal Constitution permits deprivation of personal liberty to a reasonable and non-arbitrary extent.
A law that has been passed in Parliament and acted on by the Executive is presumed valid and in line with the Constitution unless and until it is declared otherwise by the court.
Fortunately, there do not seem to be any constitutional conflict between the Bill and Article 5. However, in interpreting Article 8, it is crucial to note that it does not necessarily mean all persons must be treated alike, but rather that the law must operate alike on all persons under like circumstances.
Thus, it is worth asking whether setting an age limit on a permanent prohibition to smoke is discriminatory and against the spirit of Article 8. The State has the right to use age as a criterion for classification under the law, and everyday Malaysians may be familiar with these through the minimum age for marriage, voting, liability of crime and capacity to contract. Although the State does limit these abilities through an age prerequisite, it acts as a temporary gatekeeper as opposed to the Bill’s permanent prohibition with the GEG.
If two adults attempt to purchase and consume tobacco or a smoking device but one is prohibited for life from it on the basis that he was born on or after Jan 1, 2007 while the other is not because he was born on Dec 31, 2006, is this against the principle of equality applying on individuals in “like circumstances”?
The Padang Rengas member of Parliament raised the issue of freedom of choice and discrimination in the Dewan Rakyat during the reading of the Bill.
By introducing a generational endgame, the State will effectively remove freedom of choice from adults who turn 18 years old in 2025. The essence of a generational endgame can be argued to be discriminatory, as it deprives a generation of adults from exercising what they may claim to be their freedom of choice while other adults face no similar deprivation. This differs from when the State regulates consumption of tobacco or smoking through increased taxes and regulations, where the regulations are applied equally on all adults.
So while the State may regulate tobacco and smoking, freedom to do so should be given to the individual.
However, and perhaps more important, are provisions relating to the enforcement of the Bill.
In its current form, it provides broad powers to authorised officers to gain access to any recorded information or data, whether stored in a computer or otherwise; enter any premises, commercial or otherwise, for investigations; searches of baggage and packages; and searches and seizures without warrants.
These provisions raise significant issues of disproportionality and endangering civil liberties. Protection of civil liberties is the cornerstone of the Federal Constitution. Malaysians have seen the slow erosion of these liberties over the years as more and more laws have come into effect allowing enforcement agencies greater powers to invade one’s privacy and intrude into one’s home and person.
The current iteration of the Bill is yet another Act that endangers civil liberties through wide-ranging powers accorded to both the Health Minister and authorised officers.
For example, under Section 26 of the Act, any authorised officer shall have the power to enter any premises at any reasonable time for investigation purposes. If an authorised officer suspects that a residential dwelling is in breach of the Act, they have the authority to enter the premises to investigate.
Additionally, Section 33 permits search and seizure without warrant if the officer has reasonable cause to believe that delay from obtaining a search warrant would affect the investigation.
It is extremely concerning that Malaysian civil liberties are at stake and potentially open to abuse in this Bill. Fortunately, these concerns, among others, were raised by MPs during the second reading of the Bill on Aug 1 and 2.
A new parliamentary select committee was tasked to review the Bill, and its members should take the opportunity to ensure an in-depth review of all provisions to ensure the legislation is strong enough to withstand any legal challenge on its constitutionality and enforcement powers in future.
Of course, the Attorney General’s drafting department may argue that similar provisions are already found in legislation regarding enforcement powers. But as citizens are complaining about abuse of powers by civil servants, perhaps the powers given under this law should be worded more guardedly.
It is noted that since these concerns were raised, the Health Minister has agreed to reduce the standard fines for GEG violations from RM5,000 to RM500, introduce community service sentences as an alternative to fines, removal of body searches for persons below the age of 18 and removal of punishment for GEG-related offences.
These are undoubtedly positive developments. However, no amendments have been announced on the concerns from MPs and the public alike on the disproportionate and sweeping powers accorded to the Health Minister and enforcement officers as mentioned above, nor a comprehensive review of the constitutionality of the GEG law itself.
While the Bill is paved with good intentions, alas, fear of abuse of unchecked powers held by the authorities in Malaysia is a real one. Invasive and sweeping enforcement powers have, unfortunately, left a terrible scar on the collective Malaysian psyche.
Each of these concerns must be given due consideration when reviewing the Bill. One other provision that can raise difficulties in implementation is Section 21, which empowers the Minister to set up a committee if, on advice of his director-general, “there is an acute and critical situation” regarding the use of tobacco, etc.
Even as a lawyer, I do not understand what these words could or are intended to mean in the context of the Bill or the section specifically (unless I missed something). Again, the powers conferred by this provision can be open to abuse.
The draftsmen must try to define these words for the Bill or cite certain situations to guide the Minister and director-general as to when Section 21 is to be invoked. Responsible lawmakers must be cautious to only allow those in authority and other officers such powers that are absolutely necessary to achieve the objectives of the Bill.
While we take our hats off to the Minister for his determination to one day totally eradicate the smoking habit, it must be ensured that in the course of doing so, the generations of tomorrow will not come to regret the decisions we make today.
Tun Zaki Tun Azmi
Kuala Lumpur
(The writer is a barrister who served as the sixth Chief Justice of Malaysia.)
- The views expressed here are the views of the writer Tun Zaki Tun Azmi and do not necessarily reflect those of the Daily Express.
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