Kuala Lumpur, 20 November 2023 — The Attorney General’s 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 e-cigarettes, represents a serious and disturbing development in the area of public health in Malaysia.
“This bill was worked on closely over the past two years, across two governments and two parliaments, by the Ministry of Health, no less than three Parliamentary Special Select Committees (PPSC on Health, Science and Innovation in 2022, PSSC Studying the Control of Tobacco Products and Smoking Bill in 2022, and PSSC on Health in 2023), and involved more than a dozen consultation meetings with various experts, government, non-government and industry stakeholders. This included senior representatives from the Attorney General’s Chambers,” Azrul Mohd Khalib, Chief Executive of the Galen Centre for Health & Social Policy pointed out. “Therefore, it is absolutely surprising to hear this firm position suddenly coming from the AG.”
“The question of whether the GEG provisions under the proposed Control of Smoking Products for Public Health Bill 2023 are contradictory to Article 8 of the Federal Constitution guaranteeing equality before the law, and equal protection of the law, is valid. Constitutional protection of the rights to equality and non-discrimination are the cornerstone of human rights. Why pass legislation which could later be deemed unconstitutional and struck down by the courts?”
“This concern was raised by Members of Parliament during the early stages and in various PSSC deliberations. Representatives of either the Ministry of Health’s Legal Advisor or the Attorney General Chambers were asked to respond and answer.”
“If there was any consistency to be had, it was the continued assurance from the legal side that the GEG provisions were on the right side of the law, and specifically the Federal Constitution. Whether they were palatable from a political perspective, was a separate consideration,” said Azrul.
“One does not need to speculate on what was said during these meetings, as they are faithfully captured by the parliamentary Hansard. These transcripts of what was said, discussed and decided, are publicly available online for download from the Parliament Malaysia website,” said Azrul. “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? Check the Hansard.”
“The current and continued controversy over the GEG provisions represents an unwelcome distraction. The proposed Control of Smoking Products for Public Health Bill 2023 is immediately and urgently needed to close a legal loophole or lacuna created by the Health Minister’s decision on 1 April to remove liquid and gel nicotine from the list of controlled substances scheduled under the Poisons Act 1952.”
“This act of self-harm, in absence of any regulation or legislation, has resulted in nicotine vape and e-cigarettes being easily accessible, used, sold and manipulated without restraint or regulation,” emphasised Azrul. “Currently, retailers can even legally sell these nicotine products to children at whatever nicotine concentration. As a result, a nicotine vape epidemic has erupted among Malaysian children which has been 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 put back liquid and gel nicotine into the schedule of controlled substances under the Poisons Act.”
“If the provisions related to the Generational Endgame in the current version of the Bill needs to be dropped in order for the Government to table and Parliament to immediately pass the Control of Smoking Products for Public Health Bill 2023, then this is the price and decision that we have to make, however bitter. I am not happy about it but the Government needs to realise the sense of urgency and emerging crisis that it has itself created,” said Azrul.
“If the Bill cannot be tabled regardless of whether it contains the GEG provisions, nicotine used for the production of e-cigarettes and vape must be immediately placed back into the poisons schedule list.”
“The Government has a moral duty to decide.”