English philosopher John Stuart Mill, a proponent of classical liberalism, proposed the harm principle to restrict the scope of legal restrictions of personal liberty.
“That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”John Stuart Mill, “On Liberty”
Importantly, Mill, who was also a Member of Parliament, believed that the harm principle only applied to people who could exercise their freedom responsibly. Hence, paternalism over children was acceptable, but not over fully autonomous adults.
He writes further: “If grown persons are to be punished for not taking proper care of themselves, I would rather it were for their own sake, than under pretence of preventing them from impairing their capacity or rendering to society benefits which society does not pretend it has a right to exact.
“Society has had absolute power over them during all the early portion of their existence: it has had the whole period of childhood and nonage in which to try whether it could make them capable of rational conduct in life.”
“Armed not only with all the powers of education, but with the ascendency which the authority of a received opinion always exercises over the minds who are least fitted to judge for themselves…let not society pretend that it needs, besides all this, the power to issue commands and enforce obedience in the personal concerns of individuals, in which, on all principles of justice and policy, the decision ought to rest with those who are to abide the consequences.”John Stuart Mill, “On Liberty”
Mill is essentially saying that the government shouldn’t use non-existent social benefits as an excuse for legal restrictions of personal acts that don’t hurt other people, and that society has the power to educate the next generation through years of childhood, without needing State powers to control undesirable personal behaviour when children become adults. And these adults can very well suffer the consequences of their own bad decisions.
Advocates for the tobacco and vape generational end game (GEG) shouldn’t cite or misquote Mill in their arguments. A ban on smoking – and only for a certain generation, at that – is a violation of one’s personal liberty, plain and simple.
Harms to other people from secondhand smoke are legally curbed via designated smoke-free zones (that apply to everyone, not just those born in certain years), just like how people are prohibited from drunk driving but are not barred from consuming alcohol without subsequently operating a vehicle.
General Principle Of Personal Liberty In Federal Constitution
The minimum legal age for various acts, such as drinking, sex, and marriage, is meant to protect minors who are still under the legal custody of their parent or guardian. But they are free to engage in these acts when they reach adulthood with presumed autonomy and full thinking capacity to understand the consequences of their actions.
The GEG, on the other hand, imposes a lifetime ban on smoking and vaping for anyone born from January 1, 2007, when one is 18 or younger at the time when the law is enforced, right through their adulthood.
So in 2025, when the generational tobacco ban covers 18-year-olds, besides minors, the law will treat two adults of similar ages – the 18-year-old born on January 1, 2007 and the 19-year-old born on December 31, 2006 – over the same act differently, despite both individuals being just a day apart in age.
Constitutional law expert Prof Shad Saleem Faruqi writes that the right to personal liberty under Article 5(1) of the Federal Constitution does not include the right to harm oneself and others and to “put a burden on the national health system” by smoking or vaping.
Of course the Constitution does not spell out each and every act that should be permitted or restricted by law, just like how the right to engage in risky behaviour like bungee-jumping or to have unprotected sex is not explicitly stated in the Constitution. But the principle of personal liberty is there.
The drafters of the Constitution understandably left it to future generations after them to decide which individual acts should be allowed or prohibited, while upholding the general philosophy of personal liberty, instead of treating us like children and being overly prescriptive.
Shad’s reference to illegal narcotics as an example where personal liberty can be curtailed in Malaysia comes closest to the proposed generational ban on tobacco and vape.
However, narcotics listed on the Dangerous Drugs Act are prohibited for every single person in the country – because Malaysia deems these substances to be harmful enough to both the individual and society to merit a complete ban.
But the principle underlying the GEG is peculiar because it purports that cigarettes are only harmful to Generation Z, but not to Generation X or Y.
Not all health-related legislations are necessarily “good” either. In 1933, Nazi Germany passed the “Law for the Prevention of Progeny with Hereditary Diseases” that mandated the forced sterilisation of people with conditions considered hereditary – like learning disabilities, mental illness, blindness, or deafness – as the Third Reich considered people with disabilities to be a burden on society.
This is not to say that the GEG is anything like Nazi practice – only that one must not automatically accept any public health policy without question. People suffering addiction issues, including with illegal narcotics, should be treated as patients, not criminals.
Public Health Care Is A Common Good
I must also caution the good professor and the medical fraternity, in particular, to avoid linking the exercise of personal liberty to the public health care system.
Malaysians do have the right to “burden” the public health care system, so to say, because we pay for government-subsidised health care with our tax ringgit.
The argument that smokers don’t have the right to access public health care because of their (voluntary) habit implies that healthy individuals shouldn’t subsidise the treatment of sick people.
Overweight and obese individuals, who comprise more than half the adult population, are placing a literal burden on Malaysia’s health care system. A new report by the Ministry of Health and the World Health Organization shows that diabetes incurs direct health care costs over three times higher than cancer in Malaysia.
Should Malaysians with normal BMI, especially if they can afford private insurance and health care, then demand that their tax ringgit not be used for the public health care system that is primarily accessed by unhealthier and lower-income people?
This is despicable, to say the least. All taxpayers willingly subsidise public health care, even if the well-off and healthy don’t often use it, because we recognise it as a common good that should benefit even the people who didn’t pay for it but use it the most.
It’s For Your Own Good
I support the GEG because it is for the personal good of the next generation (ie: it’s for your own good) and I believe that the good of health care savings from preventing smoking-related disease outweighs the bad of taking away someone else’s personal liberty. And also because it doesn’t affect me.
Never mind John Stuart Mill; I’m more partial to Immanuel Kant anyway, although the GEG would probably be unethical in the German philosopher’s view too, based on his Categorical Imperative maxim.
Enacting far-reaching legislation on future adults born from 2007 at a time when they are currently aged 15 or younger and did not vote for the lawmakers who will be making the decision for them, and who are not eligible to vote in the 15th general election, makes the GEG undemocratic.
The immorality of the GEG is compounded by the fact that MPs – and everyone else who voted in these legislators – will not be affected by the generational tobacco ban.
Because the Federal Constitution states that one’s personal liberty can be deprived if it is “in accordance with law”, the onus is on MPs to exercise responsibility with their great powers to only pass legislation that follows the spirit of the Constitution.
So how can we GEG advocates make the process more ethical and democratic, given that banning cigarettes and vape for entire generations throughout adulthood is no small violation of their constitutional right to individual freedom?
GEG Referendum For Voters As Young As Six
Rather than just let a council of 13 in the Dewan Rakyat special select committee on the Control of Tobacco Product and Smoking Bill 2022, or even 220 MPs, decide for millions of people, I suggest that Malaysia hold a referendum specifically on the GEG.
This would be similar to the Brexit referendum, or the recent abortion referendum in Kansas that asked voters whether abortion protections should be stripped from the US state constitution. Kansas voters overwhelmingly voted “no”, preventing the state legislature from passing future limits on abortion or from banning the procedure altogether.
There should just be one question on Malaysia’s GEG ballot referendum: “Should anyone born on or from January 1, 2007, be banned from smoking or vaping in Malaysia for the rest of their life, even though smoking or vaping will remain legal for everyone else who was born before that date?”
This special nationwide poll on the GEG, I would argue, should not be limited to voters aged 18 and above, since that defeats the purpose of the referendum, but should be expanded to children aged six years and older.
There should be no need to be a registered voter to participate in the GEG referendum; just show your MyKad and if you’re at least six-years-old, you can cast your vote. Parents can accompany their children to the ballot box.
Why six years old? Prof David Runciman, the head of politics at Cambridge University, argues that the right to vote should be given to children as young as six to tackle the age bias in modern democracy. His radical proposal does have some merit.
Public policy and legislation that make things worse for the next generation – like climate change, or even state-sanctioned racial discrimination that spurs brain drain and leaves Malaysian society bereft of talent for the future – are all made by older people who won’t live long enough to see the impact of their terrible policies.
Before opponents claim that primary school children are not mature enough to vote in a poll, they should look at today’s politicians who aren’t exactly exemplars of good behaviour or rational decision-makers, with numerous financial scandals that will leave the next generation stuck with huge national debt.
GEG advocates and opponents can explain the referendum in simple language to children and teenagers voting in the special poll:
“The government wants to prevent you from ever picking up smoking. So if you’re caught smoking or vaping, the police will fine you RM500. Or you’ll have to do something yucky that the court tells you to do, like pick up rubbish or something. But I won’t kena anything because the government says I can smoke if I want to, even though Mummy doesn’t smoke anyway. If you think this is not fair, vote ‘no’.”
“The government wants to prevent you from ever picking up smoking because smoking can kill you. Also, it costs a lot of money to make you better if you fall sick from smoking. But the government allows Daddy to smoke because…it’s complicated. Anyway, I know how bad smoking is because Daddy has been smoking since 16; it’s very hard to quit. So just vote ‘yes’.”
Non-Legally Binding Referendum As A Guide For MPs
Malaysia’s GEG referendum should not be legally binding – as those aged six to 16 born from 2007, if this special poll is held next year – would be naturally disadvantaged as a minority group of voters.
The results of the referendum should simply serve as a guide to MPs on whether the majority of Malaysians support or oppose the proposed generational smoking ban, paying particular attention to how the GEG group voted. Special voting streams can be set up for voters from the GEG group.
This referendum will only focus on the generational tobacco and vape ban. Legislators can simply decouple the GEG from the Control of Tobacco Product and Smoking Bill if so mandated by the will of the people, while implementing other tobacco control measures like plain packaging or a point-of-sale display ban.
If GEG advocates are confident about public support, they should have no problem supporting a referendum. There’s no need to rush passing the tobacco control law either, since the GEG is only proposed to come into effect in 2025.
A referendum would also serve as a shortcut in raising public awareness about the GEG and the tobacco control bill.
Critics should not dismiss holding a referendum on an important issue like tobacco control on the basis that the poll is a waste of money, as democracy is priceless.
If we want to impose a lifetime smoking ban on other people, in which we have no skin in the game, the least we could do is allow children and adolescents to have a say in a referendum on their future.
Boo Su-Lyn is CodeBlue editor-in-chief. She is a libertarian, or classical liberal, who believes in minimal state intervention in the economy and socio-political issues.