Suhakam Commissioner Deems Delisting Of Liquid Nicotine As ‘Negligent’

Suhakam commissioner Noor Aziah Mohd Awal says the health minister’s decision to delist liquid nicotine is negligent; the Prime Minister and Cabinet ministers can be held liable for misfeasance, based on a 2019 Federal Court ruling.

BANGI, April 20 – Prof Noor Aziah Mohd Awal, a current commissioner of the Human Rights Commission of Malaysia (Suhakam), has criticised Health Minister Dr Zaliha Mustafa’s decision to remove liquid nicotine from the Poisons Act, calling it an act of negligence.

Noor Aziah said she was told that the health minister did not present the issue of delisting liquid and gel nicotine to the Cabinet for discussion before signing the order, indicating a lack of due process in the decision-making.

The law professor at the National University of Malaysia (UKM) argued that in order for the delisting of liquid and gel nicotine to take effect, the health minister should first raise the matter in Parliament for discussion and authorisation before signing the delisting order.

“In legislation, when you pass an Act, at the bottom of the last section, you can state, ‘It is hereby declared that nicotine is taken out of the Poisons Act.’ It can be done in the bill, not excluded while the bill needs to be passed. That should have been done. 

“And for me, Prof Dr Mohamad Haniki Nik Mohamed informed me that if the government is making a decision, they need to bring it to the Cabinet first. To exclude something from the Poisons Act, the decision should be made by Parliament. You cannot simply exclude it without permission from Parliament and without a more comprehensive discussion. 

“I was told that no discussion was carried out, and on the contrary, the Poisons Board itself does not recommend it. I 100 per cent disagree with the minister’s decision,” said Noor Aziah during a roundtable discussion on the Control of Smoking Product for Public Health Bill 2023 and Implementation of the Generation Endgame (GEG) held at Tenera Hotel here on Monday. Dr Mohamad Haniki is chief coordinator of the Certified Smoking Cessation Service Provider (CSCSP) at International Islamic University Malaysia (IIUM).

“Truthfully, to me, that is negligence on the part of the minister of health. Because she is the one who is looking after [the health of the public], and she is also a doctor who should have known all the side effects.”

On March 31, Dr Zaliha exercised her ministerial powers to remove liquid and gel nicotine, used primarily in electronic cigarettes or vape, from the Poisons List of controlled substances to enable taxation in e-liquids without any regulations in place.

The health minister overrode the Poisons Board’s unanimous rejection of the proposal to declassify liquid nicotine. The board is an independent body that was established under the Poisons Act and serves to advise the health minister. 

On April 4, Prime Minister Anwar Ibrahim maintained the government’s commitment to tabling a “new” Control of Smoking Product for Public Health Bill 2023 in the upcoming parliamentary meeting in May – which is scheduled for only 11 days. 

On the basis of collective and personal responsibility, Noor Aziah opined that Dr Zaliha is responsible for the wrongdoing of not discussing the delisting of nicotine in Parliament first before removing it from the Poisons List. 

During the press conference held by members of the roundtable, Prof Dr Cairul Iqbal Mohd Aiman, a professor in pharmaceutics at UKM who was responding to a question about the possibility of the group taking the form of a judicial review against the government if the government does not promptly review the delisting of liquid nicotine, said, “Let’s give the chance for the government to review first, and then we will cross the bridge when we reach there.”

Prime Minister, Health Minister Can Be Brought To Court For Misfeasance 

According to Noor Aziah, a significant ruling was made by the Federal Court in 2019 stating that the Prime Minister and ministers are considered public officers and can be held liable for misfeasance during their tenure in public office.

“I found that the Federal Court has ruled in 2019, in a landmark judgement, that the PM and ministers can be sued for misfeasance in public office. So, if they do something that injures the public, they can be brought to court.”

In the case of Tony Pua Kiam Wee v. Government of Malaysia (2019), a suit was launched by former Opposition MP Tony Pua against former Prime Minister Najib Razak for the common law tort of misfeasance – the misuse of executive or administrative power for the improper and ulterior purposes. 

Justice Nalini Pathmanathan, in delivering the judgement, stated that the tort is meant to protect each citizen’s reasonable expectations that public officers will not intentionally harm them through deliberate and unlawful conduct while exercising public functions.

Bringing public servants who engage in such outrageous conduct to justice is of public interest, and those who act in such a manner should not be allowed to do so without consequences.

Earlier in her speech, while discussing the highly contentious Control of Tobacco Product and Smoking Bill 2022 tabled in Parliament by former Health Minister Khairy Jamaluddin, Noor Aziah touched upon the impact nicotine has on human rights. 

Noor Aziah said that cigarettes and vape negatively impact people’s right to life and health. She highlighted that the 2022 bill aimed to reduce the number of smokers to less than five per cent and has the potential, according to lecturers, to save nearly 27,000 Malaysian citizens who have died from cancer caused by smoking.

She also illustrated how the cost of treating complications arising from smoking eclipses the sin tax collected from cigarettes by RM3.53 billion for the year 2020. 

“Those who supported the 2022 bill did so because its primary objective was to reduce the percentage of smokers to less than five per cent and decrease the burden of treating smoking complications, whether it be conventional cigarettes or electronic [cigarettes]. 

“We have also been informed that the cost of tobacco-related complications was RM6.2 billion in 2020 and has since increased to RM8.8 billion, while the national tax collected is only RM2.67 billion. 

“And, this is the view of a few lecturers, who feel that the bill can save 27,000 Malaysian citizens who have died from cancer [caused by smoking]. Education officers and the Penang Consumer Association Anti-Smoking Activists have also stated that primary school students have started vaping. This is very dangerous. [In fact], the youngest patient reported for vape poisoning was only 3 months old,” said Noor Aziah. 

Noor Aziah also claimed that cigarettes and vape violate the United Nations Convention on the Rights of the Child (UNCRC), which Malaysia has ratified. Specifically, Article 6 of the UNCRC recognises that every child has a right to life, and state parties must ensure, to the maximum extent possible, the survival and development of the child. 

To illustrate how the convention has been breached, Noor Aziah cited a media statement from the Office of the Children’s Commissioner (OCC), expressing concern about a video circulating online showing a two-year-old child vaping. The video depicted an adult man, aged 23, giving an electronic vapouriser to the child, who then took two puffs.

“The OCC asserted that the act of vaping or allowing children to vape is an offence under the Poison Act. Encouraging or providing children with vape is a violation of Section 17 of Act 366, or can be taken as a form of abuse, where the father can be convicted under Section 31(1)(a) [of the Child Act 2001].

“OCC urges the government to ban vaping because it is dangerous to smokers and many people, not to mention children that are in the same area. 

“Whichever children that are at risk of being exposed to vape must be saved by the Department of Social Welfare (JKM), to be raised or cared for until the parents are rehabilitated. 

“So, it is the same story as drugs. If the child’s parents do drugs and are placed in a rehabilitation centre in prison, the child needs to be saved [and] placed under JKM. 

“So, for us vape and cigarettes are the same,” Noor Aziah said.

Section 17 of the Poisons Act stipulates that no poison shall be sold or supplied to anyone under the age of 18, other than for the purposes of the medical treatment of such person. 

Section 31(1)(a) of the Child’s Act 2001, on the other hand, states that if a Court for Children is satisfied that any child brought before it under Section 19 or 25 is in need of care and protection, the Court for Children may order his parent to a bond to exercise proper care and guardianship for a period specified by the Court for Children. 

In conclusion, Noor Aziah said Suhakam’s five recommendations are:

  1. The provisions of the Federal Constitution on personal freedom, freedom of speech and equality do not prohibit or ban (immediately or at the end) the regulation of smoking and e-cigarettes that endanger oneself, others, and society.
  2. Re-examining the provisions which give enforcement powers that are too broad and can affect the people’s civil liberties.
  3. Broaden the awareness and education programmes, primarily amongst children.
  4. Review the provisions for punishment and consider alternative punishments such as reprimands, community service, counselling and reasonable fines.
  5. Consider the harm reduction method that is carried out in other countries. 

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