KUALA LUMPUR, Nov 19 – Attorney-General Ahmad Terrirudin Mohd Salleh has confirmed that the Attorney-General’s Chambers (AGC) believes the tobacco and vape generational end game (GEG) ban is unconstitutional.
The AG was responding to former health minister Khairy Jamaluddin accusing the AGC of reversing its stance on the GEG and claiming that the government’s legal advisors had signed off on the tobacco bill when he brought it to Parliament last year. Khairy’s remarks were reported by CodeBlue last November 14 and the New Straits Times last November 16.
“The AGC stresses that we have consistently, every time, given our legal views since 2022 that the generational end game provisions in the Control of Smoking Products for Public Health Bill can be challenged in court because it contravenes Article 8 of the Federal Constitution, as those provisions create unequal treatment before the law between a person born before January 1, 2007, and a person born on or after January 1, 2007,” the AG said in a brief statement last night.
CodeBlue broke the story last November 6 that Cabinet had decided to decouple the GEG from the Control of Smoking Products for Public Health Bill, due to the AG’s advice that the proposed ban on tobacco and vape products for anyone born from 2007 throughout their lifetime is unconstitutional.
Khairy – who had proposed the GEG and managed to get the Control of Tobacco Product and Smoking Bill 2022 tabled for second reading last year before the dissolution of the 14th Parliament – subsequently slammed the AGC and accused three ministers, plus “the gaffer” in Cabinet, of blocking the 2023 bill.
Both Youth and Sports Minister Hannah Yeoh and Tourism, Arts and Culture Minister Tiong King Sing, who were among those named by Khairy, then publicly denounced the tobacco and vape GEG as “unconstitutional” and “unenforceable”.
In total, the 2022 and 2023 versions of the tobacco and vape control bill, both of which contain the GEG proposal, had gone through reviews by three parliamentary special select committees (PSSCs) in the 14th and current 15th Parliaments, headed by Bandar Kuching MP Dr Kelvin Yii, Khairy, as well as Kuala Selangor MP Dzulkefly Ahmad respectively.
None of the three PSSCs, whose reports have been tabled in Parliament, conclude that the GEG proposal is unconstitutional.
The PSSC for the 2022 tobacco bill chaired by Khairy as health minister last year, which had AGC representation, explicitly concluded that the GEG was not unconstitutional, in line with the views of legal experts.
The Health PSSC in the current 15th Parliament, chaired by Dzulkefly, similarly proposed that the 2023 tobacco bill, which was tabled for first reading last June, retain the tobacco and vape GEG. Like Khairy’s PSSC, Dzulkefly’s committee also received advice from AGC representatives during its proceedings.
It is highly unusual for the Attorney-General to issue a media statement on a government bill undergoing the legislative process. Government bills are also typically drafted by the AGC themselves.
It is also extremely peculiar for the Attorney-General to now say (publicly) that the AGC considers the GEG to be unconstitutional, given that both bills with the generational tobacco and vape prohibition had been tabled in both the 14th and 15th Parliaments three times.
The government only has eight days left in the current Dewan Rakyat meeting ending on November 30 to table a revised version of the Control of Smoking Products for Public Health Bill.
It is unclear if the bill will have to be re-tabled from scratch as a completely new bill for first reading, if GEG provisions – which have always been highlighted to MPs, the media, and the general public as the cornerstone of the bill – were to be dropped.
Health Minister Dr Zaliha Mustafa has yet to issue a statement on the matter.
