Government Lawyers Repeatedly Assured Parliament Committees Tobacco GEG Is Constitutional: Galen Centre

Galen Centre says MOH’s legal advisor/ AGC reps were asked in PSSCs about the constitutionality of GEG. “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.”

KUALA LUMPUR, Nov 20 – The Galen Centre for Health and Social Policy today disputed the Attorney-General’s claim that the Attorney-General’s Chambers (AGC) had consistently viewed the tobacco generational end game (GEG) ban as unconstitutional. 

Galen Centre chief executive Azrul Mohd Khalib pointed out that the tobacco and vape control bill containing the GEG provision – which seeks to ban tobacco and vape products for anyone born from 2007 – had been worked on over the past two years, across two governments and Parliaments, by three parliamentary special select committees (PSSCs).

He noted that the three PSSCs – the PSSC on Health, Science and Innovation (chaired by Dr Kelvin Yii) in 2022, the PSSC Studying the Control of Tobacco Products and Smoking Bill in 2022 (chaired by Khairy Jamaluddin), and the PSSC on Health in 2023 (chaired by Kuala Selangor MP Dzulkefly Ahmad) – had conducted more than a dozen consultation meetings with stakeholders, including senior representatives from the AGC.

“Therefore, it is absolutely surprising to hear this firm position suddenly coming from the AG,” Azrul said in a statement today, describing Attorney-General Ahmad Terrirudin Mohd Salleh’s position as a “whiplash moment”.

AG Terrirudin said in a statement last Saturday that the AGC has consistently, since last year, expressed its legal views that the tobacco and vape GEG can be challenged in court because it contravenes Article 8 of the Federal Constitution.

The government’s top legal advisor was responding to Khairy’s remarks – as published in articles by CodeBlue and New Straits Times article – that reported the former health minister’s accusation that the AGC’s “volte face” on the GEG was a “political decision”, claiming that the AGC had signed off on the tobacco bill when he brought it to Parliament last year.

Azrul acknowledged the validity of the question on whether the GEG provisions in the Control of Smoking Products for Public Health Bill 2023 contradict Article 8 of the Federal Constitution that guarantees equality before the law.

“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’s Chambers were asked to respond and answer,” Azrul said.

“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.

“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. 

“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.”

Azrul described the controversy over the tobacco and vape GEG as an “unwelcome distraction”, occurring in the last two weeks of the current Dewan Rakyat meeting, even as the Control of Smoking Products for Public Health Bill has yet to be tabled for second reading.

He stressed that the bill is urgently needed to close a lacuna in the law that permits the legal and unregulated sale of nicotine vape to children, after Health Minister Dr Zaliha Mustafa issued an exemption order last March 31 to remove liquid nicotine from the list of controlled substances scheduled under the Poisons Act 1952.

“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,” Azrul said.

“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.”

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