KUALA LUMPUR, Nov 20 – Health Minister Dr Zaliha Mustafa says she was not legally required to justify to the Poisons Board her decision to overrule its unanimous objection against the declassification of liquid nicotine.
In an affidavit filed in the High Court here last November 2, Dr Zaliha said Section 6 of the Poisons Act 1952 does not set the method for the health minister’s required “consultation” with the advisory board, be it through discussions or meetings.
Dr Zaliha said the outcome and decision by the Poisons Board’s 97th meeting last March 29 – two days before she issued the exemption order removing liquid nicotine from the Poisons List – had been informed to her by the senior director of pharmacy services at the Ministry of Health (MOH), as chair of the meeting.
“The Health Minister took note of the outcome of the discussion and decision by the Poisons Board’s 97th meeting before making the disputed decision,” said Dr Zaliha, referring to herself in the third person.
“Nonetheless, the power to make an exemption order is a power belonging to the Health Minister, as provided for in Section 6 of the Poisons Act 1952;
“There is no legal provision that requires the Health Minister to provide any justification or rationale for the decision for the exemption; nor are there provisions mandating further discussions between the Health Minister and the Poisons Board if there is conflict in the discussion.”
She added that as the health minister is not a member of the Poisons Board, which serves to advise the minister, her presence at a Poisons Board meeting was not needed.
Dr Zaliha also reiterated that as minister, she was only required to obtain “consultation” from the Poisons Board, and not its “approval”, to amend the Poisons List of scheduled poisons under the Poisons Act.
Section 6 of the Poisons Act – which empowers the minister to amend the Poisons List “after consultation with the Poisons Board” – has been the subject of the lawsuit by the Malaysian Council for Tobacco Control (MCTC) and two other civil society groups against the health minister over the exemption of liquid nicotine from the Poisons List last March 31.
MCTC said in an affidavit filed last month that it believed Dr Zaliha was the first health minister to reject a Poisons Board decision since the pre-Independence establishment of the advisory board under the Poisons Act.
The provision for the establishment of a Poisons Board to advise the minister was created in a 1956 amendment to the original Poisons Ordinance 1952, based on records found by a CodeBlue search of the Attorney-General’s Chambers (AGC) federal legislation portal.
The same 1956 amendment also added the words, “after consultation with the Poisons Board”, in reference to the minister’s powers to amend the Poisons List; this clause in the current Poisons Act retains the exact same text used in the 1956 amendment.
This means that decisions by the independent Poisons Board at 96 meetings across nearly seven decades had been routinely followed by the health minister from the government of the day – until its 97th meeting on March 29, 2023, when Dr Zaliha under Prime Minister Anwar Ibrahim’s administration rejected the Board’s unanimous objection against the deregulation of liquid nicotine.
The exemption order removing liquid and gel nicotine used in e-cigarettes and vaporisers from the Poisons List enabled the taxation of e-liquids with nicotine that came into effect on April 1.
In fact, the excise duties order for the taxation of nicotine-containing vape liquids was made by Anwar as finance minister on March 29, the same day as the historic 97th meeting by the Poisons Board when its decision was vetoed by a health minister for the first time ever.
Dr Zaliha’s predecessor, Khairy Jamaluddin, posted on Instagram Stories recently that he had never rejected a decision by the Poisons Board during his time as health minister for just over a year from August 2021 to October 2022.
“I would ask clarification from the chairman (Health DG) and urge them to consider different points of views or new evidence, but I found it important to accept their decision as experts. I definitely wouldn’t have overruled them on delisting liquid nicotine for the sake of tax revenues at the expense of lives,” Khairy wrote.
Next December 6, the High Court is set to hear the judicial review application by MCTC, the Malaysian Green Lung Association, and Voice of the Children to nullify the exemption of liquid nicotine from the Poisons List.
The anti-tobacco and child rights groups argue that the declassification effectively legalised the sale of nicotine vape to everyone, including children, as there is currently no legislation regulating e-cigarettes.
Dr Zaliha yesterday “guaranteed” the tabling of the Control of Smoking Products for Public Health Bill 2023 for second reading in the current Dewan Rakyat meeting with just eight days left. She was responding to reporters’ questions about Attorney-General Ahmad Terrirudin Mohd Salleh’s statement last Saturday that the generational end game (GEG) in the bill violates Article 8 of the Federal Constitution that guarantees equality before the law.
The health minister did not specify if the GEG proposal to ban tobacco and vape products for anyone born from 2007 would be decoupled from the bill.
Ahmad Terrirudin’s claim that the Attorney-General’s Chambers (AGC) had always been “consistent” in its stand that the tobacco and vape GEG is unconstitutional – ever since Khairy proposed it in the 2022 tobacco bill to Parliament last year – was supported by Minister in the Prime Minister’s Department (Law and Institutional Reform) Azalina Othman Said.
“The AGC has been consistent in 2022 and also in 2023. Res ipsa loquitur (the fact speaks for itself),” the de facto law minister posted on X, using a Latin phrase in law.
Two other Cabinet members – Youth and Sports Minister Hannah Yeoh and Tourism, Arts and Culture Minister Tiong King Sing – previously denounced the GEG as “unconstitutional” and “unenforceable”, in their response to Khairy accusing them, among other ministers, of blocking the Control of Smoking Products for Public Health Bill.
Khairy posted on Instagram Stories that he would respond to the Attorney-General’s “misleading” statement on his upcoming Keluar Sekejap podcast episode that drops later today.
