KUALA LUMPUR, Nov 21 – Khairy Jamaluddin yesterday rebutted Attorney-General Ahmad Terrirudin Mohd Salleh’s claim that the Attorney-General’s Chambers (AGC) has been consistent in viewing the tobacco generational end game (GEG) as unconstitutional since 2022.
During his Keluar Sekejap podcast episode aired last night, the former health minister cited documented evidence of the AGC’s belief in the constitutionality of the GEG in the tobacco and vape control bill, disproving AG Terrirudin’s two-paragraph statement last Saturday that the AGC has always viewed that the generational ban contravenes Article 8 of the Federal Constitution that guarantees equality before the law.
Khairy referred to the Hansard of a proceeding on August 19 last year by the Parliamentary Special Select Committee (PSSC) to Study the Control of Tobacco Product and Smoking Bill 2022, which he had chaired as health minister, that quoted the Ministry of Health’s (MOH) legal advisor Yang Zaimey Yang Ghazali, who is an AGC officer.
On whether the tobacco bill’s GEG proposal to ban tobacco and vape products for anyone born from January 1, 2007 violated Article 8 of the Federal Constitution, the MOH legal advisor cited the case of Harun Idris in the Federal Court judged by then-Lord President of Malaysia, Mohamed Suffian Hashim.
Yang Zaimey quoted the late chief of the judiciary, who was Lord President from 1974 to 1982, as saying in that case that Article 8, in general, guarantees equality and the right to protection under the law for everyone; “however, the right to equality is not absolute”.
“What does it mean by ‘not absolute’? For the information of members of this meeting, this means that the right to equality has exemptions,” Yang Zaimey told the PSSC.
“A simple example that I can share – a woman and a man committed the same robbery, got arrested, went to trial, and were punished. However, when a sentence is imposed, even though whipping is provided for, we must remember that under the CPC (Criminal Procedure Code), whipping cannot be imposed on women.
“Therefore, this means that there are exemptions to equality.”
The MOH legal advisor explained that the principle behind Article 8 of the Federal Constitution is that “the same law must be applied to people in the same circumstance or group, not that the law must be applied the same to all people regardless of circumstance.”
Yang Zaimey also pointed out that the Child Act, for example, is specifically for children.
The MOH legal advisor further cited the case of Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd in the Federal Court that dealt with the issue of Article 8 of the Federal Constitution.
In this case, according to Yang Zaimey, the top court had ruled that to deal with complex issues arising from diverse relationships between people, the legislative body can choose or classify people who are subject to the operation of a particular law.
“This means that reasonable classification is a conventional approach by the courts in our country to classify that a certain law can be drafted for a specific group of people and that that law must provide equal treatment for that particular group,” he said.
Yang Zaimey also cited case law from two cases – Tan Teck Seng v Suruhanjaya Perkhidmatan Pendidikan in the Court of Appeal and Letitia Bosman v Public Prosecutor in the Federal Court – to argue that the tobacco and vape GEG does not contravene Article 5 of the Federal Constitution that guarantees personal liberty.
“As a conclusion, members of this meeting, the proposal for a provision to prohibit individuals born on or after January 1, 2007 from purchasing and smoking tobacco products and tobacco replacement products does not violate one’s right to life, what more personal liberty, which are guaranteed by Article 5(1) of the Federal Constitution, or the right to equality under the Constitution.”
After Khairy read out passages from the transcript of Yang Zaimey’s remarks at the August 19, 2022 proceeding by the PSSC in the 14th Parliament, the former health minister highlighted the first conclusion of the parliamentary committee in its report: “The Committee agrees that the implementation of the generational end game (GEG) does not contravene the Federal Constitution, in line with views by legal experts.”
“This includes officers from the Attorney-General’s Chambers, including your own officer, Mr Attorney-General,” Khairy said.
The former health minister then launched a “mic drop moment”, naming Pengerang MP Azalina Othman Said as among the members of the PSSC that had concluded the tobacco and vape GEG was not unconstitutional.
“So, Datuk Azalina, you told me, res ipsa loquitor, let the facts speak for themselves. I answer, quod erat demonstrandum, my argument has been proven. And I’ve demolished your Attorney-General’s statement,” Khairy said, using a Latin legal term.
Azalina, who is now the de facto law minister in Prime Minister Anwar Ibrahim’s Cabinet, had used the Latin term in law when she reposted AG Terrirudin’s statement last Saturday in her comment on X (formerly known as Twitter): “The AGC has been consistent in 2022 and also in 2023”.
“This is a political act that is not consistent on the basis of law,” Khairy said.
“When no less than the Attorney-General – it’s signed off by the Attorney-General, not the Attorney-General’s Chambers – makes such misleading statements, I have all the facts; this is publicly available information, I think it’s not fair.”
Former Bangi MP Ong Kian Ming from the DAP, who was a co-host on last night’s Keluar Sekejap episode, pointed out that Terrirudin was a new AG appointed last September. “Maybe the one who gave that view [affirming the constitutionality of the GEG] was the previous Attorney-General.”
Khairy responded that a ministry’s legal advisor, also known as PUU (penasihat undang-undang), is an officer of the “institution” of the AGC.
“They are not officers expressing their personal opinions. That is the cornerstone of the function of your legal advisor. They are AGC officers. It’s not like they come to the committee, then they Google before that and say, ‘okay, this is the case and I’ll give my personal opinion’. They must have cleared it with their superiors,” he said.
“I will give testimony at the parliamentary special select committee, representing the AG’s Chambers as a PUU at the ministry. However, as an officer representing the AGC at the Ministry of Health, I must have received approval and consent from the AGC as an institution because the institution signs off on it.”
Khairy claimed that “every minister is now rushing to hide behind the Attorney-General”.
“I heard that the health minister has already given up; she lost in Cabinet, she couldn’t convince them. Everyone said, ‘KJ also doesn’t need to say anything; this is unconstitutional’,” Khairy alleged.
“Only the courts can determine what is unconstitutional. Do you not have the courage, the ambition, to try something consequential for public health, to try something big? And let the chips fall where they may and take it to the courts if anyone wants to challenge this and defend it on that basis?
“This is the height of timidity, of capitulation, of cowardice.”
Despite the AG’s statement that the tobacco GEG can be challenged in court because it is unconstitutional, Health Minister Dr Zaliha Mustafa “guaranteed” to reporters last Sunday that the government would table the Control of Smoking Products for Public Health Bill 2023 for second reading in the current Dewan Rakyat meeting that ends in 10 days on November 30.
On Keluar Sekejap, Khairy expressed regret that he did not table the 2022 tobacco bill for a vote in the Dewan Rakyat on the last day of its meeting in October last year after it was amended following the PSSC’s recommendations.
The former health minister said he was confident that the bill would have passed because he had secured bipartisan support from the Opposition.
However, he said then-Prime Minister Ismail Sabri Yaakob had informed him that even if the tobacco bill passed the Lower House, it wouldn’t go through the Senate because Ismail Sabri wanted to dissolve Parliament.
“So when he told me that, I thought it was pointless because even if I got approval from the Dewan Rakyat, Parliament would dissolve and it wouldn’t be fully passed into law.
“But I think now, having reflected on it, as a moral victory, I should have done it so that this government would feel more tied to it,” Khairy said.