KUALA LUMPUR, Nov 24 – Health Minister Dr Zaliha Mustafa and the government have objected to the Malaysian Medical Association’s (MMA) application to join anti-tobacco groups’ legal challenge of the declassification of liquid nicotine.
The largest doctors’ organisation in Malaysia, with more than 16,000 members nationwide, is seeking to participate as amicus curiae (friends of the court) in the judicial review application by the Malaysian Council for Tobacco Control (MCTC) and two other civil society groups to nullify the exemption of liquid nicotine from the Poisons List.
“As the main body representing the medical profession in Malaysia, MMA has experience and expertise in public health to assist the Court to fully appreciate issues that will arise during the hearing of this judicial review application,” MMA’s legal counsel Fahri, Azzat & Co said in a letter to High Court judge Wan Ahmad Farid Wan Salleh’s secretary last October 25, as sighted by CodeBlue.
MMA’s lawyers, Abdul Azeem Ambalam and Fahri Azzat, listed four factors that should be considered in their client’s application to be appointed amicus curiae in the suit:
- Whether this application was made on the grounds of public health or related to an order that affects society in general;
- Whether the Court will be assisted in determining legal principles;
- Whether the applicant has expertise, knowledge, information, or views that are not held by the parties;
- Whether, in the interest of justice, amicus curiae should be permitted to make arguments.
“Therefore, we apply for the MMA to be appointed amicus curiae in this proceeding and to be allowed to file written submissions and to make arguments during the upcoming hearing of this application,” said MMA’s lawyers, referring to the hearing of MCTC’s judicial review application scheduled in the High Court here next December 6.
However, both the health minister and the government, represented by the Attorney-General’s Chambers (AGC), objected to MMA’s application to join MCTC’s legal challenge as amicus curiae.
The AGC argued that MMA did not fulfil the criteria enabling it to be appointed amicus curiae and that the parties in the case were sufficient and have already provided the court, through their affidavits, with all the facts and evidence that can help the court to make a decision.
“This judicial review application does not involve any technical issues requiring specific expertise or professional views,” federal counsel Nurul Muhaimin Mohd Azman said in a letter last November 7 to the senior assistant registrar at the High Court, as sighted by CodeBlue.
“The respondents believe that the presence or involvement of MMA as amicus curiae will not add any value to the decision that will be made by the Court soon; and even if this case involves public interest, the respondents believe that the applicants as named are already sufficient in this case.”
The applicants for the judicial review of the deregulation of liquid nicotine are MCTC, an anti-tobacco umbrella body comprising more than 40 organisations; the Malaysian Green Lung Association, a tobacco control advocacy group; and Voice of the Children, a child rights group.
In response to objections raised by the AGC on behalf of the health minister and government, MMA’s lawyers stressed that the judicial review was a matter of public health and policy.
They pointed out that the health minister’s decision last March 31 to exempt liquid and gel nicotine used in electronic cigarettes and vapes from the list of controlled substances scheduled under the Poisons Act 1952 had major implications on public health, particularly among children and youths.
“With MMA’s presence, the Court will be able to take into account the views and expertise of one of the most important stakeholders in the field of public health in Malaysia – medical practitioners themselves,” said Abdul Azeem and Fahri in a letter to the judge’s secretary last November 9, as sighted by CodeBlue.
“It is better than not if the views of all the main stakeholders in public health in Malaysia are taken into account by the Court. If this judicial review is conducted without considering the opinion of the medical profession, it would contradict and prejudice public interest.
“It is appropriate for MMA to be given the opportunity to provide their views about this issue on the basis of public interest and the public good.”
Case management for MMA’s application has been set for November 30. When contacted on why the doctors’ group sought to participate in the case as amicus curiae, MMA president Dr Azizan Abdul Aziz told CodeBlue briefly: “It is due to technicalities.”
