KUALA LUMPUR, August 21 — The High Court’s landmark ruling on a nicotine case compels the Malaysian government to comply with the World Health Organization’s Framework Convention on Tobacco Control (WHO FCTC) in an historic first.
Justice Aliza Sulaiman, who is now a Court of Appeal judge, said a 2023 order gazetted by then-Health Minister Dr Zaliha Mustafa to exempt liquid or gel nicotine used in e-cigarettes and vape from the Poisons List under the Poisons Act 1952 (Act 366) contradicted the FCTC that Malaysia became party to in 2005.
Aliza cited Article 5 of the FCTC that obliges member parties, in accordance with their capabilities, to “adopt and implement effective legislative, executive, administrative and/or other measures…in developing appropriate policies for preventing and reducing tobacco consumption, nicotine addiction and exposure to tobacco smoke”.
She further cited the Convention on the Rights of the Child (CRC), another international treaty that Malaysia has been a party to since 1995, that requires protection of the “best interests of the child” and recognition of the “right of children to the enjoyment of the highest attainable standard of health”.
“The Minister breached the duty to protect public health and failed to act in accordance with Malaysia’s international commitments under the WHO FCTC and CRC to prevent and reduce nicotine addiction when she made the Impugned Order and included the Impugned Exemption,” said Aliza in her 26-page full written judgement on Malaysian Council for Tobacco Control & Ors v Health Minister, Malaysia & Anor last July 26, as sighted by CodeBlue.
Aliza added that the government’s failure to consult children or their representatives before declassifying liquid nicotine as a scheduled Group C poison rendered the exemption “illegal or irrational”.
The High Court dismissed the government’s defence of removing liquid nicotine from the Poisons List in a March 31, 2023, order gazetted by Dr Zaliha to enable the Ministry of Finance (MOF) to impose excise duties on e-cigarette and vape liquids containing nicotine the next day on April 1.
“Hence, despite recognising that e-cigarettes and vape liquids were dangerous to health and that Malaysia was obliged to regulate and restrict their supply, sale and use, the Minister proceeded to make the Impugned Order, which included the Impugned Exemption, to give effect to the decision regarding taxation.”
The Control of Smoking Products for Public Health Bill 2023 was tabled in Parliament on November 28, 2023, with the Control of Smoking Products for Public Health Act 2024 (Act 852) coming into force only on October 1, 2024.
This created a legal lacuna in regulating nicotine vape for one and a half years after Dr Zaliha removed liquid nicotine from the Poisons List.
“Hence, before Act 852 came into operation, there was no comprehensive law to govern the matter,” wrote Aliza.
“I was satisfied that the Applicants have established that the Minister’s decision in making the Impugned Exemption, motivated primarily by economic reasons of tax benefits and revenue collection, prior to the implementation of Act 852, was unreasonable and irrational. Clearly, the Minister took into account irrelevant considerations and disregarded relevant considerations.”
In response to the government’s contention that the matter was now “academic”, due to the entry into force of Act 852, the judge pointed out that the impugned order still wasn’t repealed, Dr Zaliha didn’t carry out “conscious, meaningful, purposeful, and effective” consultation with the Poisons Board before making the order, the then-minister didn’t take into account relevant considerations when she made the order, and Dr Zaliha failed to protect public health.
On whether the minister’s order was justiciable, Aliza noted that the respondents in the lawsuit – the health minister and the government – had vehemently argued that this was a policy decision by the executive arm of government, following parliamentary approval of Budget 2023.
“Thus, the Respondents were of the firm position that issues relating to policy consideration was neither justiciable nor capable of judicial determination,” wrote the judge.
“I, however, was inclined to agree with the Applicants that the law on judicial review has developed to an extent that the courts are not limited to review the decision of the relevant authority by only challenging the lawfulness of the decision-making process; the power extends to scrutinising the decision as regards the process and substance to determine the reasonableness of the decision.”
Court’s First Definition Of ‘Consultation’, Extends To Other Government Agencies And Laws
Aliza provided the court’s first definition of “consultation” under the Poisons Act. Section 6 states that the minister may, “after consultation with the Poisons Board”, add to, remove from, or reinstate in the Poisons List any substance that the minister deems “fit and proper”.
She noted that respondents had asserted that Act 366 did not specify the method of consultation required and that it did not mean “consent”.
However, Aliza ruled that “consultation” with the Poisons Board under Section 6 of Act 366 isn’t only mandatory, but must also be “conscious, meaningful, purposeful, and effective”.
The judge cited Indian, English, and Malaysian case law on how proper “consultation” should be carried out.
She highlighted the absence of an in-person meeting between Dr Zaliha and the Poisons Board about the government’s proposal to exempt liquid nicotine from the Poisons List.
“Although Act 366 does not expressly require such a physical meeting to take place, after having received the unanimous decision of the Poisons Board to reject the proposed Impugned Exemption on 29.3.2023, it was reasonable to expect the Minister to engage with the Poisons Board and have further discussions or exchange of views on this important issue affecting public health.
“Instead, on the next day (30.3.2023), the Minister immediately decided to make the Impugned Order, which she then signed on 31.3.2023. No reasons were given by the Minister in acting against the advice of the Poisons Board.”
Aliza said Dr Zaliha had “evidently” treated the consultation requirement as “formal compliance” with Act 366, even though consultation, in its true meaning, must be “effective and real, and not mere lip service”.
“Effective consultation necessitates the exchange of views and consideration of counterproposals. This was clearly absent in this case.”
Citing respondents’ affidavits, the judge noted that a decision had already been made for the imposition of excise duties on e-cigarettes and vape products, hence the exemption of liquid nicotine from the Poisons List was necessary.
“To put it crudely, it was a ‘done deal’,” said Aliza.
“This lends credence to the Applicants’ submission that the Respondents treated the consultation as a mere formality, resulting in the overwhelming evidence of the dangers posed by e-cigarettes and vape liquids and the increased likelihood of vapes leading to nicotine addiction on the part of children being ignored.”
Edmund Bon, who represented the three applicants in the case – Malaysian Council for Tobacco Control (MCTC), Malaysian Green Lung Association (MGLA), and Voice of the Children (VoC) – said the High Court’s definition of “consultation” extended beyond the Poisons Board or the Poisons Act and applied to all government agencies and bodies under other laws.
“Orang Asli/Asal issues, land development, EIA (environmental impact assessment) – wherever ‘consultation’ is mentioned,” Bon told CodeBlue.
Judge Adopts ‘Anxious Scrutiny’: Heightened Inspection Due To Human Right To Health
Aliza adopted applicants’ argument for “anxious scrutiny” of the exemption of liquid nicotine from the Poisons List, meaning that the court should adopt a heightened level of scrutiny of the matter due to its gravity because it revolved around a fundamental liberty and human right to health.
She noted that applicants had invoked Article 5 of the Federal Constitution on the right to life that doesn’t refer to “mere existence”, but includes other rights like the right to live in a healthy environment.
“Without health, there is no life; the right to life must logically include the right to health,” wrote the judge.
Aliza cited applicants’ proposition that the health minister and government should have a higher burden on them and a higher threshold to meet to justify the exemption of liquid nicotine from the Poisons List.
“This is because the greater the interference with human rights, the narrower the range of responses open to a rational decision-maker and the more the court would require by way of justification before it could be satisfied that the decision was rational,” she wrote.
“Additionally, Malaysia has committed itself to recognising and protecting the right to health of its people by signing and ratifying international agreements and treaties.”
Aliza agreed that there must be “anxious scrutiny”, or a heightened level of inspection of the impugned exemption, “as it revolves around the fundamental right to health, for which the Minister was tasked by statute and Parliament to protect public health and ensure, as far as possible, a clean and healthy environment for every person in Malaysia.”
Bon explained that “anxious scrutiny” in issues of human rights was a new test for public interest cases that has now been adopted by the High Court. This requires the government to provide further justification and the courts to question more, instead of simply allowing Putrajaya to cite “national interest” or “public security”.
“The burden is heavier on the government – they cannot just say the reason is, for example, tax and then the court accepts it. In ‘anxious scrutiny’, the court needs to assess if the tax reason is good enough, juxtaposed with other important considerations, such as human rights,” the lawyer told CodeBlue.
“The judicial review now is more tied to the gravity of the consequences of the impugned decision — flawed decisions that are very impactful, especially to life, health, and constitutional rights etc. The court needs to make a closer examination than routine administrative decision-making.”
Last Tuesday, Dr Zaliha’s successor, Dzukefly Ahmad, and the government withdrew their appeal against the High Court ruling.
