For almost three years, I have been relatively quiet about the removal of liquid nicotine from the Poisons List and the legal challenge which followed, which was perhaps unusual for somebody who has spent so much of his professional life speaking about tobacco control.
But that silence was deliberate. Once the Malaysian Council for Tobacco Control, or MCTC, together with Malaysian Green Lung Association and Voice of the Children, decided that we were going to challenge the decision before the courts, I felt that there was a proper place for the argument to be made, through evidence, affidavits and legal submissions, rather than through an endless parallel trial conducted through press statements and public exchanges.
I write this now as the present chairperson of MCTC and as someone who was directly involved in the decision to pursue the judicial review. But I do not really want my op-ed to be another technical explanation of the judgment because that has been covered extensively by CodeBlue and other channels.
In essence, the High Court held that the 2023 exemption of liquid and gel nicotine used in electronic cigarettes and vaping devices from the Poisons List was irrational, was made without proper and effective consultation with the Poisons Board, and failed to adequately protect public health and Malaysia’s commitments to prevent and reduce nicotine addiction.
What I want to reflect on instead is what happened around that case, the people who carried different parts of this journey, and what it has taught me about how public health actually moves forward.
When we decided to go to court, there was no commercial interest waiting behind us, no company which would become richer if we succeeded, and certainly no large fund set aside to carry a long public interest case.
I can say now that we put our own resources into it (and a huge sum of our own savings), with other individuals contributing personally; and a huge chunk of assistance from our lawyers who themselves made enormous contributions of professional time and fees, knowing as we did that there was no financial reward waiting for anybody in the end, and indeed that there was every possibility that after all the effort, all the money, all the time and all the anxiety, we might simply lose.
First and foremost, my deepest gratitude and thanks to Edmund Bon, Shanmuga Kanesalingam, and their legal team who were our white knights – moving the case through the courts and leading the substantive arguments which resulted in the High Court judgment we have today.
Both deserve to be remembered because those of us in public health sometimes forget that believing something is wrong is only the beginning of a legal challenge. Somebody still has to translate that concern into questions of law, evidence, administrative power and judicial review, and then have the patience, discipline and courage to argue those questions properly before a court over a process which can stretch across years (as it did in this case).
There were also moments during this journey when things were considerably darker than perhaps most people outside the small group involved ever realised – because there was pressure on us not to proceed with the legal challenge.
There were people who felt very strongly that taking a government decision to court was a step we should not take. For some of us, there were genuine fears about our jobs, our positions, and what continuing down this road might mean professionally and personally.
I do not say this now because I want to name anybody or reopen old battles. Some of those pressures came from people themselves operating within systems and constraints larger than any individual.
But it would be dishonest to rewrite history and pretend that deciding to proceed was easy or that everybody was standing behind us, encouraging us forward.
There were moments when very few people appeared to be standing behind us and when the safer and certainly easier option would have been to issue another statement, hold another meeting, express our disappointment, and eventually move quietly on to whatever the next controversy happened to be.
But there comes a point when you have to ask yourself what you actually believe, and whether you are prepared to accept some personal consequence for acting upon that belief. For those of us involved, this became one of those moments because we believed that removing controls around an addictive substance before adequate protections were in place – particularly when children and young people were involved – was something we could not simply watch happen without exhausting every legitimate avenue available to us.
I will say something here which is perhaps more personal than what I normally write about public policy, but faith mattered to me during those moments as well. I believe in God, and I believe that in His divine mercy, He guides us towards what is right, even when human beings cannot always see where the road ahead is taking us.
Perhaps it was partly that faith, together with the knowledge that none of us stood to gain commercially or personally from this case, which gave us the confidence to continue when there were many practical and perfectly understandable reasons to stop.
In that sense, this has always felt to me like a victory for the ordinary person, for the small civil society organisation, and for people who do not possess the machinery or resources of government, but who nevertheless believe that if a public decision is wrong, there must still be a lawful way to question it.
We were never trying to destroy the system.
Indeed, the fact that ordinary citizens and civil society organisations can take a decision of government before an independent court is itself evidence of the system working. But there is something deeply reassuring in knowing that people without enormous political or financial power can stand before something much larger than themselves, put forward their case, and sometimes, after all the uncertainty, receive a good ending.
It is equally important, however, that we do not now rewrite this entire history into a convenient story of good people on one side and bad people on the other because tobacco control in Malaysia has never worked that way. Almost nothing important in public policy ever does.
Many have spent decades working in this landscape. People such as Prof Dr Lekhraj Rampal has been part of this struggle for more than four decades, long before vaping, nicotine salts or generational endgames entered our vocabulary. Individuals like Muhammad Sha’ani Abdullah, Prof Haniki, Prof Lokman Hakim, NV Subbarow and others have similarly spent decades within this movement, carrying institutional memory from one battle into the next.
There are many others whose names may never feature prominently when this case is eventually retold, but without whom there would have been no tobacco control movement strong enough to bring such a challenge in the first place.
The political story is similarly complicated and I think we should be generous enough to acknowledge that. Khairy Jamaluddin, when he was Health Minister, brought comprehensive tobacco-control legislation and the generational endgame further than it had travelled before, and while the legislation did not cross the final line during his tenure, pretending that his contribution therefore did not matter would be deeply unfair, because he pushed the process significantly forward, generated public and political debate around the issue, and moved an idea which had spent years struggling for political space much closer to becoming law.
Dr Zaliha Mustafa is perhaps an even better example of why we should resist painting people entirely in black or white because she was the health minister who made the nicotine exemption which we subsequently challenged.
The High Court has now made clear findings concerning why that decision was legally flawed, so I am certainly not going to rewrite that part of history or pretend that we agreed with her decision because clearly, we did not.
But at the same time, she was also the minister who brought the Control of Smoking Products for Public Health Bill back onto the floor of Parliament, initially with the generational end game (GEG) still part of that legislative journey. When the GEG couldn’t ultimately survive the political and legal process, she continued carrying the remaining legislation forward so that Malaysia finally obtained comprehensive tobacco and vape legislation after years of struggle.
Then Dzulkefly Ahmad inherited everything which followed: the legislation, its implementation, the litigation and ultimately the question of whether government should continue appealing the High Court judgment, and his contribution too belongs inside this collective story rather than outside it.
His commitment to tobacco control has been demonstrated across many years and through different political roles, and the World Health Organization’s (WHO) decision last year to recognise Dzulkefly, Dr Noraryana Hassan and myself representing MCTC through a shared World No Tobacco Day Award on the global stage was meaningful precisely because that recognition was never really about three individuals, but about what becomes possible when political leadership, a committed civil service and civil society continue working together even when they do not agree on everything.
This is how public health actually works. One minister may take an idea some distance, another may make a decision we profoundly disagree with while simultaneously moving another part of policy forward, another inherits the unfinished work and has to decide what comes next, while civil servants, parliamentarians, doctors, pharmacists, lawyers, academics and civil society organisations keep pushing from different directions.
Some people move legislation, some defend the science, some argue inside government, some challenge government from outside, some compromise because political reality demands it, some correct earlier decisions, and some simply remain around long enough to make sure that when everybody else has moved on to the next controversy, tobacco control does not disappear with them.
That is why I do not want this judgment to become anybody’s personal trophy, including mine.
Now that the case has succeeded, understandably many people want to celebrate the outcome and perhaps some people want to claim a little piece of it. But I am genuinely comfortable with that because if protecting Malaysians from nicotine addiction has become something everybody wants to associate themselves with, then please, take a piece of the victory. A public health victory becomes more valuable rather than less when people begin to regard it as something which belongs collectively to them.
What I do hope we remember, however, is how long these things take and how many people carry them when nobody is watching. This is especially true of our “hidden” heroes and heroines within the Ministry of Health working across changing administrations quietly but persistently.
I remain immensely grateful to those who came before us, to those who stood beside us when the going became difficult, to the people inside and outside government who kept tobacco control moving even when we disagreed strongly with one another, and to all the people whose names will probably never appear in any retelling of this judgment but whose work helped make it possible.
This was never one person’s or one organisation’s victory because too many people across too many years contributed something to getting us here. Perhaps that is how it should be remembered – as a collective win, one more small step in a journey which began long before this case and will continue long after it.
For more than three decades, those of us working in this field have learnt that public health almost never gives us the single great victory everybody wants because what we receive instead are small pieces of progress accumulated painfully over time, a law moved forward by one person and carried further by another, a bad decision challenged, a judgment delivered, a government eventually changing course, and another generation inheriting everything which remains unfinished.
This case is one of those moments, and perhaps also a reminder that sometimes the ordinary person can stand up to something much larger, that civil society can question power without making government the permanent enemy, that institutions can listen and correct themselves, and that persistence, supported by evidence, law, courage and, for some of us, faith, can occasionally produce a good ending.
And for me, there is something particularly personal in being able to say that because before I became an advocate, before I became involved in health systems or tobacco control, I was and remain a physician, and I am proud, grateful and deeply blessed that in whatever small way this effort may have contributed.
I have been able not only to heal where I can, but also to prevent harm, and in doing so to try to live up to one of the oldest and most revered principles of our profession, primum non nocere — first, do no harm.
The author is chairman of the Malaysian Council for Tobacco Control (MCTC).
- This is the personal opinion of the writer or publication and does not necessarily represent the views of CodeBlue.
