THE Health Ministry (MOH) recently tabled the Control of Tobacco Product and Smoking Bill 2022 which includes the implementation of a Generational End Game (GEG) that will see those born after 2007 being barred from possessing, buying or using tobacco and vape products.
The GEG has been described as a step in the right direction to help the country achieve its smoke-free ambitions and create a new generation of people who do not smoke.
However, as a lawyer, I have observed issues with the bill tabled by the Health Minister Khairy Jamaluddin that could lead to this initiative failing.
The Malaysian Government does have the right to introduce two different legislations for two different groups of people.
But from the Federal Constitution stand-point where every citizen has the right to be treated equally before the law, any form of differentiated treatment that can be seen as discriminatory to certain groups must be reasonable.
The Government cannot be seen to be acting according to whims and fancies without reasonable justification.
Looking at this aspect, the first issue that arises is the ban on smoking for those born after 2007. We need to look at three groups of individuals once the bill is passed.
The first group is those born after 2005. The second group is those born between 2005 and 2006, while the third group is those born in 2007.
At this point in time, those in the first group have reached adulthood and will not be discriminated against once the bill is passed by end-2022.
The second group are those who have yet to reach adulthood and cannot smoke until they reach the age of 18.
The third group has also yet to reach adulthood and cannot smoke even after they have become adults in the future.
The situation that needs to be assessed is the rights of those in the second and third group where the moment the bill is passed by end-2022, those in the second and third group will still not have reached adulthood and as such, cannot smoke nor vape.
However, those in the second group will still enjoy the right to smoke once they have reached adulthood, while those in the third group will never have that right even when they become adults.
From this aspect, the classification of those born after 2007 can be described as unreasonable as the discrimination is not applied to all those who are underage at this point in time.
Lawsuit and opposition
Under the Federal Constitution, any citizen who feels discriminated against can seek legal recourse. Where the GEG is concerned, those born after 2007 can be deemed to have been discriminated against as they will be treated differently from under-aged people born between 2005 and 2006.
Because of this, there is a strong likelihood that the Government will face the risk of a lawsuit and opposition from those born after 2007 once they have reached adulthood as the bill and GEG will result in unreasonable discrimination.
This is because the right to smoke is still being granted to some groups who are under-aged at the time the bill is passed but reach adulthood in the future.
If the Government insists on implementing laws to create a smoke-free generation, I propose the Government implement them for a generation that has yet to come which are those born in 2023, taking into consideration that the bill is passed in the upcoming Parliamentary session and being implemented starting Jan 1, 2023.
This way, the generation affected by the GEG will be those born after the bill is passed and, as such will have no locus standi under the Federal Constitution to take the Government to court as the relevant law would have existed before they were born.
This generation would grow up knowing that smoking is an offence and a crime.
Even though the GEG is a noble effort toward ensuring a smoke-free nation, it needs to be refined so that its goals can be achieved through laws and policies that cannot be considered discriminatory. – Sept 9, 2022
Veteran lawyer, Mohamed Haniff Khatri Abdulla, owns a law firm registered with the Malaysian Bar, a professional body that regulates the legal profession in Peninsular Malaysia.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.