The controversy over the delayed tabling of the much-maligned Generational Endgame (GEG) health bill - that bars those born after 2007 from smoking or vaping - has appeared to have taken a new twist!
This was after some disturbing news emerged last week that apparently the country's Attorney General and the Law and Institutional Reform minister as well as some cabinet ministers have suddenly expressed doubts on the “constitutionality” of the bill.
Nevertheless, as was reported by the Star last Wednesday, according to lawyer Lim Wei Jiet, the Cabinet can actually go ahead with tabling the bill together with the GEG provision; they only need to defend it in court, if (ever) anyone challenges it for being unconstitutional.
Conversely, if the government is of the view that GEG is indeed unconstitutional, then it needs to first amend the Federal Constitution to accommodate the GEG, and only then proceed to table the bill.
For context, the GEG provision in the Control of Smoking Products for Public Health Bill 2023 - which is expected to be tabled again this month - seeks to ban tobacco and vape products for anyone born after Jan 1, 2007.
According to the said lawyer, the Attorney General is probably of the view that the Generational Endgame (GEG) provision in the bill is unconstitutional as it may contravene Article 8 of the Federal Constitution on “equality before the law”, but apparently the government is not bound to follow that.
Nevertheless, he added that as a general rule, the government should adhere to the views of the Attorney General on the legality of bills, but there are circumstances where it is not so straightforward whether a bill is constitutional or not.
Meanwhile, human rights lawyer New Sin Yew said the government could seek a second opinion from private parties if it is unsatisfied with the Attorney General’s advice; moreover, he said the government could also advise the Yang di-Pertuan Agong to refer to the Federal Court the question of whether or not the GEG is consistent with Article 8 of the Federal Constitution.
Additionally, he explained that the opinion rendered by the Federal Court, although not binding, will give as clear an indication as could be, on whether the GEG is constitutional or not.
As to whether the GEG law could be subject to legal challenge in the future, New said one way or the other, any law passed by Parliament is subject to legal challenges; at any rate, New is also of the opinion that the GEG provision is not unconstitutional and that it does not violate Article 8.
Besides, according to him, governments all over the world have prohibitions on harmful substances, with one example being the prohibition of the use and sale of marijuana and other drugs in Malaysia.
Moreover, according to the human rights lawyer, the issue of the GEG bill discriminating against a certain party also may not arise as long as there is a lawful objective, which, in this case, would be public health, where there is a rational connection between the discrimination and the objective; he added that, in this case, the government was closing the lid on tobacco to future generations.
He went on to cite examples of discrimination that may be acceptable and necessary, such as age restriction on watching certain movies and prohibiting foreigners from buying property of below a certain value.
As for the case of GEG where tobacco cannot be sold to those born after a specified time, the discrimination is justified for the protection of public health; moreover there is a compelling health reason here as it is designed to prevent the use of a harmful substance in a generation of people and to reduce the overall use of tobacco in society.
All these may make one wonder whether the reasons given by the government for delaying the tabling of the bill are just lame excuses; after all, even the much-chastised ‘liberal” governments like United Kingdom and New Zealand have no issue with banning smoking and vaping for those born after a certain age.
So what is stopping the Madani government? Some influential people out to protect their own interests, and indirectly, that of the tobacco and vape titans? Or the fear that the government might lose out on billions of ringgit in potential revenue to the country?
Main Source: The Star
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