The legal perils of the Tobacco and Smoking Products Control Bill 2022

Having had the chance to peruse through the contents of the Tobacco Bill, it appears that several provisions of the Tobacco Bill touch on matters of rights protected under the Federal Constitution in a manner that is deeply troubling many.

The Tobacco Bill is most known for its prohibition on individuals born on and after 1 January 2007 from purchasing, consuming, or using tobacco products and smoking devices. Commonly known as the “generational endgame” provisions. As a matter of legal principle, concerns have been raised on the constitutionality of such provisions.

Lingering questions remain as to whether these provisions that permanently curtails the rights of those born on and after 1 January 2007 would survive a challenge of being in breach of Article 8(1) of the Federal Constitution that guarantees equality as well as equal protection under the law and Article 5 that secures the right to personal liberty.

It is worth noting that Article 5(1) does not confer an automatic and absolute right to personal liberty when in accordance with the law, the Federal Constitution permits deprivation of personal liberty to a reasonable and non-arbitrary extent. A law that has been passed in the Parliament and acted on by the Executive branch is presumed valid and in line with the Constitution unless and until it is declared otherwise by the court.

Fortunately there do not seem to be any constitutional conflict between the Tobacco Bill and Article 5. However, in interpreting Article 8, it is crucial to note that it does not necessarily mean that all persons must be treated alike but rather that the law must operate alike on all persons under like circumstances. Thus, it is worth asking whether setting an age floor limit on a permanent prohibition to smoke is discriminatory and against the spirit of Article 8.

The State has the right to utilise age as a criterion for classification under the law and the everyday Malaysians may be familiar with these through the minimum age for marriage, voting, liability of crime and capacity to contract. Although the State does limit these abilities through an age prerequisite, it acts as a temporary gatekeep as opposed to the Bill’s permanent prohibition with its GEG.

If two adults attempt to purchase and consume tobacco or a smoking device but one is prohibited for life from it on the basis that they are born on or after 1 January 2007 while the other is not because they are born on 31 December 2006, is this against the principle of equality applying on individuals in “like circumstances”?

Similarly, the MP for Padang Rengas has brought forth the issue of freedom of choice and discrimination in the Parliament during the reading of the Tobacco Bill. By introducing a generational endgame, the State will effectively remove the freedom of choice from adults who are 18 years old in 2025. The essence of a generational endgame can be argued to be discriminatory as it deprives a generation of adults from exercising, what they may claim to be their freedom of choice while other adults face no similar deprivation.

This differs from when the State regulates consumption of tobacco or smoking through increased taxes and regulations where the regulations are applied equally onto all adults. So while the State may regulate tobacco and smoking, the freedom of choice to do so should be given to the individual. However, perhaps more importantly, are provisions relating to the enforcement provisions of the Bill.

The proposed law in its current form provides broad powers to authorised officers to gain access to any recorded information or computerized data, whether stored in a computer or otherwise; enter any premises, commercial or otherwise, for investigations; searches of baggage and packages; and searches and seizures without warrants. These provisions raise significant issues of disproportionality and endangering civil liberties. The protection of civil liberties is a cornerstone of the Federal Constitution, Malaysians have seen the slow erosion of these liberties across the years as more and more laws have come into effect allowing enforcement agencies greater powers to invade one’s privacy, as well as intrude unto one’s home and person.

The current iteration of the Tobacco Bill is yet another Act that endangers civil liberties through wide-ranging powers accorded to both the Minister of Health and authorised officers. For example, within Section 26 of the Act, any authorised officer shall have the power to enter any premises at any reasonable time for investigation purposes. If an authorised officer suspects that a residential dwelling is in breach of the Act, they have the authority to enter a private residential dwelling to investigate. Additionally, Section 33 also permits search and seizure without warrant if the officer has reasonable cause to believe that delay from obtaining a search warrant would affect the investigation.

It is extremely concerning that Malaysian civil liberties are at stake and potentially open to abuse in this Tobacco Bill. Fortunately, these concerns, among others, were raised by Members of Parliament during the 2nd Parliamentary Reading of the Tobacco Bill on the 1st and 2nd of August 2022. Additionally, a new PSC has been tasked to review the Tobacco Bill and the PSC members should take the opportunity to ensure an in-depth review of all provisions to ensure the legislation is strong enough to withstand any legal challenge on its constitutionality and enforcement powers in the future.

Of course, the Attorney General's drafting department may argue that similar provisions are already found in legislations regarding enforcement powers. But as the citizens are complaining about abuse of powers by civil servants, perhaps the powers given under this law should be more guardedly worded. It is noted that since these concerns were raised, the health minister has agreed to reduce the standard fines for GEG violations in the Act from RM5,000 to RM500, introduce community service sentences as an alternative to fines, removal of body searches for persons below the age of 18 and removal of punishment for possession of GEG-related offences.

These are undoubtably positive developments. However, no amendments have been announced on the concerns from MP’s and the public alike on the disproportionate and sweeping powers accorded to the health minister and enforcement officers as mentioned above, nor a comprehensive review of the constitutionality of the GEG itself.

While the road to the Tobacco Bill is paved with good intentions, alas, the fear of abuse of unchecked powers held by the authorities in Malaysia is a real one. Invasive and sweeping enforcement powers have, unfortunately, left a terrible scar on the collective Malaysian psyche. Each of these concerns must be given due consideration when reviewing the Tobacco Bill.

One other provision that can raise difficulties in implementation is Section 21, which empowers the Minister to set up a committee if, on advice of his Director General "there is an acute and critical situation" regarding the use of tobacco etc. Even as a lawyer, I do not understand what these words could or is intended to mean in the context of the Bill or the section specifically (unless I missed something). Again, the powers conferred by this provision can be open to abuse. The draftsman must try to define these words for the Bill or cite certain situations to guide the Minister and Director General as to when Section 21 is to be invoked.

Responsible lawmakers must be cautious to only allow those in authority and other officers only such powers that are absolutely necessary to achieve the objectives of the Tobacco Bill. While we take off our hats to the Minister for his determination to one day, totally eradicate this smoking habit, originally, practiced by the Red Indians, it must be ensured in the course of doing so that the generations of tomorrow do not come to regret the decisions we make today.