Publish the A-GC’s advice that the Generational End Game (GEG) provision is unconstitutional
The Health Minister stated in Parliament last Wednesday that the GEG component of the Control of Smoking Products for Public Health Bill 2024 (Tobacco Bill) was dropped on the advice of the Attorney General’s Chambers (A-GC) and not as a result of tobacco industry players lobbying MPs in Parliament.
The A-GC’s advice was revealed only on the day the Bill was passed, justifying the GEG exclusion. Purportedly, the A-GC was of the view that the GEG violated Article 8 of the Federal Constitution as being discriminatory. Why is it discriminatory?
The public has no access to the A-GC’s advice to understand the grounds on which it is based. Therefore, in the interest of good governance and transparency, we urge the A-GC to publish the advice, which is not a state secret, to dispel the public’s impression that our Parliament has been manipulated by the Tobacco lobby.
Bills are scrutinised by the A-GC before it is presented in Parliament to ensure that it complies with our Federal Constitution. Therefore, how is it that just before the Bill was to be passed it came out with advice that the GEG is unconstitutional?
The Bill, in the first place, should not have been laid before Parliament if it violated the Constitution. The public needs an explanation from the A-GC for its apparent dereliction of duty.
It must be remembered that the same Tobacco Bill was scrutinised by the Parliamentary Special Committee from the previous 14th Parliament and approved with some amendments but retained the GEG component. Why didn’t the A-GC then intervene and advise Parliament that the GEG provision is unconstitutional?
The object of the GEG provision is to gradually free our people from smoking tobacco and vape products addiction which has serious negative health effects, and economic costs to families and the government. It is to eliminate preventable deaths from smoking and vaping.
Three major smoking-related diseases are lung cancer, heart disease and chronic obstructive pulmonary disease. It has been reported that the government spent RM6.2 billion to treat the three major smoking-related diseases in 2020 – twice more than the RM3 billion revenue generated from tobacco sales.
Article 8 of our Constitution is aimed at striking down arbitrariness in enacted law. The GEG component is not arbitrary but in furtherance of the right to life as enshrined in Article 5. Its purpose is to nip the problem, of nicotine addiction, in the bud. Tobacco smoking is an addiction acquired over many years and therefore the bill aims at stopping it by targeting the younger generation. Progressively, in a few years, the endgame of tobacco can be achieved. It is therefore a rational, and not an arbitrary, policy measure.
The Minister’s claim that “it has nothing to do with lobbying from industry players” is unacceptable as it goes against evidence. The industry players had lobbied parliamentarians in our Parliament premises, as admitted by his deputy, to remove the GEG component from the Bill. This goes against the WHO Framework Convention on Tobacco Control (FCTC), to which Malaysia is a signatory.
Article 5.3 of the FCTC states explicitly: “In setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law.”
By removing the GEG provision the government will not be able to achieve the 15 % target for reducing tobacco use for 2016-2025 set by our National Strategic Plan for Non-Communicable Disease. There will be increasing tobacco use-related deaths.
We reiterate our call to the government to take action to amend the Control of Smoking Products for Public Health Act 2024 to incorporate the GEG provisions and to set up an RCI to inquire into whether the Tobacco Lobby had undue influence on parliamentarians and other government agencies which resulted in the exclusion of the GEG component from the Act.
Commenting on the passing of the Tobacco Bill with the GEG excluded in Parliament last year, the former deputy director-general of the health ministry Prof. Dr. Lokman Hakim Sulaiman commented that it was “a black mark in the history of public health policy development in Malaysia. It is very unfortunate for Malaysian people when public health policies are influenced by business over scientific evidence for health.”
We must protect the integrity of our Parliament so that narrow vested interests are not able to influence parliamentarians, with their money, to legislate laws that serve them and not the people, as happens in the United States with its gun, defence industry and Big Oil lobbies.
Mohideen Abdul Kader
President
Consumers Association of Penang (CAP)
Press Statement, 25 March 2024