KUALA LUMPUR (Nov 20): The Galen Centre for Health and Social Policy has refuted the recent claim by the attorney general that his office has been consistent in its stance that the tobacco and vape generational end game (GEG) provisions in the Control of Smoking Products for Public Health Bill 2023 could be unconstitutional.

The think tank said that at all the consultation meetings since the bill was first proposed in 2022, including those held by three Parliamentary Special Select Committees (PSSCs), representatives of the Attorney General's Chambers (AGC) had given the assurance that the GEG provisions were legally sound.

The PSSC on Health, Science and Innovation and the PSSC Studying the Control of Tobacco Products and Smoking Bill held their meetings in 2022, while the PSSC on Health's meeting was in 2023.

"This concern was raised by Members of Parliament during the early stages and in various PSSC deliberations. Representatives of either the Ministry of Health's legal adviser or the AGC were asked to respond and answer," said Galen Centre chief executive officer Azrul Mohd Khalib.

"If there was any consistency to be had, it was the continued assurance from the legal side that the GEG provisions were on the right side of the law, and specifically the Federal Constitution. Whether they were palatable from a political perspective, was a separate consideration," Azrul said in a statement on Monday.

The GEG provisions, first proposed by former health minister Khairy Jamaluddin in 2022, seek to prohibit the sale to and use of conventional and electronic cigarettes for anyone born from 2007 throughout their lifetime.

On Saturday, Attorney General Datuk Ahmad Terrirudin Mohd Salleh said the AGC had consistently provided legal views since 2022 that the provisions related to GEG could be challenged in court, as it allegedly contradicts Article 8 of the Federal Constitution, which stipulates that all persons are equal before the law and entitled to equal protection of the law.

"... the provision creates unequal legal treatment between a person born before Jan 1, 2007, and a person born on and after Jan 1, 2007," the attorney general had said.

Ahmad Terrirudin was responding to former Khairy's media statement claiming that the AGC had previously signed off on the bill when it was prepared while he was health minister, before a sudden reversal. Khairy also claimed that the suspension of the bill was due to political pressure rather than legal concerns about its constitutionality.  

Azrul, in his statement, questioned the veracity of the AG's claim, saying that the discussions during the PSSC deliberations can be verified through transcripts that are available publicly online on the Parliament of Malaysia website.

"Was the opinion of the AGC representatives since early 2022 when the bill was first proposed and deliberated throughout and into this year, consistent in stating that these provisions were unconstitutional? Check the Hansard," he contended.

Azrul further argued that the bill is immediately and urgently needed to close a legal loophole created by the Health Ministry's decision on April 1 to remove liquid and gel nicotine from the list of controlled substances scheduled under the Poisons Act 1952.

"This act of self-harm, in absence of any regulation or legislation, has resulted in nicotine vape and e-cigarettes being easily accessible, used, sold and manipulated without restraint or regulation.

"Currently, retailers can even legally sell these nicotine products to children at whatever nicotine concentration. As a result, a nicotine vape epidemic has erupted among Malaysian children which has been documented extensively in the media recently," he said.

As such, Azrul pointed out that the government has two options at this juncture, either to decouple the GEG provisions from the bill, or put back liquid and gel nicotine into the schedule of controlled substances under the Poisons Act.

"If the provisions related to the GEG in the current version of the bill needs to be dropped in order for the government to table and Parliament to immediately pass the Control of Smoking Products for Public Health Bill 2023, then this is the price and decision that we have to make, however bitter. I am not happy about it but the government needs to realise the sense of urgency and emerging crisis that it has itself created," he said.

Health Minister Dr Zaliha Mustafa, speaking in Parliament on Monday, assured that the bill will be tabled for its second reading before the final parliamentary meeting of the year ends this month on Nov 30.