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Monday, November 20, 2023

AG’s statement on ‘unconstitutional’ GEG is ‘disturbing’, says think tank


The Control of Smoking Products for Public Health Bill’s Generational End Game provisions would have banned smoking, and sale of tobacco products, to those born after Jan 1, 2007.

PETALING JAYA: The attorney-general’s statement that his office had consistently provided advice that a proposed smoking ban based on age would go against constitutional guarantees of equal protection is a “disturbing development”, says a health think tank.

The Control of Smoking Products for Public Health Bill would have banned smoking, and sale of tobacco products, to anyone born after Jan 1, 2007. This provision, called the Generational End Game (GEG), was a key element of the bill.

Azrul Khalib, chief executive officer of the Galen Centre for Health And Social Policy, said senior representatives from the Attorney-General’s Chambers (AGC) were among those who attended meetings with various stakeholders to discuss the tobacco control bill over the past two years.

“The question of whether the GEG provisions under the proposed bill are contradictory to Article 8 of the Federal Constitution guaranteeing equality before the law, and equal protection of the law, is valid,” he said in a statement.

“Constitutional protection of the rights to equality and non-discrimination are the cornerstone of human rights. Why pass legislation which could later be deemed unconstitutional and struck down by the courts?”

He said this concern was raised by MPs during various parliamentary special select committees’ deliberations, during which representatives of either the health ministry’s legal team or the AGC were asked to respond.

“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.

He added that one does not need to speculate on what was said during these meetings as they are “faithfully captured” by the parliamentary Hansard, which is publicly available online for download from the Parliament’s website.

“Was the opinion of the AGC’s 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,” Azrul said.

In a statement on Saturday, Attorney-General Ahmad Terrirudin Salleh said the AGC had consistently provided legal views since 2022 that the provisions related to GEG can be challenged in court for conflicting with Article 8 of the Federal Constitution.

Article 8 of the Federal Constitution stipulates that all persons are equal before the law and entitled to equal protection of the law.

Terrirudin said the provisions would create unequal legal treatment between people born before Jan 1, 2007, and those born on or after that date.

The tobacco control bill was introduced in July last year by then health minister Khairy Jamaluddin but met resistance from several MPs. A revised bill was presented in June and subsequently referred to a parliamentary committee.

On Nov 6, the Cabinet decided to drop the GEG provision from the bill, with Terrirudin reported to have deemed the provision to be unconstitutional. - FMT

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