The long road to Malaysia’s nicotine victory

 The win doesn't belong to any one person, because public health victories become stronger when people believe they belong collectively to society.

Now that the High Court judgment on the removal of liquid nicotine from the Poisons List has been delivered, and the government has withdrawn its appeal, it is tempting to tell the story with a few heroes, a few villains and one decisive moment where everything changed.

The reality is much less tidy, because tobacco control in Malaysia has never moved through one person, one organisation or one government. Almost every important step has depended on somebody moving the issue a little further before somebody else eventually inherits it.

I write this as the chairman of the Malaysian Council for Tobacco Control (MCTC), one of three organisations which brought the judicial review, the other two being Green Lung Malaysia and Voice of the Children.

The High Court held that the 2023 exemption of liquid and gel nicotine used in electronic cigarettes and vaping devices from the Poisons List was irrational, made without proper and effective consultation with the Poisons Board, and failed to adequately protect public health and Malaysia’s commitments to prevent and reduce nicotine addiction – but the road to that judgment began long before this controversy.

What is less visible is what it took to bring the challenge, because there was no commercial interest behind us, no financial return waiting at the end, and no guarantee that after the expenditure of time, money and professional energy, we would succeed.

Civil society bore the cost, individuals contributed personally, lawyers contributed their time and expertise, and there were periods when support around us was much thinner than it appears in retrospect, including pressure not to proceed and genuine concern among some involved about what taking a government decision to court might mean professionally.

We did not make the decision lightly, and before litigation there were repeated attempts at engagement. Eventually, however, we believed the matter required legal determination. That experience is important to remember now, not because it makes civil society heroic or the government the villain, but because public interest action often takes place when the outcome is uncertain, the costs are real, and those involved have very little to gain personally from continuing.

The longer history matters even more, because Malaysian tobacco control did not begin in 2023 and did not begin when vaping entered the national conversation.

Dr Lekhraj Rampal has been part of this struggle for more than four decades, while many others have carried institutional memory from one tobacco control battle to the next, remaining engaged through years when legislation stalled, public attention moved elsewhere and advocacy frequently produced more disappointment than visible progress.

The political history is similarly complicated, and public policy cannot easily be divided into people who were simply right and people who were simply wrong.

When Khairy Jamaluddin was health minister, he took comprehensive tobacco control legislation and the generational endgame further than they had travelled before.

Dr Zaliha Mustafa, although she made the nicotine exemption which we later challenged, was also the minister who brought the Control of Smoking Products for Public Health Bill back onto the floor of Parliament. She carried the remaining legislation forward when the generational endgame could no longer survive the political and legal process.

Then Dzulkefly Ahmad inherited the legislation, its implementation, the litigation and, ultimately, the decision on whether the government should continue appealing the High Court judgment. His contribution forms part of the same continuum.

One minister moves an idea forward, another may make a decision we profoundly disagree with while advancing another part of policy, and another inherits the unfinished work, while civil servants, MPs, doctors, pharmacists, academics, lawyers and civil society organisations continue pushing from different directions.

The legal challenge required another form of contribution, because public health conviction alone does not make a judicial review. Our lawyers helped translate our concern into questions of law, evidence, administrative power and proper decision-making which a court could determine. This is why I do not believe the judgment should be anybody’s personal trophy, because public health victories become stronger when people believe they belong collectively to society rather than to one NGO, one minister, one lawyer or one generation of advocates.

Malaysia’s experience over more than three decades has shown that public health rarely gives us one great final victory. Instead, it offers progress accumulated over time, a law moved forward by one person and carried further by another, a decision challenged, a judgment delivered, a government eventually changing course, and another generation inheriting what remains unfinished.

For me, there is also something particularly personal in how this chapter ends. Before I became an advocate, before I became involved in health systems or tobacco control, I was and remain a physician, and I am proud and grateful that this effort, in whatever small way, may have contributed.

I have been able not only to heal where I can, but also to prevent harm, and in doing so, to try to live up to one of the oldest and most revered principles of our profession, primum non nocere – first, do no harm.-  - FMT

The views expressed are those of the writer and do not necessarily reflect the views of MMKtT.