AFTER consultation and discussion with various renowned constitutional law experts namely Professor Emeritus Dr Shad Saleem Faruqi and Professor Ainul Jariah Maidin, we felt it is our calling and onus to respond to former chief justice Zaki Azmi’s media release as reported in the New Straits Times.

The Rakan Strategic GEG is an alliance of professional bodies and civil society groups that has steadfastly been advocating the Control of Tobacco Products and Smoking Bill and the generational end game. After much discussion and consultation with constitutional experts, we would like to put some pointers forward.

1. Personal liberty: Article 5(1)

1.1 The bill may be accused of violating personal liberty, which is guaranteed by article 5(1). “No person shall be deprived of his life or personal liberty save in accordance with the law”.

1.2 It is submitted that there is no fundamental right to:

(i) harm oneself

(ii) to harm others through second-hand smoke

(iii) to cause harm to the public interest through the many harmful effects of smoking and peddling in smoking products.

1.3 Nicotine addiction is not distinguishable from addiction to other drugs. If the country can ban or regulate other drugs, it can also regulate nicotine. It must also be emphasised that nicotine is more addictive than opium; if we can stage a war on opium, why not on nicotine?

1.4 The main objection to the state initiative in this area is that the law will be difficult to enforce. That is indeed true. But admittedly, the challenges surrounding enforcement accompany all laws.

1.5 Article 5(1) does not give an absolute right to liberty. Liberty can be deprived but only in accordance with the law. As long as there is a valid law, and the executive acts under it, there is no unconstitutional violation of personal liberty.

1.6 According to the Federal Court’s Alma Nudo Atenza decision of 2019, a law that deprives a person of his liberty must not be disproportionate. What is disproportionate is for the courts to determine. It is submitted that the bill is not unreasonable or disproportionate.

2. Equality before the law: Article 8(1)

2.1 The bill prohibits the use of a smoking device by any person who was born from 2007 onwards.

The law seeks to protect the young (16 years at the end of 2022) from falling prey to the harmful effects of smoking. People born before 2007 are not affected by the law. Is this a case of unconstitutional discrimination against the young?

2.2 It must be noted that article 8(1) on equality does NOT mandate that ALL persons must be treated alike. All that it mandates is that LIKE SHOULD BE TREATED ALIKE. Tun Suffian in PP v Khong Teng Khen (1976) and in Datuk Haji Harun bin Haji Idris v PP (1977) laid down that “the principle underlying article 8 is that a law must operate alike on all persons under like circumstances, not simply that it must operate alike on all persons in any circumstances…”. The State does have the power of distinguishing and classifying persons.

However, (i) the classification must be rational and reasonable and (ii) must have a rational nexus with the object sought to be achieved.

2.3 Age is a permissible factor for classifying persons into different categories. We have laws on age of majority, eligibility to vote, right to contest an election, age of marriage, age for consent to have sex, age below which there is no criminal liability, and special court procedures for juveniles. Age is a permissible, rational and necessary criterion for classification in several laws.

2.4 It is submitted that the proposed law’s categorisation of the population into “before 2007” and “after 2007” is based on a rational and reasonable basis and is supported by solid medical evidence. The classification has a reasonable nexus with the noble objects of the law.

All in all, the law seeks to ultimately eliminate the scourge of smoking. But it seeks to do it in a spirit of gradualism.

The main challenge is enforcement, not constitutionality. – April 27, 2023.

* Rakan Strategic GEG is an alliance of professional bodies and civil society groups advocating for the tobacco control bill.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.