By Ida Lim | Malay Mail
The High Court today allowed three civil society groups to go on with their lawsuit against Health Minister Dr Zaliha Mustafa and the Malaysian government, as the government did not object to the court challenge — preventing the selling of vape liquid and vape gels to children — from proceeding.
This morning, High Court judge Datuk Wan Ahmad Farid Wan Salleh heard and decided to grant the application for leave for judicial review by the Malaysian Council for Tobacco Control, the Malaysian Green Lung Association, and Voice of the Children Sdn Bhd.
As this is a lawsuit filed through a judicial review application, the three groups had to first get the court’s leave or nod for the lawsuit to proceed.
The High Court’s granting of leave means that the judge will continue to hear the lawsuit.
The three civil society groups’ lawyer Edmund Bon told Malay Mail that the High Court granted leave today and confirmed that this was due to the government not objecting to the application for leave.
According to Bon, the High Court today also heard the three civil society’s application for an interim stay on the Health Minister’s March 31 order to remove liquid and gel used in e-cigarettes or vapes from being classified as “poison”.
In other words, the three civil society groups want vape liquid and vape gel to be temporarily included back under the Poisons List until the lawsuit is heard.
If the three civil society groups succeed in getting an interim stay, it would temporarily place such vape liquid products with the addictive substance nicotine back under the Health Ministry’s regulation, and prevent such products from being sold openly and legally to children.
Before the removal of vape liquids and vape gels from the Poisons List, it would have been illegal to sell such products — which were listed as poison — to children except for medical treatment.
Based on written submissions, Bon argued that there is a need for an interim stay due to reasons such as the danger to children’s health with vape liquid and vape gel freely available to them, and the potential of increased deaths linked to lung injury from the use of e-cigarettes and vapes, and increased healthcare costs.
Bon also highlighted that the non-regulation of vape liquid meant that nicotine levels in such products are currently unregulated and that any level would be permissible legally now.
Previously, the civil society groups claimed that the removal of vape liquids from the Poisons List was allegedly to allow the government to impose a tax on e-cigarette and vape liquids containing nicotine, noting that the Finance Ministry had from April 1 onwards imposed an excise duty of 40 sen per ml on e-cigarette and vape liquids with nicotine.
In submissions today, Bon said the government would not be harmed economically if the interim stay is granted, as it could still collect backdated taxes on vape liquids and vape gels if the civil society groups fail in their lawsuit and the interim stay is lifted.
Bon also argued that public health should triumph over tax collection.
The Attorney General’s Chambers (AGC) has objected to the interim stay application, based on several arguments such as there being no special circumstances and that a stay would be like an injunction — which is not allowed under the Government Proceedings Act and the Specific Relief Act.
Bon argued that there are special circumstances to justify a stay, and said a stay is different from an injunction and that the Government Proceedings Act and the Specific Act do not restrict the High Court from granting a stay in judicial review cases.
Senior federal counsel Ahmad Hanir Hambaly @ Arwi, who represented the government and Health Minister today, also confirmed to Malay Mail that the AGC did not object to the leave and that the High Court granted leave today.
Both Bon and Ahmad Hanir said that the High Court will be deciding on September 5 whether to grant the interim stay sought by the three civil society groups.
The three civil society groups were also represented by lawyers K. Shanmuga and Kee Shu Min.
In the lawsuit filed on June 30, the civil society groups want the court to cancel the Health Minister’s removal of vape liquids and vape gels from the Poisons List, or effectively restore regulation over such products.
