By Alifah Zainuddin | CodeBlue

A vape that is small enough to pass as a keychain. Vapers can choose to string the disposable vape onto a lanyard using the small hole. Picture taken by CodeBlue at the InterContinental Hotel in Kuala Lumpur on May 13, 2023.

The High Court here today rejected anti-tobacco groups’ application to halt the exemption of liquid nicotine from the Poisons List while awaiting a judicial review.

High Court judge Justice Wan Ahmad Farid Wan Salleh, in issuing his verdict, said that the applicants – the Malaysian Council for Tobacco Control (MCTC), the Malaysian Green Lung Association (MGLA), and Voice of the Children (VOC) – needed to demonstrate special circumstances justifying the stay of the March 31 exemption order by Health Minister Dr Zaliha Mustafa.

“Before a decision can be exercised in favour of the applicants, this court must have some material before it. The grounds must be particularised in the affidavit of support, and it must be shown to this court of the existence of special circumstances that would warrant the grant of a stay of the impugned exemption,” said Justice Wan Ahmad Farid during a virtual court hearing today.

Justice Wan Ahmad Farid referred to a Court of Appeal decision in Bursa Malaysia Securities Bhd against Gan Boon Aun (GBA) in 2009, which observed: “Order 53 Rule 5 of the Rules of the High Court 1980 (RHC) provides that the grant of leave under that rule shall not operate as a stay of the proceeding in question. 

“In the circumstances of this appeal, GBA, in an oral application for a stay, should have provided grounds in order to enable the judge to exercise his discretion to grant a stay.”

The judge then dismissed the stay application by MCTC, MGLA, and VOC without any additional costs.

The schedule for legal proceedings has been decided as follows: The respondent is required to submit their affidavit no later than October 5, while the applicants must provide their response by October 19.

Written submissions from the applicants are expected by November 2, followed by the respondent’s submissions on November 16. In the event of a requirement, any additional written response from the applicants should be filed by November 29.

The scheduled hearing date for the case is December 6.

Last month, the High Court permitted the MCTC, MGLA, and VOC to initiate a judicial review regarding the removal of liquid and gel nicotine from the Poisons Act 1952. This decision came after the Attorney General’s Chamber (AGC) chose not to oppose the application made by the anti-tobacco and children’s rights groups to seek leave.

However, the AGC opposed the applicants’ request for a stay on the Health Minister’s exemption order, arguing that there were no special circumstances to justify stay proceedings and likened it to an injunction.

Applicants represented by legal counsel Edmund Bon, among others, had argued there was a “clear, grave, and obvious danger to public health, particularly children’s health” if the exemption order was allowed to stand pending the disposal of the suit.

The judicial review application by MCTC, MGLA, and VOC was submitted last June 30 in the High Court here, after the government failed to pass the Control of Smoking Products for Public Health Bill during the last Dewan Rakyat meeting. Instead, the tobacco and vape control bill was sent to the Health parliamentary special select committee (PSSC) last June 12 after its first reading in Parliament.

The lawsuit filed by the anti-tobacco and child rights groups sought to contest the order issued by Dr Zaliha last March 31 that exempted liquid and gel nicotine used in e-cigarettes and vaporisers from the list of scheduled poisons under the Poisons Act. The Health Minister had overridden unanimous objections from the Poisons Board regarding this declassification.

In their lawsuit, MCTC, MGLA, and VOC identified the Health Minister and the government as the first and second respondents, respectively. Dr Zaliha was referred to as both the current Health Minister and the minister at the relevant time.

The Health Minister’s special advisor, Bandar Kuching MP Dr. Kelvin Yii, claimed recently that the government planned to table the Control of Smoking Products for Public Health Bill in the upcoming parliamentary meeting that starts next month, after the Health PSSC presents its recommendations to the Ministry of Health.