By Fatimah Zainal | The Star

Despite the Attorney General’s view that the Generational End Game (GEG) provision in the Control of Smoking Products for Public Health Bill 2023 is unconstitutional, the government can still go ahead with the Bill, say lawyers.

They say the government is not bound to follow Attorney General Datuk Ahmad Terrirudin Mohd Salleh’s view, which sees the age-based prohibition as unconstitutional as it contravenes Article 8 of the Federal Constitution on equality before the law.

The GEG provision in the Bill seeks to ban tobacco and vape products for anyone born after Jan 1, 2007.

Lawyer Lim Wei Jiet said as a general rule, the government ought to adhere to the views of the Attorney General on the legality of Bills but there are circumstances where it is not straightforward whether a Bill is constitutional or otherwise.

“In these cases, I would believe that the Cabinet can nonetheless proceed with tabling the Bill and then defend it in court if someone challenges it for being unconstitutional,” said Lim.

He added that if the government is of the view that the GEG provision is not unconstitutional, then it need not be decoupled with the Bill and can be tabled together.

“However, if the government is of the view that GEG is unconstitutional, then it needs to table a Bill to amend the Federal Constitution to accommodate the GEG, and then only proceed to table the GEG,” he said when contacted yesterday.

Human rights lawyer New Sin Yew said the government could seek a second opinion from private parties if it is unsatisfied with the Attorney General’s advice.

The government could also advise the Yang di-Pertuan Agong to refer to the Federal Court the question of whether or not the GEG is consistent with Article 8 of the Federal Constitution, said New.

“Article 130 of the Federal Constitution states that the Yang di-Pertuan Agong may refer to the Federal Court for its opinion any question as to the effect of any provision of this Constitution which has arisen or appears to him likely to arise, and the Federal Court shall pronounce in open court its opinion on any question so referred to it.

“This procedure would allow the government to go through the Yang di-Pertuan Agong to pose a question to the Federal Court on a particular course of action they wish to undertake.

“The opinion rendered by the Federal Court is not binding but it will give as clear an indication as could be on whether the GEG is constitutional or otherwise,” he said.

On whether or not the GEG law could be subject to legal challenge in the future, New said one way or the other, any law passed by Parliament is subject to legal challenges.

New is also of the opinion that the GEG provision is not unconstitutional and does not violate Article 8.

He said governments all over the world have prohibitions on harmful substances, with an example being the prohibition of the use and sale of marijuana and other drugs in Malaysia.

“So there is certainly precedent which has been accepted as perfectly fine.

“The idea behind GEG is not novel in that it is a gradual prohibition on tobacco compared to the absolute and immediate prohibition on drugs.

“If absolute and immediate prohibition is acceptable, why then is gradual prohibition unacceptable? Is it because of discrimination?” he asked.

New added that Article 8, however, permits discrimination as long as there is a lawful objective, which, in this case, would be public health, and if there is a rational connection between the discrimination and the objective.

“Obviously there is (a rational connection and legitimate objective) because you’re closing the lid on tobacco to future generations.

“Discrimination is usually used as a negative term but it is not necessarily so.

Discrimination means treating a person or a group of persons differently from others. However, equality before the law does not mean treating everyone in the same way.

“It means that you treat cases alike and different cases differently. Otherwise, there would be indirect discrimination,” he said.

New drew examples of discrimination that are common and in some cases, necessary, such as age restriction on certain movies, prohibiting foreigners from buying property of below a certain value, or prohibition on those without certain qualifications from being a lawyer or a doctor.

“Now, in this case of GEG where tobacco cannot be sold to those born after a specified time, the discrimination is justified for the protection of public health.

“You are preventing the use of a harmful substance in a generation of people and reducing the overall use of tobacco in society.

“This is a compelling health reason to introduce GEG,” he said.

New added that the government is also allowed to treat people in different circumstances differently, such as those who have not smoked versus those who are already smoking and presumably, addicted.

“That’s why the contention by the Attorney General that the GEG is unconstitutional is simply untenable,” he said.