Controversial CTPS Law Faces Constitutional Challenges in Malaysia

Although liberals may argue that the constitution does not grant the right to harm oneself and others and burden the national healthcare system.

Whenever the government uses criminal law to enforce morality, define wrongdoing as a crime, or regulate individual autonomy, constitutional issues arise. Therefore, it is not surprising that the Control of Tobacco Products and Smoking (CTPS) Bill is subjected to strict scrutiny by parliament and the public. In the spirit of democracy, such scrutiny should be welcomed.

The law prohibits individuals born on or after January 1, 2007 from smoking, using electronic cigarettes, or possessing tobacco products or smoking devices. The aim of this "generational endgame" law is to gradually eliminate the health hazards of smoking by making it illegal for young people born after 2007 to smoke or use other smoking devices. It is illegal to sell these devices to anyone born after 2007.

There is conclusive medical evidence supporting this anti-smoking health initiative. Smoking leads to various diseases such as cancer, heart disease, lung disease, stroke, and chronic obstructive pulmonary disease.

The cost of treatment is mainly borne by taxpayers. Malaysia reports over 27,000 deaths per year related to smoking.

However, there are still some constitutional issues that are worth studying.

Do smokers and e-cigarette users have the right to exercise their choices? Does smoking fall under the protection of personal freedom as guaranteed by the Article 5.1 of the Constitution, which states that "no one shall be deprived of life or liberty in accordance with the law"?

The concept of "personal freedom" not only refers to personal liberty or freedom from arrest and detention. Courts in common law countries interpret this concept to include the right to live with dignity, the right to privacy, and the right to be free from police surveillance.

However, personal freedom is not and cannot be absolute. For example, individuals do not have the right to sell, purchase, possess or consume dangerous drugs; possess firearms without a license; possess pornography; walk naked in public; and embrace and kiss in public parks (Ooi Kean Thong v Pendakwa Raya, 2006). These issues of individual autonomy are subject to legal restrictions.

As secondhand smoke poses a harm to both smokers and non-smokers, it infringes upon the human rights of those who do not smoke or use e-cigarettes. Smoking, vaping, and selling these products have also been linked to diseases and deaths, which unquestionably have detrimental effects on public health.

Nicotine addiction is no different from addiction to other drugs. If a country can ban or control other drugs, it can also control nicotine or its substitutes.

Those who cite Article 5, Paragraph 1 in defense of smoking or vaping have forgotten that it does not grant an absolute right to personal freedom. It protects us from arbitrary administrative action but allows for lawful deprivation of individual liberty. There is no constitutional violation as long as there are valid laws and proper administrative procedures are followed. Once the CTPS law is enacted by the legislature, the argument based on Article 5, Paragraph 1 will lose much of its appeal.

Is the penalty provision of the CTPS law disproportionate? For the past six years, our courts have maintained that the severity, reasonableness, or oppressive nature of the law is not for the courts to decide. If the legislature enacts a law within its jurisdiction, the court's duty is to apply the law as is. As Suffian LP said in the Andrew Thamboosamy case: "If the government exercises the powers conferred upon it by Parliament and complies with the law, then the duty of the court is clear; the court should simply apply the law, no matter how harsh its effect may be.

Since the ruling by Federal Court's Alma Nudo Atenza (2019), there has been a change in judicial position. In that case, the dual presumption of guilt and mandatory death penalty in drug cases was deemed disproportionate. The court held that the term "law" in Article 5(1) refers to a proportionate law. Proportionality is a matter for the court, not the Parliament, to decide.

However, some argue that the precedent set by Alma Nudo Atenza will not apply to the CTPS bill because it does not have a presumption of guilt and the penalties imposed, while severe, are not overly harsh.

The aim of this bill to prohibit smoking for future generations is not unreasonable or disproportionate. Many other countries, such as Finland and New Zealand, have similar (albeit more lenient) laws.

It is reasonable to allow ministers to designate any public area as a non-smoking zone in the constitutional Gazette. However, some aspects of the bill, while acceptable under the constitution, seem quite authoritarian and require scrutiny.

According to the proposed legislation, anyone (born 2007 or later, even if they are considered a competent adult) caught smoking or vaping or violating smoking bans could face a fine of RM5,000. Some argue that the penalty should be reduced as the offense is relatively minor.

The 34th clause of the bill allows unrestricted access to individuals' personal information and computerized data. It grants severe powers of forcible entry, search (including bodily searches), and detention, all of which require review.

Retailers or final sellers will be held responsible for verifying the age of every buyer.

Does it violate the promise of equality before the law under Article 8 of the Constitution? The CTPS Act prohibits anyone born after 2007 from using smoking devices. The law is aimed at protecting young people (those under 16 by the end of 2022) from the harmful effects of smoking. However, those born before 2007 are not affected by the law. Is this a case of unconstitutional discrimination against young people?

It must be emphasized that Section 8(1) of the Equality clause does not require that everyone be treated exactly the same. Rather, it simply demands that people in similar circumstances be treated equally. Tun Suffian, in PP v Khong Teng Khen (1976) and Datuk Haji Harun bin Haji Idris v PP (1977), stated that "the basic principle of Section 8 is that the law must be applied equally to all people in similar circumstances, not only must it be effective for all people in all circumstances.

The state does indeed have the power to differentiate and classify individuals. However, such differentiation or classification must be reasonable and have a justifiable connection to the goal being sought.

Age is a widely accepted, reasonable, and necessary classification criteria outlined in many laws. Legal regulations cover issues such as contractual capacity, voting rights, eligibility for candidacy, minimum marriage age, age of consent for sexual activity, the juvenile justice system, and the prohibition of selling or buying alcohol and tobacco to minors.

In conclusion, the proposed regulations are supportive of the fundamental goal of eliminating the harm caused by smoking. Beginning with youth, it ultimately extends protection and prohibition to everyone.

The main challenge of the law is enforcement, not constitutionality. Although some liberals may argue that the Constitution does not give the government the right to harm oneself and others and burden the national healthcare system.

Freedom in and of itself has no value. This is the purpose of freedom. It is a sense of responsibility and restraint. The constitutional provisions for personal freedom, free speech, and equality do not prohibit the immediate or ultimate prohibition of smoking and smoking devices because they harm oneself, others, and society.

While this is true, it cannot be denied that this law will bring many challenges. It will promote the growth of illegal cigarette trade. Smuggling groups will have a larger market. Corruption will escalate.

The law will be difficult to enforce. Although this is indeed a fact, it must be pointed out that challenges surrounding law enforcement exist with all laws.

Another challenge is the need to re-educate the public in order to ensure their cooperation. Many older individuals are accustomed to smoking, while many young people falsely view smoking as a rite of passage and a way to break free from constraints.

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