KUALA LUMPUR, July 30 — There have been many arguments for and against the government’s ambitious Control of Tobacco Product and Smoking Bill 2022, which was tabled in Parliament last Wednesday.

But lawyers contacted by Malay Mail said there is a glaring flaw in the Generational End Game Bill — GEG for short — which runs counter to two constitutional guarantees for all residents in the country: equality before the law, and personal freedom.

Muhammad Haziq Abdul Aziz, Nizam Bashir Abdul Kariem Bashir, and Fahri Azzat all said legislating GEG opens it to challenge in court on grounds of discrimination.

The first is a fundamental guarantee under Article Article 8(1) of the Federal Constitution, which accords equal protection under the law to everyone in Malaysia.

Potential discrimination and power overreach

"Does Article 8(1) and (2) cover age, since this provision made no mention of the word ‘age’?” Muhammad Haziq told Malay Mail.

"How would our Federal Court give meaning to age? How would the Federal Court expand the group of persons who shall receive equal protection under the law?” he added.

Article 8(2) bars discrimination based on religion, race, descent, place of birth or gender "except as expressly authorised” by the Constitution.

The GEG Bill prohibits the sale of cigarettes or vape products as well as making available smoking services to those born after 2007.

First-timers found doing so can be punished with a maximum fine of RM20,000, or up to a year in jail, or both while repeat offenders face up to RM30,000, two years in jail, or both.

Criminal action against businesses includes a maximum sentence of RM100,000 for first-timers and triple that for repeat offenders. The business owners are also liable to jail time if convicted.

The GEG Bill also appears to encroach on personal freedoms as guaranteed by Article 5 of the Federal Constitution, the lawyers said.

Article 5(1) guarantees that no one "shall be deprived of his life or personal liberty save in accordance with law”.

"Does smoking fall under the umbrella of personal liberty? Should the court interpret the definition of life liberally so as to include the liberty to smoke? How about the duty of the government to protect public health from hazardous cigarette smoke?” Muhammad Haziq posed.

"The court has to balance these two and interpret the Constitution harmoniously, at the same time liberally, so as not to restrict the rights of individuals guaranteed under the Constitution from being oppressed by the government,” he added.

Nizam noted that the GEG Bill contains some questionable legal provisions that would allow law enforcers full access to private data.

Article 34(1) and 34(2) in the Bill sighted by Malay Mail states that investigating officers must be given access to any recorded information or computerised data in the course of their investigations, if they believe the device is involved in an offence.

Article 34(3) of the Bill states that the authorised officer may make copies of or take extracts from the recorded information or computerised data, if he deems it necessary.

Furthermore, Article 34(4) states that access to be given to the officers includes the necessary password, encryption code, decryption code, software or hardware and any other means required to enable the officers to scrutinise the information or data.

Malay Mail has written in detail about how the provisions would allow authorised officers by law unfettered access to an individual’s recorded information and computerised data.

Chance of backfiring?

Fahri said these two key points make the GEG appear "absurd” and needs deeper thought before being passed in Parliament.

"There is a possibility the complete ban of tobacco on those born before 2007 may backfire with the youths and encourage them to experiment and try it. Personally, I think this is the lazy approach to encouraging youths or people in general to not use tobacco,” he added.

To Fahri, using legislation to compel Malaysians into anti-vice behaviour may work for a short spell, but will backfire in the long run.

He added that criminalising smoking would push young Malaysians into doing the opposite of what the GEG wanted to avoid, besides expanding the black market for these activities and feeding corruption.

"Using the law to ban something or make something illegal does not necessarily result in its absence or eradication. What it does most times is send it underground from which it becomes an illegal industry. It provides room for corruption by authorities,” he said.

He pointed to current laws that provide for harsh punishments on drugs, alcohol and cigarettes as an example of legislation that failed to stem the menace.

"The problem in Malaysia is usually not with the law but with its enforcement,” Fahri said.

Nizam said the government has a delicate balancing act with the GEG Bill.

"Pro-smoking advocates, conversely, premise their arguments on rights to liberty, self-determination and the right to privacy.

"However, given the medical evidence that stands starkly against the tobacco lobby or pro-smoking advocates, it seems difficult — to put it diplomatically — not to introduce some form of legislation against it.

"Even so, perhaps criminalisation is not necessarily the way forward. Education and soft measures may be more effective in that regard,” he said.

Nizam added that it would be interesting to see how the government plans to balance the revenue losses to the Treasury through the sale and taxes on tobacco products with the anticipated benefits the GEG Bill is supposed to bring to Malaysia.