KUALA LUMPUR, July 30 – A second parliamentary committee has called for a review of the Control of Tobacco Product and Smoking Bill 2022, expressing concern with the criminalisation of minors for smoking or vaping.
The Dewan Rakyat special select committee (PSC) on women and children affairs and social development, chaired by Pengerang MP Azalina Othman Said (Umno), said it wants to have the opportunity to scrutinise whether the prohibitions, liability, and enforcement in the tobacco control bill are in line with the United Nations’ Convention on the Rights of the Child (CRC), a global treaty that Malaysia ratified in 1995.
The women and children’s PSC acknowledged the Ministry of Health’s (MOH) aspirations for a smoke-free generation with its proposed tobacco generational end game (GEG), as outlined in the bill, that seeks to ban anyone born from January 1, 2007 from ever smoking or vaping in their lifetime.
“However, the PSC is concerned that the clauses related to enforcement of the bill may lead to potential abuse and misinterpretation, besides penalties that are disproportionate with the offence,” the bipartisan PSC said in a statement today.
The Control of Tobacco Product and Smoking Bill prohibits not only the sale of tobacco and vape products to those born from 2007– like current tobacco control regulations under the Food Act 1983 with a point-of-sale ban for under-18s – but goes a step further by prohibiting the act of smoking or vaping, as well as the purchase and possession of such products by the next generation.
The women and children’s PSC highlighted Section 24 of the Control of Tobacco Product and Smoking Bill that empowers the minister to appoint “any person” as an authorised officer.
The Dewan Rakyat committee also expressed “worry” with the scope of powers of authorised officers, who are empowered under the proposed tobacco control law to investigate; enter premises; take samples; and to stop, search and seize with or without a warrant, and the like, citing Sections 24, 26, 27, 28, 32, and 33.
None of these enforcement-related provisions, including the powers of search and seizure in private homes with or without a warrant, specifically exempt application to the offences of personal possession, or smoking or vaping under the GEG. Search and seizure of “any premises”, under the tobacco bill, also includes a body search.
“The PSC further expresses concern because this enforcement involves minors and handling of this group requires officers trained in child sensitivity, in line with international norms,” said the women and children’s PSC.
“Section 54(1)(b) related to compounding of offences must also be reviewed more thoroughly and its implications on minors.”
Section 54(1)(b) prohibits the purchase of tobacco and vape products, as well as smoking or vaping, or use or possession of such products by anyone born before January 1, 2007, who are yet to turn 18 when the proposed Act comes into force.
Section 48 empowers the minister to make regulations determining which offence may be compounded. The maximum compound permitted is half of the maximum fine an offender would have been liable to upon conviction. Offenders may be prosecuted if they fail to pay the compound.
If the GEG is enforced from 2025, starting with the 2007 generation, those subject to a maximum RM5,000 fine upon conviction of the offence of purchasing cigarettes, tobacco or vape products under Section 13(3), or for the offence of smoking or vaping, or use or possession of tobacco or vape products under Section 17(1), would be aged 18 years and under.
Each subsequent year of GEG implementation adds more adults subject to enforcement under the proposed tobacco control legislation for the rest of their life after reaching the age of majority, although most of the GEG group would still be children or teenagers aged below 18 in the first few decades of the generational smoking ban.
Health Minister Khairy Jamaluddin said in a TikTok video posted yesterday that offenders from the GEG group would be issued maximum compounds of only RM50, like the current practice for smokers who flout no-smoking rules at designated public places.
“Even that, they can ask for discounts,” he said. “Offences that involve the next generation under this bill are not offences that can be registered under the Registration of Criminals and Undesirable Persons Act 1969. No criminal record or jail term for GEG offenders.”
The Control of Tobacco Product and Smoking Bill does not set a minimum age of majority below which children shall be presumed not to have the capacity to commit offences, something which is mandated by Article 40 of the CRC.
The women and children’s PSC further agreed with the health, science and innovation PSC’s stance against the criminalisation of teenagers under the tobacco bill.
“With that, the PSC is prepared to assist the Ministry of Health Malaysia in relation to the bill from the perspective of child rights before the second reading of the bill in the Dewan Rakyat,” said the women and children’s PSC.
In its recommendations tabled in Parliament after the tabling of the tobacco bill for first reading last Wednesday, the health, science and innovation committee chaired by Bandar Kuching MP Dr Kelvin Yii (DAP) recommended no criminalisation of individual consumer possession.
The health PSC had also recommended delaying implementation of the GEG by three years to the 2008 – rather than 2007 – generation, besides calling for two mandatory reviews of the tobacco control law spanning three and 10 years each.
Today’s statement by the women and children affairs and social development PSC, as well as the recommendations by the health, science and innovation PSC, were issued by all members of each respective committee.
Besides chairwoman Azalina, the women’s PSC comprises:
- Hasan Arifin (Rompin-Umno)
- Rubiah Wang (Kota Samarahan-PBB)
- Che Alias Hamid (Kemaman-PAS)
- Ahmad Tarmizi Sulaiman (Sik-PAS)
- Fuziah Salleh (Kuantan-PKR)
- Fahmi Fadzil (Lembah Pantai-PKR)
- Alice Lau Kiong Yieng (Lanang-DAP)
- Hannah Yeoh (Segambut-DAP)
The health PSC, besides chairman Dr Yii, comprises:
- Abdul Azeez Abdul Rahim (Baling-Umno)
- Bung Moktar Radin (Kinabatangan-Umno)
- Mohd Redzuan Md Yusof (Alor Gajah-Bersatu)
- Lukanisman Awang Sauni (Sibuti-PBB)
- Wan Hassan Mohd Ramli (Dungun-PAS)
- Dr Lee Boon Chye (Gopeng-PKR)
- Yeo Bee Yin (Bakri-DAP)
- Dzulkefly Ahmad (Kuala Selangor-Amanah)