KUALA LUMPUR, July 29 – Children and teenagers born after 2007 will be subject to harsh enforcement under the Control of Tobacco Product and Smoking Bill 2022 for the offences of smoking or vaping, or possessing tobacco or vape products.
Part 9 titled “Enforcement” of the tobacco control bill, which was tabled for first reading in Parliament Wednesday, spells out wide enforcement powers by authorised officers, such as the power to access personal data that requires the user to give up the password on their devices; to open one’s bag; to stop and search a vehicle; and to forcibly enter one’s home for search and seizure, with or without a warrant, that includes body searches.
These enforcement powers do not specify the offence for which they apply to. This means that the prohibited act of smoking or vaping, or possession of cigarettes or vape devices or e-liquids by anyone born from January 1, 2007 – defined as an “offence” under Section 17 – would be subject to enforcement.
Section 34 empowers authorised officers to get access to “any recorded information or computerised data, whether stored in a computer or otherwise”. Owners of such data are required to provide enforcement officers access by giving up their password.
Authorised officers may also make copies of the data or take extracts. Section 34 does not state if suspicion of an offence is necessary to exercise this power.
Section 30 stipulates that an authorised officer “may” open any bags, package, containers to examine any tobacco or vape products “for the purposes of this Act”, without specifying any particular suspected offence.
Section 31 empowers an authorised officer to stop and search a vehicle that is suspected of carrying any tobacco or vape products in relation to a suspected “offence under this Act”. Non-compliance with a stop and search order is punishable with a fine not exceeding RM10,000, imprisonment of up to one year, or both.
Section 32 empowers an authorised officer to get a warrant from a magistrate for search and seizure within “any premises” upon suspicion of an “offence under this Act” that can be conducted forcibly, including breaking open doors or gates.
“Premises” are defined as “any building or tent or any other structure, permanent or otherwise together with the land on which the building, tent or other structure is situated and any adjoining land used in connection therewith”.
An authorised officer conducting a search of the premises may also conduct a body search; only same-gender body searches are permitted.
Despite Section 32, Section 33 allows authorised officers to conduct search and seizure without a warrant.
Section 26 of the tobacco bill empowers authorised officers to “enter any premises at any reasonable time” to inspect tobacco products, vape juices, or vape devices “for the purposes of this Act”.
The government’s proposed standalone tobacco control Act does not only prohibit the sale of cigarettes, tobacco and vape to the next generation, but also criminalises individual consumer purchase, use, and possession of such products, including smoking or vaping, by those born from 2007 with a maximum RM5,000 fine.
MPs are expected to debate the Control of Tobacco Product and Smoking Bill next Monday that Health Minister Khairy Jamaluddin has dubbed as a “generational end game” (GEG) law.
Article 40 of the United Nations’ Convention on the Rights of the Child (CRC), of which Malaysia is a signatory, states that governments must establish a minimum age below which children shall be presumed not to have the capacity to infringe penal law.
Yet, the Control of Tobacco Product and Smoking Bill — which criminalises smoking or vaping, as well as personal possession or purchase of tobacco or vape products by those born from 2007 — does not have a provision on a minimum age below which children shall be presumed not to have the capacity to commit these offences.
Article 16 of the CRC protects a child from “arbitrary or unlawful interference with his or her privacy, family, home or correspondence”, as well as “unlawful attacks on his or her honour and reputation”. As Malaysia does not have reservations to Article 40 and Article 16 in the global treaty, the government is obligated by international law to uphold them.
New Zealand, which is similarly seeking a smoke-free generation, however, does not criminalise smoking or personal possession of cigarettes by those born from 2009.
New Zealand’s Smoke-free Environments and Regulated Products (Smoked Tobacco) Amendment Bill only prohibits the sale, delivery, and supply of smoked tobacco products to anyone born after 2009.
Violations are punishable only with a fine, without any jail sentence, unlike Malaysia’s bill that proposes penalties of up to three years’ jail for the sale of tobacco or vape products to those born from 2007.
New Zealand’s bill also does not provide for wide enforcement powers, simply stipulating that an enforcement officer “may” require identifying information with respect to smoked tobacco products that are suspected of being sold to the next generation or to minors below 18.
New Zealand’s proposed legislation also empowers an enforcement officer to get a copy of records, but only for records of transactions by a manufacturer, importer, exporter, distributor, or retailer of a regulated product.