Vape bans: A response to R. Paneir Selvam — Hafiz Hassan

Malay Mail

5 days ago

JULY 22 — I refer to R Paneir Selvam's 'Vape bans: A slippery slope for legal governance'.
The July 2024 decision of the High Court referred to by the learned writer was the decision in the case of Lee Bak Chui & Ors v Kerajaan Negeri Kedah Darul Aman & Ors [2024] 11 MLJ 556
In that case, the applicants were the pool betting agents and aggrieved by the decision of the first respondent, the State Government of Kedah on the decision that the premise licences for the activities of the gambling business would not be renewed in the State of Kedah ('the said decision').
All the applicants then received letters from the respective Municipal Councils stating that it was agreed that the Ministry of Finance to not consider the renewal of gambling licences for the State of Kedah for the year 2023 since the licence fell within the purview of the Ministry of Finance and it was agreed that the Kedah State local authority and police should take strict enforcement action should there be any licence holders still in operation after December 31, 2022.
The applicants were informed of the said decision and were also informed that legal action would be taken if businesses were still carried out on the premises.
In their applications for judicial review of the said decision, the applicants argued before the High Court that the said decision was, among others, illegal and that the respondents had breached the applicants' legitimate expectation as provided under written law — that is, as long as the pool betting agents were licensed under Section 5 of the Pool Betting Act 1967, the applicants would be able to peacefully carry on their trade and business.
The applicants alleged that the respondents had acted more than their authority. Thus the application for judicial review of the said decision.
The learned High Court judge, Mahazan Mat Taib, allowed the application, ruling, among others, that the said decision was contrary to Article 80(1) read with Article 74 and Item 4(l) of the Federal List of the Federal Constitution.
Articles 74, 80(1), Item 4(l) of the Federal List and Item 4 of the State List are reproduced below:
Article 74 — Subject matter of Federal and State laws
(1) Without prejudice to any power to make laws conferred on it by any other Article, Parliament may make laws with respect to any of the matters enumerated in the Federal List or the Concurrent List (that is to say, the First or Third List set out in the Ninth Schedule).
(2) Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.
(3) The power to make laws conferred by this Article is exercisable subject to any conditions or restrictions imposed with respect to any particular matter by this Constitution.
(4) Where general as well as specific expressions are used in describing any of the matter enumerated in the Lists set out in the Ninth Schedule the generality of the former shall not be taken to be limited by the latter.
Article 80 — Distribution of Executive powers
(1) Subject to the following provisions of this Article the executive authority of the Federation extends to all matters with respect to which Parliament may make laws, and the executive authority of a State to all matters with respect to which the Legislature of that State may make laws.
No smoking and no vaping warning displayed in food store in Puchong. — Picture by Choo Choy May .
Item 4(l) Federal List
Civil and criminal law and procedure and the administration of justice, including — (l) betting and lotteries.
Item 4 State List
Local government outside the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, including — (a) Local administration; municipal corporations; local, town and rural board and other local authorities; local government services, local rates, local government elections; (b) Obnoxious trades and public nuisances in local authority areas.
After setting out the above provisions, the learned judge said:
'An important point to note is that the words 'with respect to' in Article 74 must be interpreted with extensive amplitude. The cardinal rule of interpretation is that the entries in the legislative lists are not to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it.
'The widest possible construction, according to the ordinary meaning of the words in the entry, must be put upon them. In construing the words in a constitutional document conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in widest amplitude.
'It is also well settled that the phrase 'with respect to' appearing in Article 74(1) and (2) of the Federal Constitution — the provision conferring legislative power upon the Federal and State Governments respectively — is an expression of wide import. As observed by Latham CJ in Bank of New South Wales v The Commonwealth:
'A power to make laws 'with respect to' a specific subject is as wide a legislative power as can be created. No form of words has been suggested which would give a wider power. The power conferred upon a Parliament by such word ... is wide.'
'Another equally important point to note is that the function of the entries in the Legislative Lists in the Ninth Schedule is not to confer powers of legislation, but merely to demarcate the fields in which legislative bodies operate. As summarized by the Federal Court in Gin Poh Holdings Sdn Bhd (in voluntary liquidation) v The Government of the State of Penang, the principles applicable to the interpretation of entries in the legislative lists as follows:
(a) the entries in the legislative lists do not confer legislative power. Rather, they are broad heads or fields of legislation to demarcate the respective areas in which Parliament and the State Legislature may operate;
(b) the entries must be interpreted liberally with the widest amplitude, and not narrowly or restrictively. Each entry extends to all ancillary and subsidiary matters which can fairly and reasonably be said to be comprehended in it;
(c) the rule of widest construction does not permit an entry to be interpreted so as to include matters with no rational connection to it or to override or render meaningless another entry;
(d) in the event of apparent conflict or overlap between entries, the court should attempt to reconcile the entries by adopting a harmonious construction; and
(e) in interpreting a particular entry, the court should confine its decision to the concrete question arising from the case, without pronouncing a more exhaustive definition than is necessary.
Accordingly, the entries in the Legislative Lists — that is, the Federal List, State List and Concurrent List (List I, List II and List III respectively) — in the Ninth Schedule to the Federal Constitution are not to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it.
Moreover, in the event of apparent conflict or overlap between entries, the court should attempt to reconcile the entries by adopting a harmonious construction.
The rule of widest construction does not permit an entry to be interpreted so as to include matters with no rational connection to it or to override or render meaningless another entry.
So, even though the first respondent had the Executive authority on the matter of local authority in relation to the licensing of premises for gambling, the said decision (to cease the renewal of premise licence for gambling) in effect rendered Item 4(l) of the Federal List on betting and lotteries meaningless.
The legislative authority of the State cannot be extended to banning betting and lotteries under the subject matter of licensing of premises for gambling.
Otherwise, it would be including a matter which overrides or render meaningless the entry in Item 4(l) of the Federal List.
Pool betting and lotteries are matters under Item 4(l) of the Federal List and not under the State List.
Therefore, the court was duty bound to interfere, and the application for judicial review ought to be granted on the ground of illegality.
Now, it is humbly submitted that R Paneir Selvam fell into error by seemingly listing vape as a matter under the Federal List only.
It is not.
Vape should be a matter under public health, which is a matter under Item 14 of the Federal List as well as Item 7 of the Concurrent List. It is therefore a matter which the Legislature of a State has power to make laws by reason of Article 74(2) of the Federal Constitution.
In other words, the legislative authority of the State can be extended to the subject matter of licensing of premises to regulate the sale, advertising, and promotion of all smoking products, including e-cigarettes and vapes, with a focus on preventing access by individuals under 18.
This despite the federal law, the Control of Smoking Products for Public Health Act 2024 (Act 852) referred to by the learned writer.
The primary goal of Act 852 is to reduce and prevent the use of tobacco and vape products, particularly among minors, and to safeguard public health and the environment.
The explanatory notes of Act 852 in fact states that the enforcement of the Act is the responsibility of the Ministry of Health with support from local authorities. (Read the comments by Health Minister Dr Dzulkefly Ahmad here)
A short response to R. Paneir Selvam is this: vape bans do not stand on the same legal footing as pool betting and lottery bans.
*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.