The Malaysian Council for Tobacco Control, the Malaysian Green Lung Association and Voice of the Children are seeking a judicial review to quash the removal of liquid and gel nicotine from control under the Poisons Act 1952, gazetted by the health minister in an order on March 31.
In the alternative, they want a declaration that the impugned exemption is void.
The application, filed by solicitors Kanesalingam & Co in the High Court here last Friday, named health minister Zaliha Mustafa and the government as respondents.
The applicants say the minister did not adequately consider the views of the Poisons Board, and failed to engage with it, despite the board’s unanimous vote against the exemption.
They also said the minister had acted illegally, irrationally, and with procedural impropriety.
“Her (Zaliha’s) actions were also disproportionate because the minister, who was under a duty to protect public health, had in fact failed in that duty and instead prioritised revenue collection,” they said.
The applicants said, the minister’s actions had harmed public health, particularly children who are the most vulnerable in society.
They said the impugned order, made under section 6 of the Act, is ultra vires Article 66 of the Federal Constitution which exclusively reserves for Parliament the power to make laws. It is also beyond the scope of the powers delegated by Parliament to the minister, they added.
The applicants challenged the rationale for the minister’s decision to grant the impugned exemption as being ultra vires the Poisons Act.
“The ability to impose customs duties or to monetize a poisonous substance is not a permissible or rational reason to remove an otherwise poisonous substance from the list of poisons,” they added.
They said the impugned exemption allows vaping and electronic cigarettes with nicotine to be freely sold to children, which went contrary to the ministry’s own stated policy objectives.
Further, they said the impugned exemption is contrary to Malaysia’s international commitments, and in breach of the legitimate expectation of the Malaysian public that the minister would act in accordance with international norms.
Malaysia signed the World Health Organization Framework Convention on Tobacco Control in 2003 and became a party on Sept 16, 2005, shortly after the convention came into force.
The applicants said Malaysia has also been a party to the Convention on the Rights of the Child (CRC) since 1995, which requires that the best interests of the child be a primary consideration.