Generation End Game: Threshold Requirements for Justifiable Paternalism
Control of Tobacco Product and Smoking Bill 2022
The Generation End
Game
Most policies ratified under the World Health
Organization Framework Convention on Tobacco Control (“WHO FCTC”) relates
to regulatory control to reduce tobacco use. In recent years, there is a shift
from reduction of tobacco use to proposals for eradication of tobacco use for a
smoke-free world (“Tobacco End Game”).[1]
Among the more radical proposals was one from Singapore - ‘the Tobacco Free
Generation 2000’ that would deny tobacco supply to any citizen born on or
after a certain date (in that case 1 January 2000) (“the Generation End Game”)[2]
Since then, Singapore, Tasmania, (Australia), Guernsey (UK), Finland, New
Zealand and now Malaysia have proposed Generation End Game laws.
DR 29/2022 The GEG Bill
On 2 August 2022, Parliament debated DR 29/2022,
Control of Tobacco Product and Smoking Bill 2022, commonly referred to as the
Generation End Game Bill (“the GEG
Bill”). The GEG Bill proposes the criminalization of buying, using and
possession of tobacco products for those born on 1st January 2007 and
after (“the 2007 Generation”). The criminal prohibition applies not only
during their teens but continues into their adulthood. The prohibition applies
to the day they die even if they live to be a hundred. For this generation, the
choice to smoke or to quit the habit is abrogated permanently.
The GEG Bill is not only about criminalization of
tobacco use but also the infantilization of adults of this 2007 Generation. The government treats them as incapable of
making rational decisions to look after their own health, thus the government
like a good parent makes the decision for them. Fair-minded people will find this
absurd and unacceptable.
On the other hand, those born one day earlier,
31st December 2006 and before (“the 2006 Generation”) can
buy, use, possess and smoke to their hearts’ content until their dying day
without restrictions, penalties, or molestation. They retain their moral
autonomy to smoke or to quit the habit.
Since there is no valid reason for the
different treatment of the two generations, this is an arbitrary age
discrimination.
Means as Important as Ends
I do not smoke. I do not want my children or their
generation to smoke.
I also want a smoke-free world. However, for
me, the means is as important as the ends. Freedom from state harassment is
equally valued as public health. If the use of the state’s coercive powers to
prohibit a generation from smoking cannot be justified, the fall-out will set
back public acceptance for more practical and less radical Tobacco End Game
strategies.
Saving Lives
Health Minister, Khairy Jamaluddin’s rallying
cry for the GEG Bill is “Let’s save some lives.” This must
be weighed against the harsh reality that the GEG Bill is taking away their
liberty and their freedom to choose. They are subjected to a lifetime of living
in fear of prosecution, state harassment in being stopped and searched,
extortion, loss of privacy and the stigma of a criminal record for smoking.
Their lives may be saved but are they any
longer having a life worth living? Is it acceptable for those in this 2007 Generation,
who do not even smoke, to be subjected to the same risk of harassment as those
who do? Who made MPs - “Gods”- with powers to condemn a whole generation to a
lifetime of misery and fear?
For the reasons stated in this article, I welcome
the GEG Bill being referred to the Parliament Select Committee (“PSC”)
for review. It is hoped that the PSC can rework the GEG Bill to meet the
threshold requirements for justifiable paternalism or else consider alternative
Tobacco End Game strategies.
Paternalism
The idea that governments may use its coercive
powers to change personal behaviour of individuals without their consent is
called paternalism. Paternalism offends a fundamental principle of democratic
society – the individual is the best judge of his or her own personal
behaviour.[3]
The individual must be able to exercise his or her freedom of choice to
cultivate and develop moral autonomy. Where government intervenes in people’s
lives, taking away their ability to make their own choices, it undermines their
ability to learn from their mistakes, to develop as morally responsible
citizens and to acquire the ability to responsibly manage risks. It inevitably
leads to dependence on government and diminishes self-reliance.
The Harm Principle
The only exception to
the principle of freedom of choice for allowing paternalistic policies is to
prevent harm to other people. This is John Stuart Mill’s “harm principle” enunciated in his treatise “On Liberty.” According to Mill when people are considered
incompetent or incapable of making decisions in their own interest, the harm
principle permits paternalistic intervention. For many scholars and
philosophers, the harm principle is the only legitimate ground for
paternalistic intervention by the State.
Health Minister
Khairy Jamaluddin contends in his winding-up speech that the harm principle is
satisfied. In response to his first contention on the harm to third parties by
second hand smoke, this is addressed by confining smoking to restricted areas. His
second contention the protection of the 2007 Generation from self-harm is
tenuous. The Minister argues that the 2007 Generation is incapable of making a
rational decision to stop smoking. He based this argument on the addictive
nature of nicotine. This argument is not convincing for the following reasons:
a. Nicotine
addiction affects only those who smoke, the non-smokers in this 2007 Generation
are not addicts. Therefore, there is no reason to hold that these non-smokers
are incapable of making rational decisions;
b. Many who
smoked for years have been able to stop smoking on their own volition. Not by
using nicotine replacement therapy or professional help. Just by the
individual’s firm resolve;
The harm principle has not been satisfied.
Threshold Requirements
for Justifiable Paternalism
The threshold
requirements for evaluating paternalistic intervention are discrimination,
proportionality and efficacy.
Unjustified Discrimination
The paternalistic
policy should only apply to those at risk from the harm. The government must
avoid interfering with the liberty of those not deemed to require protection.
There is no rational
reason why those born on 1 January 2007 are criminally prohibited from using
tobacco products while those born a day earlier can do so. The legal
distinction has no public health basis and not supported by scientific evidence
for the different treatment. Citizens once they have passed the age of consent
should not be treated unequally.
Passing this
discriminating law that targets those who presently cannot vote is not a
legitimate way of making laws. If there is to be a Generation End Game then
this decision should be made by the 2007 Generation when they come of age
because they are the ones affected. Those who suffer no consequences have no
business to impose sanctions on those who come after them.
The GEG Bill is bad
on the ground of age discrimination.
Proportionality
Paternalistic
intervention must be the minimum necessary to achieve the effect of protecting
those who are the subject of the policy. Paternalistic intervention must be
proportionate to the problem being addressed. This is not the case for the GEG
Bill.
Firstly, the enforcement
powers in the GEG Bill in respect of buying, use and possession of tobacco
products is disproportionate to the avowed objective of saving the 2007
Generation. Would possession of one stick of cigarette justify the following
actions[4]:
a) They are
subjected to being stopped, searched and their conveyance seized;
b) They,
including girls, are subjected to the embarrassment of body searches;
c) They are
subjected to enforcement officers entering into their premises by force;
d) Their
baggage, packages and containers may be opened and examined;
e) Access to
information and data in their computers and devices are to be provided
including password, encryption code, decryption code for software or hardware;
Secondly, penalties
for the offences are another problem. If
the penalties are too light, they will be ignored and the law will be
ineffective and fall into disrepute. If the they are too heavy, they will be
disproportionate to the offence. This is already shown by the amendments to the
GEG Bill in the reduction of fines from RM5,000.00 to RM500.00.[5]
Thirdly, the GEG Bill
is punishing the smallest actors (the foot soldiers) in the war against tobacco
use by imposing disproportionately hefty fines and heavy imprisonment terms on
them.
The punishment for
those who sell tobacco products to the 2007 Generation is a fine not exceeding
RM20,000 or imprisonment for one year or both.
For the second
offence the fine is RM30,000 and imprisonment for 2 years or both.
For body corporate
the fine is not less than RM20,000.00 and not exceeding RM100,000 or 2 years
imprisonment or both.
For second offence
the fine is not less than RM150,000.00 and not exceeding RM300,000.00 or 3
years imprisonment.
It appears that the
drafters of the GEG Bill may not have realized that those selling the tobacco
products are not the big tobacco companies. Those selling are the retailers.
Those at the bottom of the supply chain, eking out a modest living to make ends
meet.
The drafters are
shooting the cigarette vendors plying their trade at the five footways, the
mama and papa grocery shops, the mamak stallholders and coffee shop operators. For
the big tobacco companies, it will be business as usual: manufacturing,
importing and distributing tobacco products because it is still a legal
business to supply the 2006 Generation. This is impure paternalism. The class
of person being interfered with is the entire retail end of the industry which
are numerically far larger than the few 2007 cohort smokers.
The GEG Bill does not
meet the proportionality requirements.
Efficacy
Paternalistic
intervention can only be justifiable if there is a reasonable prospect that it
will be effective in terms of immediate results and improving the capacity of
the individuals to act autonomously over the longer term. Another important
consideration is whether the intervention may make matters worse.
The GEG Bill is of
doubtful efficacy for the following reasons:
a) The
prohibition and criminalization will lead to increased illicit market and
smuggling of tobacco products. The tobacco industry may be taken over by an
unregulated black market supervised by criminals, such as happened during the
alcohol prohibition in the United States from 1920 to 1933 under the Volstead
Act;
b) The
generation ban will likely be ineffective since the supply of tobacco products
are still legally available to the earlier generation of smokers;
c) There is
no scientific or other reliable evidence on the effectiveness of the GEG;
d) There is a
danger that the law will fall into disrepute. Prohibitions create opportunities
for corruption that all in Malaysia are unfortunately well familiar with;
Importance of
satisfying threshold requirements for Paternalistic Laws
The GEG Bill is not
the first and will not be the last paternalistic policy that the government
will be called upon to enact. There will be increasing calls for paternalistic
laws as more scientific evidence and greater knowledge become available of the
costs to individuals and society of certain forms of personal behaviour such as:
gambling, consumption of unhealthy food, alcohol abuse as with smoking tobacco.
There are already frequent
and loud calls for paternalistic laws in our multiracial and multi-religious
society to prohibit various personal behaviour, consumption of certain foods,
manner of dressing, activities, forms of entertainment and festivals. It is
important that the GEG Bill satisfies the threshold requirements for
justifiable paternalism. Otherwise, the lowering of threshold requirements will
open the floodgates to calls for the prohibition of various behaviour that
interferes with the privacy and autonomy of diverse groups. These are not
justifiable paternalistic policies but they will try to slip through under the
guise of public health.
Conclusion
As the WHO
Director-General said in the keynote address at the International Conference on
Public Health Priorities in the 21st Century: The Endgame for
Tobacco on 11 September 2013[6]:
“If all the harms
caused by tobacco were known earlier on, tobacco products would never have been
marketed and sold like any other consumer product.”
In considering
proposals to correct this grievous mistake, the WHO Director-General offered
the following advice on Tobacco End Games:
“… Fourth, recognize
the diversity of factors that drive the tobacco epidemic in different economic
and cultural contexts. These contexts also create their own unique barriers to
success. A diversity of endgame strategies, as opposed to a single global
strategy might be needed to accommodate these different contexts. Provision of
a menu of strategic and policy options might be another wise way forward.
Fifth, be realistic.”
It is hoped that both
the Health Minister and the PSC take into consideration our unique Malaysia
economic and cultural contexts when reviewing the GEG Bill. The Minister and
the PSC ought to accept the WHO-Director’s advice to look at a menu of
strategic options that may be more realistic and achievable that the arbitrary
banning of a generation from tobacco use.
William JK Leong
Member of Parliament Selayang
6th August 2022
[1]
Human Rights and the Ethical Considerations for a Tobacco-free Generation file:///C:/Users/USER/Downloads/tobaccocontrol-2013-051125.pdf
[2] Khoo D, Chiam Y, Ng P, Phasing-out
tobacco: Proposal to deny access to tobacco for those born from 2000 Tob
Control 2010: 19: 355-60 https://pubmed.ncbi.nlm.nih.gov/20876075/
[3] Paternalism
in social policy when is it justifiable – Parliament of Australia https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1011/11rp08
[4]
Part IX Sections 25 -40 GEG Bill
[5]
Amendment in Committee to GEG Bill
[6]
WHO Director-General considers the tobacco end game. Keynote Address 11
September 2013 https://www.who.int/director-general/speeches/detail/who-director-general-considers-the-tobacco-endgame
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