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Friday, January 8, 2016

Lawyers: States have no jurisdiction to ban vaping

KUALA LUMPUR - Lawyers have questioned the enforceability of the fatwa-based ban on vaping in Negri Sembilan, Malacca and Pahang, noting that health is under federal, not state jurisdiction, and that the Islamic edict has yet to be gazetted.

Civil liberties lawyer Syahredzan Johan said a national fatwa edict is not binding to states unless the religious edict is gazetted under the state.

“For them to enforce such a ban, the state fatwa committee must have a fatwa gazetted and it would come under the Shariah Criminal Offences Act,” he told Malay Mail Online.

Alternatively, the state could come up with its own legislation through the state assembly but this would be problematic as matters pertaining to health comes under the federal government, according to the lawyer.

“Under the Ninth Schedule, issues relating to health comes under the federation,” he said, referring to the Federal Constitution.

States can merely regulate operating licenses for vape traders, said Syahredzan.

Law lecturer Dr Azmi Sharom said if Malacca wanted to ban everyone from vaping, then it needed to be done through a civil law.

“But, that would be muddying the waters because the ban itself is based on an Islamic proclamation,” he told Malay Mail Online.

Shariah lawyer Nizam Bashir said that the national fatwa is merely an “opinion”, but that states can make the fatwa part of the law by passing state fatwas instead.

He also said that there are “a number of grounds” under which the bans can be challenged.

“In the absence of the medical report by the Health Ministry concerning health effects, arbitrariness would be one issue,” he said.

The Health Ministry said previously that it would undertake a study on the harms of vaping.

However, Health Ministry Director General Datuk Dr Noor Hisham Abdullah told Malay Mail Online that Putrajaya is still sticking to its earlier decision, made in Cabinet last October, to only “regulate” vaping.

States that have imposed the ban on the sale of vape products from January 1 are Kelantan, Penang, Kedah, Johor and Terengganu.

The Malacca state government announced earlier this week a total ban on vaping in accordance with a National Fatwa Council edict that declared vaping as “haram” (forbidden) for Muslims, but has yet to set the effective date of the prohibition.

Negri Sembilan took a slightly different approach, allowing vape sales to continue but only banning the usage of electronic cigarettes among Muslims.

National news agency Bernama reported the Pahang Fatwa Committee yesterday as banning Muslims from vaping, with Pahang Islamic Religious and Malay Customs Council president Tengku Abdullah Sultan Ahmad Shah reportedly saying that those who go against the ban will be “punished severely”.

By Ram Anand and Mayuri Mei Lin

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