By Khairul Khalid
The Johor Sultan’s royal decree on the ban of electronic cigarettes or “vapes” splits opinion. Does the monarchy have power to intervene in public health issues or should it be decided purely by legislative due process?
Sultan Ibrahim Sultan Iskandar of Johor has ordered an outright ban on the sale of the popular electronic cigarettes known as “vapes” in the state by the beginning of next year.
The outspoken royal may have his heart in the right place, citing the potential health hazards of vapes as the main reason for the ban. But is the Johor Sultan again overstepping the boundaries of the monarchy and legislature?
The royal decree has come out of the blue. However, supporters of the ban say that the Sultan’s intervention is timely.
Sultan Ibrahim Sultan Iskandar
“I want the outlets to close down by Jan 1, 2016 and I do not want to hear any excuse. This is a question of health and its effects on young people. It has nothing to do with businesses and for sure it has nothing to do with race,” the Sultan said in an interview with The Star last week.
The Johor Sultan has reportedly ordered the state exco to convene soon to ensure that the ban is implemented.
The controversy over vapes has been threatening to boil over in the last few months. Its proponents argue that the electronic cigarettes is a cost effective way of gradually weaning smokers off their tobacco addiction.
The burgeoning market for vapes in Malaysia is also thriving, reportedly worth more than RM2 billion a year.
The pressure on tobacco companies has intensified. Market share has sharply eroded over the years due to multiple increases in cigarette prices, as well as a huge black market for cheap cigarettes. On the other hand, the government seems caught between vapes’ negative health implications and potential commercial growth.
The debate over vapes is still raging, but what makes the Johor Sultan’s decree worrying is not the health conundrum, but the overlapping functions of the state government and monarchy. Does the Sultan have the power to regulate business and health issues in the state?
No, according to constitutional law expert Abdul Aziz Bari, who claims that the state and federal governments have the final say in these matters.
“The Sultan as a constitutional monarch cannot just issue a decree banning vapes. Good or bad is not the issue here. As a constitutional system there are ways and means to do things,” said Aziz to Malaysiakini.
Basically, this means that the federal and state governments are the highest authorities to regulate public health issues, not the Sultan.
This is not the first time that the Johor Sultan is finding himself in a delicate situation with the state legislature.
Last year, the proposed Johor Housing Property Board 2014 Enactment that would have given the Sultan unprecedented executive powers, caused a widespread furore. The new housing board was touted as critical in solving the issue of affordable housing in the southern state.
The initial proposed bill including, among others, allowing the Sultan to appoint board members, determining allowances and remunerations, approve the appointment of the chief executive officer of the board, scrutinise accounts and dissolve the board.
It caused a commotion from both ruling and opposition parties, worried that the Sultan’s formal powers would usurp the state administrative function.
Even though the Johor Menteri Besar Mohamed Khaled Nordin had to pare down the original Bill, the prevailing perception is that the Sultan remains an immensely powerful figure in the state administration.
Dr Mahathir Mohamad
Even former prime minister Dr Mahathir Mohamad, a staunch royal critic, was adamant that the Johor Sultan should be kept out of the state administration completely.
“A constitutional monarch has no executive power. This means that he may not be involved in the administration of the country. This was considered necessary because in the past the Malay states were ruled by rulers with absolute power and the people were forbidden from being involved in politics.
“The result was that tracts of land were given to foreign countries, concessions given to foreign businesses, and finally independence was surrendered to the British under treaties lasting for as long as there is the sun and the moon,” said Mahathir in his blog.
Mahathir was a central figure in the 1983 constitutional crisis when he was prime minister.
Even if there is a constitutional basis for royal intervention, the Sultan’s decree on vapes is glaringly flawed for a couple of reasons.
First, if health is truly the primary consideration, why doesn’t the royal decree target the root of the problem and ban cigarettes too? Tobacco is clearly a much bigger threat on public health and resources.
Cigarettes have a much larger consumer base and the potential health hazards have long been irrefutable.
This has been acknowledged by all parties, including the tobacco manufacturers. The gruesome pictorial warnings on cigarette packs speak for themselves
Second, the public debate on vapes has already been set in motion. The federal government was already contemplating a possible ban on vapes anyway, or some restrictions on its sale, even before the Johor Sultan’s decree.
Should there be an outright ban on vapes? Or should they be treated in the same manner as cigarettes – with strict regulations and high taxes?
Either way, the difference of opinions on vapes should be allowed go through the tried and tested constitutional due process, by putting it through rigorous parliamentary debate and lawmaking.
Depriving the vape issue of due process could set a troublesome precedent.
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