See Chee How
KUCHING: The federal government’s smoking ban at all eateries effective Jan 1 next year should be considered a matter under ‘public health’ which falls under the Federal List or State List in the Ninth Schedule of the Federal Constitution.
This was pointed out by Batu Lintang assemblyman See Chee How, who said neither the federal nor the Sarawak government has exclusive legislative authority and sole responsibility to determine policy and exercise administration over the matter, to the exclusion of the other.
“The specific details of the regulations and the scope of the ban on smoking in public eateries, enacted to enforce the new policy, have yet to be revealed and publicised.
“But in my opinion, the smoking ban should be considered a matter under ‘Public Health’ which is a subject matter under the Federal List or State List in the Ninth Schedule of the Federal Constitution,” he said in a statement to The Borneo Post yesterday in response to Local Government and Housing Minister Datuk Dr Sim Kui Hian’s statement on Sunday that the new policy “does not apply to Sarawak unless the Sarawak government adopts it”.
At present, ‘Public Health’ is a subject matter listed as Item 7 under the Concurrent List in the Ninth Schedule of the Federal Constitution.
See said both the Parliament and the respective state legislative assemblies have the authority to make laws and exercise control over the same matter.
However, Article 75 of the Federal Constitution provides that the federal law shall prevail over the state law, to the extent of the inconsistencies, he said.
“As a subsidiary legislature enacted under the federal law, the provisions on ‘smoking ban at public eateries’ have the force of law and it is applicable throughout the country after they are signed by the federal Ministry of Health (MoH) and the relevant regulations are gazetted.
“It is not disputed that the state authority may, through the Local Authorities Ordinance, enact legal and regulatory provisions to administer and control smoking at public eateries, but they must now be consistent with the federal provisions, unless it is expressly provided that those federal subsidiary legislatures are not applicable in Sarawak,” explained the state Parti Keadilan Rakyat (PKR) vice chairman.
In the interests of the states, See said there are numerous other safeguards and conditions on the application of federal enactments upon the respective states, one of which is the requirement to consult the state authority.
“In this case, it is understood from the statement by MoH released last month that all the respective states were involved in the more than 60 consultative meetings and briefings carried out over the last five months.
“It calls for the state minister and his officials who had attended the consultative meetings and briefings to clarify whether the state had registered his or their protests and reservations and declared that Sarawak be excluded and/or exempted from the enforcement of those new regulations,” See said.
Reiterating that ‘Public Health’ is an item under the Concurrent List, he said it calls for consultation and collaboration of the federal and state governments to ensure that the matter is given its due necessary consideration for the greater benefits of the country and all her citizenry.
“It may be a case of stretching the autonomous power too far by insisting that Sarawak will not implement the federal policy of ‘smoking ban at public eateries’ because it is formulated by the federal, even though it is enacted for the greater good of all Malaysians,” asserted See.
As such, he urged the Sarawak government and Dr Sim to engage the MoH to discuss the implementation of the policy, taking into consideration the local Sarawakian conditions.
“Naturally, the provisions can be better and more effectively enforced with the cooperation and collaboration of the officers from both the health department and the local government authorities,” he added.
See pointed out that the beauty and working of a federal system of government is the sharing of public administrative responsibilities for the greater interests and benefits of all the citizens in the federation.
He said it involves the collaboration and engagement of the federal government with the component state governments.
In Malaysia, the division and sharing of powers between the federal and the state governments is laid down in the Federal Constitution.
“Hence, the policy-making and the enforcement and execution of the policies are governed by the provisions in the Federal Constitution,” added See.
He also shared some graphics provided by the MoH with regard to the basic guideline of the new policy.