Wilson Tay defends the constitutionality of the Johor Sultan’s comments on vaping in Johor
It is important to understand that the statement by the Sultan of Johor on the closure of vape outlets in Johor, as originally reported at the Star online is not, by itself, against the Federal Constitution or the practice of constitutional monarchy in Malaysia.
As the original news report makes clear, it was merely a statement made in the context of an interview with The Star, and the Sultan has referred the matter to the State Executive Council for implementation. This in fact shows a sophisticated understanding of the lawmaking process in Johor (and the Federation generally), where most primary and secondary legislation originate from the Executive Council and are merely rubberstamped by the government majority in the Legislative Assembly whenever necessary – contrary to the common (but inaccurate) idea that “the legislature legislates and the executive executes the law.”
Although “medicine and health” and “poisons and dangerous drugs” are within the Federal legislative competency, “local government“, “local administration” and “obnoxious trades in local authority areas” are matters of State legislative competency [See the Federal Constitution, Ninth Schedule, List I, Item 14 and List II, Item 4]. Johor would therefore be within its constitutional powers to enact local authority regulations prohibiting the licensing of vaping businesses in the State, in compliance with the Sultan’s stated wishes.
Furthermore, “public health” and “the prevention of diseases” are matters of Concurrent legislative competency [Ninth Schedule, List III, Item 7]. This is another possible avenue for the State Exco and the State Assembly of Johor to explore the enactment of relevant legislation restricting the vape business.
It is too early to say whether affected businesses would be able to bring judicial review proceedings against any such legislation (primary or secondary) that Johor may issue in the near future. Suffice to say, at this stage, that Johor does not appear to be without good constitutional basis for taking such measures, and any legal challenge to these measures would have to meet the relatively stringent tests laid down in the law of judicial review for such matters.
It is also incorrect to describe the Sultan’s statement as a “decree“, which has perhaps caused undue anxiety about the practice of constitutional monarchy in Malaysia. A “decree” is something that carries legal force in and of itself (like an Emergency Ordinance under Art.150(2B) of the Federal Constitution). It can be enforced without further measures. Were the Sultan to begin issuing “decrees” in the real sense, that would be a true problem for the practice of constitutional monarchy and the rule of law, not only in Johor but indeed in the Federation generally.
As it is, however, His Royal Highness did nothing of the sort. Reading the news report, it is clear that the Sultan’s statement was merely the expression of an intention that the elected State Government pursue a particular course of action. It is, of course, true that the Sultan’s public announcement is likely to strongly influence the deliberations of the State Exco and the State Assembly, and on this particular issue it is probable that both would give effect to the Sultan’s wishes. But this does not guarantee that on a future issue of different political importance the elected State Government would always give in to the wishes of the Sultan, nor does it establish a precedent or a convention to that effect.
The English constitutional scholar Walter Bagehot once wrote that the constitutional monarch has three rights – “the right to be consulted, the right to encourage, and the right to warn“. Of course, in the Malaysian context the hereditary Rulers in fact have more powers and prerogatives within the constitutional system than the British Monarch has within Hers, but even if we adopt Bagehot’s limited characterization, the Sultan’s statement as reported has not gone beyond the second of these rights – the right to encourage the pursuance of a particular policy.
The only drawback in this is the classic problem of constitutional monarchs becoming too closely and publicly identified with day-to-day administrative policies – the monarch may become exposed to legitimate political criticism from opponents of these policies, with the attendant damage to the prestige and respectability of the royal institution that may result. That is why constitutional monarchs are usually well advised to remain “above politics“, at least as far as the public eye is concerned. However, the situation in contemporary Malaysia is also complicated by the lack of responsible leadership and accountability from certain elected politicians, as referenced in the news report. This may explain why the Sultan decided that HRH needed to “lead from the front“, this time yet again in a very public sort of way.
I make no comment on the practicality or enforceability of any State-level “ban” on vaping in Johor, given that (a) like the Schengen Area, the Federation has open borders between the peninsular States and (b) even where there are border controls, enforcement does not seem to have a great track record, as shown by the rampant trade in illicit/counterfeit cigarettes from neighbouring countries. The above is merely a comment on the constitutional implications of today’s announcement.
If anything, this episode shows why the workings of the contemporary Malaysian constitutional system continues to be a dynamic and fascinating area of research and exposition.