Uphold The Rule Of Law In Alcoholic Beverage Sales

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Local governments could not at their whims and fancies ban the sale of liquor and alcoholic drinks, even in majority Malay areas, as it was in contravention or ultra vires the Federal Constitution and specific federal laws.
There is already a specific Excise Duty Act 1976 (governing liquor sales) under federal law prohibiting the retail sales of any intoxicating liquor unless they have obtained approval or licensed under the said Act.
“Intoxicating liquor” includes any liquid containing more than two per cent of proof spirit.
The local government by-laws or regulations cannot bypass, supersede or overrule, or simply impose another condition on and above a federal licence approved under federal laws unless it is a matter not specifically governed and provided by another federal law.
In the case of “Perwaja Steel Bhd & Anor vs Majlis Daerah Kemaman” former Court of Appeal judge Mokhtar Sidin held that in the case of two conflicting laws, the provisions of the specific Act shall prevail over the provisions of the general Act and it was held as follows:
“ ..adalah jelas bahawa prinsip ‘generalibus specialia derogant’ adalah terpakai di negara ini. Dengan pemakaian prinsip ini maka peruntukan-peruntukan di dalam Akta am sekiranya berlawanan dengan peruntukan-peruntukan di dalam Akta khas maka peruntukan-peruntukan di dalam Akta Am itu disifatkan terbatal dan tidak terpakai.”
Federal law is clear
In this case, Section 32 (1) of the Excise Act specifically provides that “No person shall sell by retail, or offer for sale by retail, any intoxicating liquor whether for consumption on or off the premises of the vendor except under and in accordance with a licence issued under this Part and in a place specified.
Provided that nothing in this subsection shall apply -
(a) to the sale by retail of beer or toddy in unopened bottles having their proper seals and capsules intact or in unopened cans; or…”
This licence applied would generally come with conditions, including expressly prohibiting the sale of alcohol to minors and Muslims. 
Thus, restricting the sale of alcohol also impinges on the constitutional rights, freedoms and lifestyle choices of non-Muslims.
No state law or local by-law can trump federal laws and the Federal Constitution. Legally speaking, such bans or additional restrictions by local councils are invalid or in contravention of established legal principles and practices.
Not the first time
This comment is in response to the plans by the Ipoh City Council to expand its ban on the sale of liquor and alcoholic drinks, particularly in areas that are majority Malay.
There has been a ban since 2021 in Manjoi, a satellite town within Ipoh, followed by demands for the ban to be extended to Ulu Chepor, Rapat Setia etc.
I also recalled a similar experience in which I challenged the confiscation of beer from the 7-Eleven convenience store 20 years ago in Pahang in 2005.
The beverages were seized following complaints from Umno assemblypersons purely on grounds that they ought not to be sold in Malay-majority areas.
I had argued that there are no laws that prohibit the sale of alcoholic beverages in Malay-majority areas and even a sundry shop in a 90 percent populated Malay kampung have been selling alcoholic beverages below two percent in alcohol content.
My arguments were accepted by the state legal adviser then and the executive councillor in charge of religion then had also reiterated in the state assembly that under Islam, prohibitions to deal, trade, or consume alcoholic drinks are only confined to Muslims and non-Muslims have their liberty and choice to do otherwise. This statement is in the state assembly’s Hansard.
Where does it stop?
I am reiterating my arguments in 2005. There are already laws that forbid Muslims from purchasing or consuming such drinks. We must not succumb to political arm-twisting by quoting demographics as a political authority.
If alcoholic drinks are not allowed to be sold in Malay-majority areas, then the ban should be on the whole country as Malays are the majority in this country. Why selectively pick and choose based on politics? 
I called upon all elected representatives to uphold the rule of law and safeguard the constitutional rights guaranteed to all.
Thus, the licence holder should not be further restricted or penalised. Instead, enforcement should be focused on and against the buyer and outlets that sell alcoholic drinks without a licence. 
There should not be any blanket ban or restriction on licence holders based on areas or demographics.- Mkini
TI LIAN KER is former deputy youth and sports minister.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.

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