29 October 2019
KUALA LUMPUR: The High Court today upheld the smoking ban in all eateries imposed by the Health Ministry early this year, saying the ban did not breach the people’s rights to liberty and equality.
Judge Datuk Seri Mariana Yahya said the respondent (Health Ministry) had taken into account public interest factors in enforcing the ban to protect both public including infants, from the danger of smoke from cigarettes.
She said the ministry was rational in setting the three-metre distance from any table or chair which is placed for the purpose of preparing, serving or selling food in eateries for smokers to light up.
“The court is of the view that the issue of irrationality does not arise,” she said.
On the issue raised by the applicants (smokers) of not having the opportunity to express their opinion on the legislation to ban smoking, the judge said it was up to the respondent’s (Health Ministry) discretion to run a public consultation or not.
She said the effort to enforce the ban followed a series of discussions which took a total of 15 years, from 2004 until 2019.
“The court is of the view that the decision to ban smoking in eateries does not contradict Article 5 (right to liberty) and Article 8 (right to equality) of the Federal Constitution.
“The court therefore dismisses the application with no costs,” she added.
Counsel Mohamed Haniff Khatri Abdulla who acted for the seven smokers said he would appeal against the decision.
Senior federal counsel Shamsul Bolhassan represented the Health Ministry.
On Feb 29, seven people filed a judicial review application, naming the Health Minsitry as the sole respondent.
The seven were Mohd Hanizam Yunus, 52, Zulkifli Mohamad, 56, Mohd Laisani Dollah, 46, Mohd Sufian Awaludin, 35, Ridzuan Muhammad Noor, 52, Mohd Yazid Mohd Yunus, 48, and Yuri Azhar Abdollah, 39. They filed the application in their capacity as pro-tem Pertahankan Hak Perokok (PHP) supporters.
In their application, they claimed the smoking ban contradicts the Federal Constitution as smoking was not a criminal activity and it was not banned in the country.
They claimed that smokers have equal rights as non-smokers when visiting eateries and spend as much time they want there.
They contended that the smoking ban ran contrary to the provisions and principles of law and or went against procedures, as the respondent was never reported to have met smokers or stakeholders to discuss the enforcement of the ban beforehand.
Representatives from the Federation of Malaysian Consumers Associations (Fomca), MyWATCH (Malaysian Women’s Action for Tobacco Control and Health), and other anti-smoking non-governmental organisations were also present during the proceedings to show their support.
29 January 2019
A group of seven smokers, calling themselves supporters of the Pro-Tem Pertahankan Hak Perokok (PHP, or Smokers’ Rights Club) today obtained leave to initiate a judicial review to challenge the smoking ban at all eateries enforced by the Health Ministry on Jan 1 this year.
High Court judge Azizah Nawawi made the decision in chambers when the case came before her for mention.
However, lawyer Mohamed Haniff Khatri Abdulla, representing the seven individuals, said the court dismissed his clients’ application for an order to suspend the smoking ban, on grounds that the court had no jurisdiction to suspend a decision that involved a legal operation.
The application to suspend the ban was also deemed irrelevant, as the Health Ministry had issued a notice that enforcement of the ban would be implemented after six months, Haniff told reporters when met after today’s proceedings.
The court set Feb 12 for further case management.
The seven individuals are Mohd Hanizam Yunus, 52, Zulkifli Mohamad, 56, Mohd Laisani Dollah, 46, Mohd Sufian Awaludin, 35, Ridzuan Muhammad Noor, 52, Mohd Yazid Mohd Yunus, 48, and Yuri Azhar Abdollah, 39.
They filed the ex-parte application at the High Court Registrar’s Office and named the Health Ministry as the sole respondent.
In the application, they claimed the smoking ban is a breach of the Federal Constitution because smoking is not a criminal activity and is legally valid.
They also stated that smokers have equal rights to non-smokers when they visit restaurants or other eateries, and that the government did not provide alternative locations for them to smoke.
Those who smoke constructively are pushed aside and discriminated from patronising eateries with the ban, they said, adding that the ban is against the law and not according to procedure as no discussion was held by the ministry with smokers.
The group added that the government also did not allocate alternative venues or provide allocations for operators of eateries to allocate a special area for smoking.
They are seeking a certiorari order to quash the Health Ministry’s decision on the smoking ban, and a declaration that its enforcement was unconstitutional.
The Health Ministry was represented by senior federal counsel Shamsul Bolhassan.