Eatery smoking ban stays

Group of seven challengers loses case at Court of appeal

PUTRAJAYA: Smoking in public is not a fundamental right that should be protected under the Federal Constitution, ruled the Court of Appeal.

A three-judge panel said this in its dismissal of an appeal by a group of smokers who sought to challenge the government’s smoking ban at eateries.

The panel, chaired by Court of Appeal judge Justice Yaacob Md Sam, unanimously dismissed the appeal by seven individuals – who had set up a society called Persatuan Pertahankan Perokok (PHP) – during online proceedings here yesterday.

Two other judges on the panel were Justices M. Gunalan and Lim Chong Fong.

Justice Gunalan, who read out the decision, said the Health Minister was empowered under the law to impose various restrictions on smoking such as where smoking was to be prohibited or when.

The panel also upheld that the smoking ban at eateries and restaurants could not be considered as being in violation of Articles 5 and 8 of the Federal Constitution.

“We agree with the learned (High Court) judge’s interpretation that the act of smoking in public places is not a fundamental right that ought to be protected under the Federal Constitution.

“As the ban applies to all persons and patrons, the issue of discrimination, if in fact it arises at all, does not infringe Article 8 of the Federal Constitution,” he said.

The judge also said they found no error of law or fact or failure of judicial appreciation by the High Court judge in arriving at her decision to dismiss the appellants’ judicial review application.

“Hence, there is no grounds for us to disturb or interfere in the decision of the learned judge. We accordingly dismiss this appeal and uphold the decision of the learned judge,” Justice Gunalan added.

The court did not make any order as to costs.

On Oct 29, 2019, the Kuala Lumpur High Court ruled that the smoking ban at all eateries imposed by the Health Ministry did not breach the people’s right to liberty and equality.

Justice Mariana Yahya said the respondent had taken into account public interest factors in enforcing the ban to protect the public, including infants, from the danger of smoke from cigarettes.

On Feb 29, 2019, the seven-man group filed a judicial review application, naming the Health Ministry as the sole respondent.

They 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 PHP supporters.

In their application, they claimed the smoking ban contradicted the Federal Constitution as smoking was not a criminal activity and was not banned in the country.

They claimed that smokers had equal rights as non-smokers when visiting eateries and spending as much time as they wanted 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.

“...smoking in public places is not a fundamental right that ought to be protected...” Justice m. Gunalan