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.