Court rejects bid to challenge smoking ban at food premises

KUALA LUMPUR, Oct 29 -- A bid by seven individuals to challenge the Health Ministry’s smoking ban at food outlets, enforced since Jan 1 this year, failed after the High Court here today dismissed their judicial review application.

Judge Datuk Seri Mariana Yahya dismissed their application on grounds that the Health Ministry had acted within its jurisdiction and that the enforcement of the smoking ban did not breach Articles 5 and 8 of the Federal Constitution.56

She said the applicants were wrong to say that their rights to smoke cigarettes would be violated with the ban on cigarette smoking.

The applicants 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 named the Health Ministry as the sole respondent.

In the judgment, Mariana also said the respondent had taken into account public interest when it set a distance of three metres away from the food premises for smoking patrons to take their puff.

“They can still smoke outside of the three metre radius from the dining area and it is the responsibility of the smokers to ensure the cigarette butts are thrown at the place provided.

“Therefore, the claim by the applicants that their rights have been violated with the smoking ban is baseless,” she added.

On the issue that cigarette smokers were not consulted prior to the enforcement of the smoking ban, Mariana said it was the prerogative of the respondent.

She said efforts to enforce the smoking ban at food premises was carried out by the Health Ministry since 2004 during which discussions with various quarters were held prior to its enforcement this year.

The Health Ministry, she said , also stated in its affidavit that the public was invited to provide feedback on the proposed ban and was given until May 18, 2018 to do so.

“However, none of the applicants gave their feedback or objected to the proposed implementation,” she added.

She dismissed the application with no order to cost.

In the application filed on Dec 31, 2018, the seven men claimed that the ban went against the Federal Constitution as smoking was not deemed a criminal activity or banned in the country.

They claimed that smokers had equal rights with non-smokers to visit and spend their time in food premises for as long as they wished.

They further claimed 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.

The applicants also claimed that the government did not provide adequate facilities such as smoking areas, nor included provisions under the smoking ban for entrepreneurs to prepare their own non-smoking areas.

The Health Ministry had imposed the smoking ban at all restaurants and food premises beginning Jan 1, with a focus on educating the public till June this year.

However, in April, the educational enforcement period was extended until the end of the year.

Meanwhile, lawyer Mohamed Haniff Khatri Abdulla, who represented the seven applicants together with lawyer Datuk M. Reza Hassan, said his clients would file an appeal against today’s decision.

Senior federal counsel Shamsul Bolhassan appeared for the Health Ministry.

-- BERNAMA