Think smoking is a constitutional right? Public health more important, lawyers argue

A no-smoking banner is seen at an eatery in Putrajaya January 3, 2019. ― Picture by Mukhriz Hazim
A no-smoking banner is seen at an eatery in Putrajaya January 3, 2019. ― Picture by Mukhriz Hazim

KUALA LUMPUR, Jan 6 — A bold lawsuit by a group for “smokers’ rights” against a nationwide smoking ban in public places last week has left some, including tobacco consumers themselves, asking: Is smoking actually a protected right?

Ahead of the inevitable clash in court, several lawyers weighed in on the case, telling Malay Mail that the Federal Constitution does not protect the right to smoke in public, and a ban cannot be deemed unconstitutional as it is in the interest of public health.

“This is a very bizarre lawsuit. There is no such guarantee, whether express or implied, of the right to smoke in public places in the Federal Constitution.

“There is also no right under the Constitution that allows individuals to pollute the air with cigarette smoke. It is impossible to understand how the ban can be unconstitutional,” Lawyers for Liberty executive director Latheefa Koya told Malay Mail.

She added that the prospect of the group winning its case therefore is low.

“Their argument that smokers will be isolated is absurd — because they can still visit and eat at all public eating places so long as they don’t smoke,” said Latheefa.

“Furthermore, it is the duty of the government to ensure that members of the public are protected from the harmful pollutants in cigarette smoke.

“The pernicious effects of second-hand smoke are scientifically well documented,” she added.

Civil liberties lawyer Syahredzan Johan explained the group can argue that the ban is a breach of fundamental rights — but he too remained unconvinced.

“It is a weak argument because in the first place, there is no fundamental right to smoke,” he said.

Despite that, the political secretary to DAP MP Lim Kit Siang said the group is still left with one recourse, on which to base its legal challenge: The basis of irrationality.

“It goes back to whether it is reasonable or not. That’s the only leg that they can stand on: Where there is a concept of irrationality.

“When you’re seeking a judicial review, that is the usual ground that you rely on — things like procedural impropriety,” said Syahredzan.

Can the three-metre rule be disputed?

Another aspect that is being derided by smokers is the three-metre distance rule between smokers and restaurants, with some claiming the rule lacks specifics. The Health Ministry has since said the distance is measured from the furthest table from a restaurant.

Despite that, Latheefa argued that the government does have the power to impose the rule to protect the public, despite claims of its apparent arbitrariness.

“This is my point: The government has the right to protect the public from cigarette smoke at eating places. So, the three-metre distance restriction is reasonable,” she added.

In addition, Syahredzan explained that the Control of Tobacco Product Regulations 2004 was recently amended in 2018, gazetted on December 24 last year, and came into force on January 1, to include said smoking distance.

“Now the interesting thing is this: The whole three-metre thing and all that, it’s already been there since 2013,” he said.

Under Regulation 21 — which is to be read jointly with Regulation 22 of Control of Tobacco Product (Amendment) Regulations 2018 — restaurant owners are also allowed to designate an area not exceeding one-third of the eating place that the public has access to as a smoking area.

“So, in those sorts of arguments — that it’s not following procedure, not following the law and all that — it is a bit difficult to challenge on this basis, on the part of the smokers,” Syahredzan said.

“If there is, for example, an outright ban on smoking everywhere, then maybe you have a chance, but because of the fact that it is within three-metres and all that, I think it is quite difficult for the smokers’ rights group to succeed on this basis.”

Might smokers see the ban overturned?

Despite sharing Latheefa and Syahredzan’s sentiments, Shariah and civil lawyer Nizam Bashir believes that the group may have a chance — especially when it comes to instituting a ban in all eateries.

“There are no locally reported cases affirming or rejecting that smoking is a right protected under Article 5 [of the Federal Constitution] as part of an individual’s right to life or personal liberty,” he explained.

“Proponents of the impugned regulations will say that the regulations are constitutional pursuant to a more emotive standpoint, that is the government’s move should not be seen in a vacuum but must be juxtaposed against definitive medical evidence that second-hand smoke causes serious diseases like lung cancer, coronary heart disease and premature death, as well as shortens life span.

“Nevertheless, in my personal view, the impugned regulations may be unconstitutional for not being proportionate, in that it seeks to prohibit smoking in ‘any eating place’ even those which are located outdoors,” he told Malay Mail.

Nizam said this is more so when the ban seems to contradict the abovementioned Regulation 21.

“That is, smokers can smoke if they are three metres away from restaurants versus what Regulation 21 actually permits — smoking in a smoking area not exceeding one-third of the area of the eating place,” he said.

Nizam cited a judgment from the Netherlands, which had initially prohibited smoking in all indoor public places but was later amended to permit a limited exception for cafes with a floor area of less than 70 square metres — after the initial ban was deemed illegal for violating the Framework Convention on Tobacco Control.

“For that reason, I think it will be interesting to follow the developments in the present challenge,” he added.

The smoking ban at all restaurants nationwide began on January 1, although the Health Ministry will not be enforcing it until July 1.

Anyone found guilty of the offence of smoking in banned areas can be fined up to RM10,000 or jailed up to two years under Regulation 11 of the Control of Tobacco Product (Amendment) Regulations 2018.

However, Deputy Health Minister Dr Lee Boon Chye said first-time offenders will only face a RM500 fine.

Premises or vehicle owners and operators who fail to display the smoking ban signage can be fined up to RM3,000 or jailed up to six months under Regulation 12 of the Control of Tobacco Product Regulations 2004.

For the offence of failing to ensure that nobody smokes and for providing smoking facilities, they can be fined up to RM5,000 or imprisoned up to one year.

A group for smokers’ rights has since filed an application for a judicial review to challenge the ban, seeking a declaration that the ban is unconstitutional as well as an injunction against the ministry from enforcing the smoking ban.

In response, Health Minister Datuk Seri Dzulkefly Ahmad said he was unfazed by the legal challenge, and expressed confidence that the courts will rule in favour of the ministry.

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