Group fails court challenge against smoking ban

KUALA LUMPUR, Oct 29 — The High Court today dismissed a group of seven Malaysians who sought a review of the Health Ministry’s ban against smoking in food outlets and near them that was enforced on January 1 nationwide.

Judge Datuk Seri Mariana Yahya ruled that the application by the group did not breach Articles 5 and 8 of the Federal Constitution, which concerns the rights of person and equality before the law, respectively.

She said the ban, which requires smokers to keep a minimum of three metres from a food outlet’s tables and chairs, does not deny their freedom of choice.

She pointed out that smokers can still light up and enjoy the outlet’s food and drinks, without discrimination.

“The groups’s argument that the ban is irrational towards smokers is unsupported and does not surface.

“This court therefore dismisses this judicial review application without order for costs,” the judge said in delivering her judgment.

In January, the group that calls themselves the Smokers Right Club was granted leave to initiate judicial review proceedings to challenge the smoking ban.

The applicants are named as Zulkifli Mohamad, 56, Mohd Hanizam Yunus, 52, Ridzuan Muhammad Noor, 52, Mohd Yazid Mohd Yunus, 48, Mohd Laisani Dollah, 46, Yuri Azhar Abdollah, 39, and Mohd Sufian Awaludin, 35.

The group was represented by lawyer Mohamed Haniff Khatri Abdulla, with senior federal counsel Shamsul Bolhassan acting for the Health Ministry.

In her judgment, Mariana addressed several points that had been raised during submissions and said she disagreed with the argument that the ban equalled a compromise on personal freedom and curtailed individual’s rights.

“Smokers can still smoke, as much as they want to, under the condition they follow the rules and regulations that have been set.

“There is no law stopping or banning smokers from smoking in totality in all situations,” she said.

The judge said the absence of a smoking area within a food outlet cannot be equated to a denial of a person’s freedom to smoke, adding that smokers were also not barred from dining in a restaurant as long as they kept to the designated three-metre minimum threshold while indulging in their habit.

She noted the respondents in the case, that is the Health Ministry, has said it is willing to gazette smoking zones within smoke-free zones.

In contrast, she said the applicants had not denied that non-smokers have a right to clean air in restaurants, which would be contaminated if they lit up there.

Mariana dismissed the argument the Health Ministry had acted beyond its jurisdiction, saying the ban had been implemented within the boundaries of the minister’s powers.

She noted that the ministry had conducted public feedback studies since it proposing the smoking ban in 2004.

Mariana noted the Smokers Right Club — which claimed to represent all Malaysian smokers — was formed only after the ban, and therefore the ministry would not have been able to consult it prior.

“Concerning this matter, this court is of the opinion that there is no arbitrary action by the respondent to cause their decision to become invalid.

“It is also not tainted with invalidity, or irrationality, or wrongful procedures that can allow this court to give an order or to cancel the decision of the respondent in enforcing the smoking ban in eateries,” she concluded.