Smoking at eateries still banned as High Court dismisses constitutional challenge by seven smokers

KUALA LUMPUR (Oct 29): The smoking ban in eateries still stands.

This follows the High Court today dismissing the constitutional challenge brought by seven smokers, as it ruled that the Health Ministry's move to impose the ban is not filled with illegality and impropriety.

Justice Datuk Mariana Yahya also ruled that the ban, which has been in force since Jan 1, did not violate the smokers' right of equality and liberty as they are still free to eat at these places, but they cannot smoke within 3m from the restaurant premises.

She also made no order as to costs.

The plaintiffs — Mohd Sufian Awaludin, Zulkifli Mohamad, Mohd Laisani Dollah, Ridzuan Muhamad Noor, Mohd Hanizam Yunus, Mohd Yazid Mohd Yunus and Yuri Azhar Abdullah — formed a smokers' group to file a judicial review application late last year challenging the ban on smoking in restaurants on the grounds that it was unconstitutional as it violated Articles 5 (liberty of a person) and 8 (equality) of the Federal Constitution.

They claimed that the Health Ministry did not consult the smokers before imposing the conditions, hence the implementation by the government is irrational and not according to procedure.

Moreover, they are also taxpayers and smoking is not a criminal offence.

In her oral judgement, Justice Mariana said 78% of Malaysians are non-smokers.

She also ruled that the Health Minister, Datuk Seri Dr Dzukefly Ahmad, has the power to form such laws to protect the majority who want to breathe fresh air.

Those who violate the ban face a RM10,000 fine or a maximum of two years in jail.

Smokers must balance their rights with those of non-smokers

She said the plaintiffs have to balance their rights with those of non-smokers as they have to consider the patrons of the restaurants who do not want to be bothered by smoke emanating from smokers.

"They should be free to eat without being troubled by smoke from smokers. There is no ban from smokers to come to eat at these restaurants or eateries. Neither was there any prohibition for them to stay at the eateries until late hours.

"The prohibition is only for them not to smoke within the premises, but [they are allowed to smoke] outside or 3m or 10 feet from the premises," the judge pointed out.

Citing various state laws like in Melaka — where such conditions have already been imposed since 1993 — Justice Mariana dismissed claims that the 3m distance was impractical.

"Public interests and expectation is reasonable as they can still eat the food but smoke within the perimeters that is allowed. The task of the court is not to decide what is reasonable or otherwise acting in the four corners of justice," she said.

The judge also highlighted that the government's counsel had shown that the ministry had given the public an opportunity to provide their feedback by May 18, 2018, before the ban is imposed.

"Hence, the time frame given for the smokers to give the feedback is reasonable and this shows the decision taken is not arbitrary and the action is not against Article 5 (liberty of a person) and Article 8 (equality).

"The decision to impose the ban is not affected by illegality or impropriety as claimed," she said.

The Health Ministry is represented by senior federal counsel Shamsul Bolhassan while lawyers Mohd Haniff Khatri Abdulla, Datuk M Reza Hassan and M Ravindran appeared for the plaintiffs.

Haniff told reporters they would file an appeal against the decision at the Court of Appeal.

An anti-smoking group led by Malaysia Association for Adolescent Health president Dr Mymoon Alias, Malaysia Women's Action for Tobacco Control and Health president Roslizawati Md Ali and consumer activist Muhammad Shaani Abdullah, gathered outside the court building today to demand that the ban stay in place.

Clad in yellow anti-smoking T-shirts, they were told to remove their T-shirts before the court delivered its decision.

The group welcomed Justice Mariana's ruling.

Meanwhile, Dzulkefly Ahmad tweeted his support for the court decision.

"Alhamdulillah. Smoking ban at eateries stand. The decision for judicial review to challenge the order for non-smoking sides with the ministry and government. The ministry would continue to defend a healthy environment," he said in the tweet.

"Congratulations and thank you to all Health Ministry officials who continue to be consistent in defending the non-smoking policy at public eateries. Thank you to all the NGOs who are committed to support and defend the policy ban. Congratulations to Malaysians."

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