7 fail to get leave to challenge smoking ban in eateries

Last year, the Court of Appeal ruled that the issue of discrimination did not arise as the ban on smoking at eateries applied to everyone.

PUTRAJAYA: A five-year legal battle by seven men to challenge the health ministry’s decision to ban smoking in all eateries has come to an end.

This follows the Federal Court’s decision today to refuse them leave to appeal against a Court of Appeal ruling delivered last year.

Justice Zabariah Yusof, who led a three-member bench, said Hanizam Yunus, 55, Zulkifli Mohamad, 60, Laisani Dollah, 49, Sufian Awaludin, 38, Ridzuan Noor, 56, Yazid Yunus, 51, and Yuri Azhar Abdollah, 43, failed to cross the threshold to obtain leave as required under Section 96 of the Courts of Judicature Act 1964.

The provision states that applicants must satisfy the court by framing novel legal and constitutional questions that are of public importance and raised for the first time.

“The questions posed to obtain leave were also not of public advantage. We dismiss the leave application with RM30,000 costs to be paid to the respondents,” said Zabariah, who sat with Justices Hasnah Hashim and Nordin Hassan.

On Nov 23 last year, a three-member Court of Appeal bench upheld the government’s decision to ban smoking at all eateries, ruling that smoking in public places is not a fundamental right that should be protected under the Federal Constitution.

Justice M Gunalan said the health minister is empowered under the law to impose restrictions on smoking, including where or when smoking is prohibited.

Gunalan, who sat with Justices Yaacob Sam and Lim Chong Fong, said they agreed that the then High Court judge Mariana Yahya also did not commit an error of law or fact in arriving at her decision to dismiss the appellants’ judicial review.

The seven had obtained leave to appeal before the merit of the application was dismissed.

On Oct 29, 2019, Mariana, now a Court of Appeal judge, dismissed the individuals’ judicial review application to get a certiorari order to quash the health ministry’s decision to ban smoking at eateries.

Their judicial review filed on Dec 31, 2018 had named the health minister, health ministry and government as respondents.

The seven, who had set up a society called Persatuan Pertahankan Perokok, also sought a declaration that the ministry’s decision to ban smoking in eateries was unconstitutional.

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 and that the government did not provide adequate facilities such as smoking areas or include provisions under the smoking ban for business owners to prepare their own non-smoking areas.

The health ministry imposed the ban on smoking at all restaurants and food premises on Jan 1, 2019.

Those caught smoking in restaurants will be fined RM10,000 while restaurant operators failing to adhere to the ban will be fined RM2,500.

Lawyer Haniff Khatri Abdullah appeared for the seven men while senior federal counsel Shamsul Bolhassan represented the respondents. - FMT