A three-member panel comprising Justices Yaacob Sam and M Gunalan from the Court of Appeal and Justice Lim Chong Fong from the High Court dismissed an appeal by seven individuals who sought to challenge the health ministry’s decision in banning smoking at eateries.
The seven are Hanizam Yunus, 55, Zulkifli Mohamad, 60, Laisani Dollah, 49, Sufian Awaludin, 38, Ridzuan Noor, 56, Yazid Yunus, 51, and Yuri Azhar Abdollah, 43.
Gunalan, who delivered the court’s decision in an online proceeding, said the health minister is empowered under the law to impose restrictions on smoking, such as where or when smoking is prohibited.
“It is our view that banning smoking at eateries, restaurants and the like can be considered as not being in violation of Article 5 (right to life or personal liberty) and Article 8 (all persons are equal before the law and entitled to equal protection of the law) of the Federal Constitution.
Gunalan said that the appellate court panel agreed with the High Court’s interpretation that the act of smoking in public places was not a fundamental right that ought to be protected under the Federal Constitution.
“As the ban applies to all persons, all patrons, the issue of discrimination, if in fact it arises at all, does not infringe Article 8 of the Federal Constitution.
“There was no error of law or fact or failure of judicial appreciation by the High Court judge in arriving at her decision to dismiss the appellants’ judicial review. Hence there are no grounds for us to disturb or interfere with the decision of the learned judge,” he said.
The court also did not make any order as to costs.
On Oct 29, 2019, the then High Court judge Mariana Yahya (now Court of Appeal judge) dismissed the individuals’ judicial review application to get a certiorari order to quash the decision of the health ministry to ban smoking at eateries.
In their judicial review filed on Dec 31, 2018, naming the health ministry as the respondent, the seven men, who had set up a society called Persatuan Pertahankan Perokok (PHP), also sought a declaration that the ministry’s decision on banning smoking at eateries was unconstitutional.
They claimed that smokers had equal rights with non-smokers to visit and spend 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 entrepreneurs 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.