Appellate court's verdict on smoking ban appeal fixed for Nov 23

Appellate court's verdict on smoking ban appeal fixed for Nov 23
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PUTRAJAYA (Sept 8): The Court of Appeal has fixed Nov 23 to give its verdict on the appeal by seven individuals who are seeking to quash the Ministry of Health's (MOH) decision to ban smoking in all eateries.

Judge Datuk Yaacob Md Sam, leading a three-member panel, said they need more time to deliberate on the issues raised by the counsel in the appeal, which are important and of public interest.

The two other judges presiding on the panel are Court of Appeal judge Datuk M Gunalan and High Court judge Datuk Lim Chong Fong.

The seven individuals are appealing against the Oct 29, 2019 decision of the Kuala Lumpur High Court in dismissing their judicial review application to get a certiorari order to quash the MOH's decision to ban smoking at eateries.

The seven are Mohd Hanizam Yunus, 55, Zulkifli Mohamad, 60, Mohd Laisani Dollah, 49, Mohd Sufian Awaludin, 38, Ridzuan Muhammad Noor, 56, Mohd Yazid Mohd Yunus, 51, and Yuri Azhar Abdollah, 43.

During the court proceedings conducted online, lawyer Mohamed Haniff Khatri Abdulla, representing the individuals, argued that the smoking ban enforced at eateries was unconstitutional, illegal and unreasonable, as it was made without proper and thorough research.

He said before the enforcement of the smoking ban at eateries in 2019, smokers in Malaysia could smoke in a special zone provided by owners of air-conditioned and non-air conditioned eateries.

"We submit that this situation is more balanced for the rights of smokers as well as non-smokers, where non-smoking patrons at eateries can choose to sit at a designated place that prohibits smoking, and smokers can smoke in places with the open-air concept," he added.

Haniff Khatri said the High Court judge had erred in law and, in fact, in deciding that his clients' rights under Article 5 of the Federal Constitution had not been violated and that smokers had not been discriminated under Article 8 of the Federal Constitution, following the enforcement of the smoking ban at eateries.

Senior federal counsel Shamsul Bolhassan, representing the MOH, submitted that banning smoking at eateries is not unreasonable and not illegal.

“The right to smoke is not a fundamental right to livelihoods, and if individuals choose to smoke, they have to respect the right of non-smokers, and they (smokers) have to move three metres away from eateries to smoke.

“The law was enacted to ban smoking at eateries, taking into consideration public health and quality of life,” he added.

In their judicial review filed on Dec 31, 2018 naming the MOH as the respondent, the seven men who had set up a society called Persatuan Pertahankan Perokok sought a declaration that the ministry's decision to ban smoking at eateries was unconstitutional.

They claimed that smokers had equal rights with non-smokers to visit and spend their time on 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 eatery operators to prepare their own non-smoking areas.

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