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Smoking ban at eateries still remains, as apex court dismisses appeal by seven smokers

PUTRAJAYA (June 20): The Federal Court on Tuesday (June 20) upheld the smoking ban imposed by the government from 2019 at eateries and within three metres of eateries all over the country.

This follows a three-member apex court bench, led by Federal Court judge Datuk Zabariah Mohd Yusof, unanimously dismissing the seven appellants’ leave to appeal.

In civil challenges at the apex court, leave first has to be gained before the full merits are to be heard.

“The bench is satisfied that the three questions posed do not meet the requirements or pass the threshold under Section 96 (a) of the Courts of Judicature Act for this court to grant leave,” Zabariah said.

She said the arguments that the purported law violates Article 5 and 8 (regarding Liberty of a Person and Equality) is settled.

“It is not of public advantage for this court to grant leave (permission) to this case,” Zabariah added.

The bench that also comprised Federal Court judges Datuk Seri Hasnah Mohammad Hashim and Datuk Nordin Hassan, also ordered the appellants to pay costs of RM30,000 to the government.

Mohd Hanizam Yunus, 56, Zulkifli Mohamad, 61, Mohd Laisani Dollah, 50, Mohd Sufian Awaludin, 39, Ridzuan Muhammad Noor, 57, Mohd Yazid Mohd Yunus, 52, and Yuri Azhar Abdollah, 44, had named the health minister, the health ministry and the government as respondents in the move by the government to ban smoking at all eateries effective 2019.

They, through their counsel Mohd Haniff Khatri Abdulla, had posed three questions of law to be considered by the apex court bench:

  • Whether the amendments to the Regulation to the Tobacco Revenue through the 2018 amendment at eateries including in air-conditioned and open places is unconstitutional according to Article 5 and 8;
  • Whether the gazette to abolish smoking at eateries, which is said to be based on Article 8 of the World Health Organisation Framework Convention on Tobacco Control (WHOFCTC), is misplaced or unreasonable or irrational and disproportionate to Article 8 of the WHOFCTC; and
  • Whether the prohibition of smoking within three metres or 10 feet from eateries is misplaced or unreasonable or irrational due to the disproportionate procedure, as the distance mentioned is ambiguous.

Haniff argued that the smoking ban is unconstitutional as it violates the rights of smokers, and that designated places should be prepared by eateries, and that the three-metre distance is ambiguous, as is it from the venue of the eateries or from the tables outside the eateries.

He further said that the WHO requirement does not impose a ban on eateries out in the open.

Senior federal counsel Shamsul Bolhassan and Liew Horng Bin, who appeared for the health minister, health ministry and the government, argued that the ban is of public advantage as a majority of the public supports the decision.

Shamsul also said that there is no total ban on smoking, as smokers could smoke elsewhere.

On Oct 30, 2019, the High Court dismissed the judicial review application by the seven applicants and on Nov 23, 2022, the Court of Appeal also dismissed their appeal, resulting in the application being heard on June 20 at the Federal Court.

Source: The Edge Malaysia

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