Smokers Lose Bid to Challenge Ban on Lighting Up at Eateries

The Federal Court here has dismissed a leave application by seven smokers seeking to challenge the Health Ministry’s smoking ban at eateries.

A three-judge panel, chaired by Federal Court judge Justice Zabariah Mohd Yusof, made the unanimous decision for dismissal on Tuesday (June 20).

The panel ruled that the applicants – 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 failed to cross the threshold to obtain leave as required under Section 96 of the Courts of Judicature Act 1964.

According to the provision, applicants must first raise a question of general principle decided for the first time or a question of importance upon which further argument and a decision of the Federal Court would be to public advantage.

Without the leave, the case would not be heard on its full merits.

“We dismiss the leave application with RM30,000 in costs to be paid to the respondent,” said Justice Zabariah.

Other judges on the bench were Justices Hasnah Mohammed Hashim and Nordin Hassan.

On Dec 31, 2018, the seven smokers who called themselves the Smokers Right Club filed a leave for judicial review application at the High Court to challenge the smoking ban at all eateries, which took effect on Jan 1, 2019.

They named the Health Ministry as the sole respondent.

The group claimed that the smoking ban contradicts the Federal Constitution as smoking was not a criminal activity and was not banned in the country.

They claimed that the activity was legally valid and guaranteed by the Constitution.

The leave was granted but after a full hearing, the judicial application was dismissed by the High Court in October 2019.

The group then took the matter to the Court of Appeal.

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.

The group then filed for leave to appeal at the Federal Court.

Source: The Star (20 June 2023)