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

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

The two other judges presiding on the panel were 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 Healthy Ministry'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.

At the court proceedings conducted online, lawyer Mohamed Haniff Khatri Abdulla representing the individuals, argued that a 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 to the rights of smokers as well as non-smokers where non-smoking patrons at the 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 smokers had not been discriminated under Article 8 of the Federal Constitution following enforcement of the smoking ban at eateries.

Senior federal counsel, Shamsul Bolhassan, representing the Health Ministry, submitted that banning smoking in eateries was not unreasonable and illegal.

"The right to smoke is not a fundamental right to livelihood 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 the 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 Health Ministry as respondent, the seven men who had set up a society called Persatuan Pertahankan Perokok (PHP) sought a declaration that the Health 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 at 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.

On Jan 1, 2019, the Health Ministry imposed a ban on smoking at all restaurants and food premises.