Smoking ban in eateries: Seven individuals fail to obtain leave to appeal

The three-member bench comprising Federal Court judges Datuk Zabariah Mohd Yusof, Datuk Seri Hasnah Mohammed Hashim and Datuk Nordin Hassan not only dismissed their application to get leave to appeal but also ordered them to pay RM30,000 in legal costs to the MOH.

The seven individuals were Mohd Hanizam Yunus, Zulkifli Mohamad, Mohd Laisani Dollah, Mohd Sufian Awaludin, Ridzuan Muhammad Noor, Mohd Yazid Mohd Yunus and Yuri Azhar Abdollah.

Justice Zabariah, who led the bench, said the questions of law proposed by the seven individuals did not meet the threshold requirement under Section 96 (a) of the Courts of Judicature Act 1964.

Under that section, applicants must frame novel legal questions that were of public importance and raised for the first time.

In the court's unanimous decision, Justice Zabariah said the questions of law on Article 5 and Article 8 (liberty of a person and equality) of the Federal Constitution were settled and that the questions were not to public advantage which require further argument before the Federal Court.

The seven individuals, who had set up a society called Persatuan Pertahankan Perokok (PHP) filed a judicial review on Dec 31, 2018, naming the MOH as respondent, seeking a declaration that the ministry's decision to ban smoking in eateries was unconstitutional.

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

The individuals want the court to issue a certiorari order to quash the ministry's decision to ban smoking at eateries.

The individual lost their case in the High Court which was dismissed on Oct 29, 2019, and their appeal was also rejected by the Court of Appeal on Nov 23, last year, prompting them to file the leave to appeal application at the Federal Court.

In today's proceedings, lawyer Mohamed Haniff Khatri Abdulla urged the court to grant leave to appeal and posed three legal questions for the Federal Court to determine.

One of the questions is whether the amendments to the Tobacco Control Revenue Regulations, through the 2018 amendment to ban smoking in eateries including in air-conditioned and open places are against Article 5 and Article 8 of the Federal Constitution.

Senior Federal Counsel Shamsul Bolhassan who appeared for the MOH submitted that the ban to smoke in eateries is to the advantage of the public as most of the people supported that decision.