Environmental Law

Cigarette Smokers gets Leave to initiate Judicial Review Proceeding on Smoking Ban

Date: 29 January 2019; Type: Legal News; Source: Bernama

KUALA LUMPUR, Jan 29 (Bernama) - A group of seven smokers, calling themselves supporters of the “Pro-Tem Pertahankan Hak Perokok” (PHP or Smokers Right Club) today obtained leave to initiate judicial review proceeding to challenge the smoking ban at all eateries as enforced by the Health Ministry on Jan 1 this year.

High Court judge Datuk Azizah Nawawi made the decision in chambers when the case came before her for mention.

Lawyer Mohamed Haniff Khatri Abdulla, representing the seven individuals, however, said the court dismissed his clients’ application for an order to suspend the smoking ban on grouds that the court had no jurisdiction to suspend a decision that involved legal operation.

The application (to suspend smoking ban) was also irrelevant as the Health Ministrty had issued a notice that enforcement of the ban would be implemented after six months, he told reporters when met after today’s proceedings.

On Jan 2 this year, the Health Ministry issued a statement stating that no compound notice would be issued to offenders during the first six months of the smoking ban, instead they would only be issued with warning notice.

The court set Feb 12 for further case management.

The seven individuals are Mohd. Hanizam Yunus, 52, Zulkifli Mohamad, 56, Mohd Laisani Dollah, 46, Mohd. Sufian Awaludin, 35, Ridzuan Muhammad Noor, 52, Mohd Yazid Mohd Yunus, 48, and Yuri Azhar Abdollah, 39,.

The filed the ex-parte application (one side) at the High Court Registrar’s Office through e-filing through the legal firm of Messrs. Haniff Khatri, and named the Health Ministry as the sole respondent.

In the application, they claimed the smoking ban is a breach of the Federal Constitution because smoking is not a criminal activity, and it is legally valid.

They also stated that smokers have equal rights with non-smokers when they visit restaurants or other eateries and that the government did not provide alternative locations for them to smoke.

Those who smoke constructively are pushed aside and discriminated from patronsing eateries with the ban, they said, adding that it imposing the ban is against the law and not according to procedures as no discussion was held by the ministry with the smokers on the move.

They said the government also did not allocate alternative venues or provide allocation for opetrators of eateries to allocate special area for smoking.

They are seeking a certiorari order to quash the Health Ministry’s decision on the smoking ban and a declaration that its enforcement was unconstitutional.

The Health Ministry is represented by senior federal counsel Shamsul Bolhassan.

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