Smoking ban in public places cannot be challenged, High Court told

The smokers’ group claims the health ministry never sought its views when implementing the ban on smoking in restaurants.

KUALA LUMPUR: Smokers’ groups cannot take the government to court over its decision to implement a ban on smoking in public places, the High Court heard today.

Senior federal counsel Shamsul Bolhassan, representing the health ministry, said the decision was non-justiciable and could not be questioned in court.

“The ban is a government policy and the minister (Dzulkefly Ahmad) is exercising his official function in implementing this policy.

“They (smokers’ group) have no right to stop the minister from enforcing the smoking ban,” he said in opposing a judicial review application by a pro-smokers’ group.

The smokers’ group, calling itself Defenders of Smokers’ Right, is seeking to challenge the government’s decision to impose the ban.

The group claims the ban violates their rights under the constitution, arguing that smoking is not a crime under Malaysian law.

The smoking ban was imposed on Jan 1, with fines of up to RM10,000 or three years’ jail on patrons as well as owners of premises who fail to implement the rule.

Under the rule, smokers can only smoke three metres away from any restaurant.

The government has allowed an extension of time and has suspended punitive action against offenders until the year-end, choosing to educate them first.

Dzulkefly had said the extension was to raise awareness and knowledge about the dangers of smoking.

Shamsul also told the court the group’s complaint that their right to light up cigarettes had been deprived was without basis.

“A smoker is not deprived of his right by the (smoking) restriction as he can still smoke three metres outside the restaurant,” he said.

In response, the group’s lawyer, Haniff Khatri Abdulla, said they, as the aggrieved party, were not consulted before Dzulkefly decided on the ban.

“We wrote to him in December seeking to meet him but he refused to see us.

“We humbly submit that the ban is against the principle of natural justice as the minister did not give us the right to be heard before making the decision,” he said, adding that they maintained that the ban was unconstitutional.

High Court judge Mariana Yahya set Oct 29 for decision after hearing arguments from the government and the smokers’ group.