Oct 29 was a momentous day for Malaysian public health, following the court’s decision to reaffirm a nationwide smoking ban in restaurants which came into force this year, after it was challenged by a group of smokers who claim their constitutional rights had been violated.
For Health Minister Dzulkefly Ahmad and other health advocates, the decision reaffirms an important point: that health is, in the Federal Constitution, an important human right.
Human rights is a difficult topic in our highly charged political climate.
Although everyone is pretty much on board with the idea of human rights as being universally inherent, inalienable and inviolable rights for all man, not many countries agree on the definition and context of these rights.
It was the French Revolution that first kicked off the concepts of liberty, equality and fraternity.
Today, these form the core of what is termed as human rights – the right to life, the right to liberty, security of individuals, freedom to assemble, freedom of association, and freedom of religion.
Expansion of these rights which emerged later includes the right to employment, housing and equal wages. Today, concepts included into human rights include group and collective rights, the right to self-determination, the right to environment and the right to development.
So when did health get added to the mix?
The UN’s Universal Declaration of Human Rights in 1948 provides that “everyone has the right to a standard of living adequate for the health and wellbeing of himself and his family including food, clothing and medical care.”
This document sees health as an essential human right, and has been so for more than seven odd decades or so.
But what do we mean when we say that health is a human right, especially in the Malaysian context?
Accepting that health is human right means that the government must ensure that all Malaysians have the right to the highest attainable standard of physical and mental health.
They must be able to access quality healthcare, available to all equitably as and when needed, as well as sanitation, adequate food, decent housing, healthy working conditions and a clean environment.
It was in the protection of the healthy environment that there occurred a clash between the alleged infringement of the smokers’ “individual” rights against the “right to health” in terms of providing a clean, healthy environment to all Malaysians.
The seven smokers challenged the ban for three reasons. Among them, they claimed the minister had exceeded his ministerial powers allotted to the role in declaring the ban.
They also said that their rights under Article 5 and 8 of the Federal Constitution were breached.
According to Article 5, no person may be deprived of life or personal liberty except in accordance with law, while Article 8 states that all persons are equal before the law and entitled to equal protection.
By prohibiting their right to smoke in restaurants, the smokers felt that these individual rights were being denied them and that they were being discriminated against.
Weighing against this was the Ministry of Health’s scientific rationale that smoking in public places constituted a greater danger to a larger part of the population, and that by instituting the ban, the greater public’s right to health was being protected.
How important are the rights of the individual then?
In health at least, our constitution is crystal clear. The drafters in their spirit and intent were strongly in favour of the greater good, i.e. public health far above the rights of any individual.
Take, for example, Article 9 where even the freedom of movement, one of the most basic rights, can be restricted by the government in the interest of public health.
Similarly, another fundamental right, the right to religious freedom, is assured under Article 11. Even this right cannot be exercised by ignoring public health. Did you know this?
This was the spirit alluded to by Justice Mariana Yahya in dismissing the application of the smokers.
Contrary to what the smokers alleged, she said their rights were not compromised as they could still smoke outside the three-metre stipulated radius from the restaurants and that there was no discrimination discernible between smokers and non-smokers in this regard.
The judge also mentioned that smokers and non-smokers had equal rights in terms of visiting and spending their time in food premises for as long as they wished. This was an important point, and one which most smokers choose to conveniently overlook.
The majority of Malaysians are not smokers. We have an equal amount of “rights” as do smokers.
The court has clearly spoken. The right to health for all Malaysians, including smokers, is the most important thing and is the law of the land.
In health especially, some rights are wrong.
The views expressed are those of the author and do not necessarily reflect those of FMT.