SEVEN people failed to obtain leave from the Federal Court to proceed with their appeal to challenge the decision by the Health Ministry to ban smoking in all eateries, hence ending their five-year legal battle.

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

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.

Zabariah, who led the bench, said the questions of law proposed by the seven 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, 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, who have set up a society called Persatuan Pertahankan Perokok, filed a judicial review on December 31, 2018, naming the Health Ministry as respondent, seeking a declaration that the ministry’s decision to ban smoking in eateries was unconstitutional.

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

The group wanted the court to issue a certiorari order to quash the ministry’s decision to ban smoking at eateries.

They lost their case in the High Court, which was dismissed on October 29, 2019, and their appeal was also rejected by the Court of Appeal on November 23 last year, prompting them to file the leave 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 articles 5 and 8 of the Federal Constitution.

Senior federal counsel Shamsul Bolhassan, who appeared for the ministry, submitted that the smoking ban in eateries is to the advantage of the public as most of the people supported that decision. – Bernama, June 20, 2023.