Yunus v. Ministry of Health Malaysia

The High Court granted the plaintiff’s application for judicial review of regulations prohibiting smoking in Malaysian eating places, including restaurants. The applicant argued that the smoking ban should be nullified because it violated the Federal Constitution by discriminating against smokers and infringing on smokers’ right to liberty by prohibiting their “right to smoke.” The court found that the “right to smoke” is not a fundamental right but a choice that an individual makes, and if a person chooses to smoke, they must comply with the laws set by the government. Also, the court stated that there was no discrimination because all Malaysians are free to frequent all eating places so long as they comply with the rules. Therefore, the court found that the applicant’s constitutional rights were not violated and that the ban on smoking in eating places was neither unfair nor unreasonable. The Ministry of Health acted within its jurisdiction by banning smoking in eating places as a means of protecting Malaysians from the harms of second-hand smoke.

Yunus v. Ministry of Health Malaysia, 9 MLJ 273, High Court of Malaysia (Kuala Lumpur) (2020)

  • Malaysia
  • Feb 29, 2020
  • High Court of Malaysia (Kuala Lumpur)
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Parties

Plaintiff Mohd Hanizam Yunus

Defendant Ministry of Health Malaysia

Legislation Cited

International/Regional Instruments Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"Based on the legal interpretation of art 5 of the Federal Constitution in the decisions of supreme court cases, the right to smoke was not a fundamental right guaranteed under art 5 of the Federal Constitution. Smokers still had the right to life and personal liberty guaranteed under the Federal Constitution. This guaranteed right could not be equated with the right to smoke. The right to smoke was a person’s right of choice. There was no law preventing or prohibiting applicants from smoking at all, but applicants must adhere to the rules set out by the government. Articles 5–13 of the Federal Constitution on ‘fundamental liberties’ did not cover the right to smoke (see paras 33–37)."