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)
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
The tobacco companies and some individual plaintiffs argue that there is a right to smoke.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"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)."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
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.