KUALA LUMPUR (Jan 1): A lawyer is challenging the federal government's smoking ban in private working offices that was gazetted on Sept 30, 2024 and goes into effect on Jan 1, saying it is unconstitutional as smoking is not a criminal offence.

Mohamed Haniff Khatri Abdulla named the health minister and government as respondents in the judicial review application filed in the High Court here on Tuesday night.

Haniff is seeking a certiorari order to quash the ban on smoking in workplaces under the Public Health Smoking Product Control Act 2024 (Act 852). A certiorari is an order to quash the decision made by a public authority.

He is also seeking a writ of mandamus to compel the government to grant his law firm in Kota Damansara an exception to the ban, as well as a declaration that the ban on smoking in workplaces is unconstitutional, citing violations of Articles 5 and 8 of the Federal Constitution.

Additionally, he is seeking a declaration that the ban on smoking on his premises is ultra vires, invalid and unfair, and a stay of the enforcement of the ban in his office until the hearing of the merits of the application.

In his affidavit of support, Haniff said the smoking ban in his personal workplace at Messrs Haniff Khatri is illogical and violates his constitutional rights, and the implementation of the ban without exception is unfair or without proper consideration of the situation in his office.

Haniff pointed to the failure of the respondents to consider his exception request fairly and logically in response to his letter dated Nov 29, 2023.

“The respondents' reply dated Dec 30, 2023 to a non-prejudice letter simply stated that the minister cannot give an exception to any area that had been gazetted, and cannot consider the application or appeal made by the smoker at Messrs Haniff Khatri,” the affidavit said.

Haniff further claimed the enforcement of the ban did not take into consideration smokers like him, and is against good administration and governance, as the implementation of the ban in private workplaces as a right is an illusion and cannot be implemented.

From Jan 1, 2025, laundromats and workplace buildings in both the government and private sectors will be designated as non-smoking areas, bringing the total number of non-smoking areas in the country to 28. Among the 26 other areas included in the ban are internet cafés, national service training centres, observation towers, campsites, canopy walkways, school buses, and public transportation vehicles.