Halal Products Malaysian Constitution Perspective...Halal Products – Malaysian Constitution...

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Electronic copy available at: http://ssrn.com/abstract=2162296 685 INHAC 2012 Kuala Lumpur International Halal Conference, PWTC, Kuala Lumpur, Malaysia, 4-5 September 2012 Halal Products Malaysian Constitution Perspective Faridah Jalil 1 , Nurhafilah Musa 2 Law Faculty, University Kebangsaan Malaysia Abstract Originally, ‘halal’ stands for someting permissible for Muslims according to Islamic law. Over the years, halal has been transformed into a standard of safety and hygiene for products consumed by Malaysian Muslims. With the growing consciousness of Muslims in Malaysia on the importance of halal products, the issue is whether obtaining halal products is a constitutional right? This paper argues that obtaining products suitable for consumptions of all citizens is a constitutional right especially for the Muslims due to religious injunction. Thus assurance on this right should be based on the halal standard. This argument is based on two points, first, from the human rights perspective and second, from the perspective of federalism. The human right perspective is developed on the basis that food security has to fulfil certain standards, and since the concept of halal encompasses a universal standard, this concept fit into the right of livelihood of the general public and religious freedom for the Muslims. In addition, the Federal Constitution and the state Administration of Islamic Law Enactment provide that halal is a subject matter within the state jurisdiction in the administration of Islamic matters. After recognizing the constitutional right of all citizens including the Muslim in obtaining halal products, this paper concludes that halal product can be adopted as a standard for all Malaysians. The adoption of the Halal standards as food security standards will assist in preserving social cohesion as the Muslim community which form the largest consumers groups in Malaysia will feel at ease and has no prejudice to products that they consumed. Keywords: halal; Malaysian Constitution; right to life; division of powers 1. Introduction Muslim consumers’ awareness of their responsibility to consume only halal food escalates the demand for halal products. The demand for halal products will continue to increase not only in Malaysia but world widely as Muslim population that is estimated to reach 6.1 billion in year 2030. 3 The growth of Muslim population 1 [email protected] 2 [email protected] 3 The Future of the Global Muslim Population projections for 2010-2030 - http://www.pewforum.org/The-Future-of-the-Global-Muslim-Population.aspx ( 27 th January 2011)

Transcript of Halal Products Malaysian Constitution Perspective...Halal Products – Malaysian Constitution...

  • Electronic copy available at: http://ssrn.com/abstract=2162296

    685

    INHAC 2012 Kuala Lumpur

    International Halal Conference, PWTC, Kuala Lumpur, Malaysia, 4-5 September

    2012

    Halal Products – Malaysian Constitution Perspective

    Faridah Jalil1, Nurhafilah Musa

    2

    Law Faculty, University Kebangsaan Malaysia

    Abstract

    Originally, ‘halal’ stands for someting permissible for Muslims according to Islamic

    law. Over the years, halal has been transformed into a standard of safety and hygiene

    for products consumed by Malaysian Muslims. With the growing consciousness of

    Muslims in Malaysia on the importance of halal products, the issue is whether

    obtaining halal products is a constitutional right? This paper argues that obtaining

    products suitable for consumptions of all citizens is a constitutional right especially

    for the Muslims due to religious injunction. Thus assurance on this right should be

    based on the halal standard. This argument is based on two points, first, from the

    human rights perspective and second, from the perspective of federalism. The human

    right perspective is developed on the basis that food security has to fulfil certain

    standards, and since the concept of halal encompasses a universal standard, this

    concept fit into the right of livelihood of the general public and religious freedom for

    the Muslims. In addition, the Federal Constitution and the state Administration of

    Islamic Law Enactment provide that halal is a subject matter within the state

    jurisdiction in the administration of Islamic matters. After recognizing the

    constitutional right of all citizens including the Muslim in obtaining halal products,

    this paper concludes that halal product can be adopted as a standard for all

    Malaysians. The adoption of the Halal standards as food security standards will assist

    in preserving social cohesion as the Muslim community which form the largest

    consumers groups in Malaysia will feel at ease and has no prejudice to products that

    they consumed.

    Keywords: halal; Malaysian Constitution; right to life; division of powers

    1. Introduction

    Muslim consumers’ awareness of their responsibility to consume only halal food

    escalates the demand for halal products. The demand for halal products will continue

    to increase not only in Malaysia but world widely as Muslim population that is

    estimated to reach 6.1 billion in year 2030.3 The growth of Muslim population

    1 [email protected]

    2 [email protected]

    3 The Future of the Global Muslim Population – projections for 2010-2030 -

    http://www.pewforum.org/The-Future-of-the-Global-Muslim-Population.aspx ( 27th

    January 2011)

    http://www.pewforum.org/The-Future-of-the-Global-Muslim-Population.aspx

  • Electronic copy available at: http://ssrn.com/abstract=2162296

    686

    provides strong support for the production, marketing and distribution of a broader

    range of halal products. For the Muslims eating is considered as worship to God thus

    they have to follow dietary rules as injuncted in the Quran. Thus it becomes

    fundamental to protect Muslims from prohibited diet. Besides the size of Muslim

    population, halal product is suitable to be consumed by everybody disregard of their

    religious belief, since Halal products had gain the confidence of consumers who are

    becoming more concern on health and nutrition. Halal products are regarded as

    specially selected and processed to achieve the highest standards of quality.

    All people are concerned about the food they eat: Muslims want to ensure that their

    food is halal; Hindus, Buddhists, and certain other groups that their food is vegetarian.

    At the same time, food is considered one of the most important factors for interaction

    among various ethnic, social, and religious groups. In Malaysian plural society, the

    Muslims are very sensitive towards their faith and beliefs especially when it concerns

    the food that they take and the issue of halal and haram. In this sense, food and

    consumer products are contributing factor towards the unity or disunity in the society

    of multi-racial, religious and cultural background.4 Therefore, it is important to have

    products that can be consumed by all religious believers. Halal products fit into

    human needs as it encompassed standards that match the demand and needs of

    everyone.

    Based on these facts, the objective of this paper is to provide an overview on the

    constitutional perspectives of halal products from human rights and

    administrative/governance perspectives in Malaysia. Since Muslims are requested to

    consume halal products, it is argued that such obligation amount to right to life as

    guaranteed by Article 8 of the Federal Constitution. To ensure such right is protected,

    the State, which is given the responsibility to administer on Islamic matters in line

    with federalism principle, has to protect such rights and enhance social cohesion in

    multi religious country.

    Existing literature on halal have focused on several issues such as halal constituent

    (standard and source of administrative power), halal certification tools, halal

    marketing, halal process, halal issues (food and technological process, consumerism)

    and halal certification body and enforcement authority.5 However, there is lack of

    literature on halal from constitutional perspective.

    This paper is divided into several sections. The paper begins with the discussion on

    the definition and concept of “Halalan Toyyiban”. Then, a constitutional perspective

    of halal will be discussed focusing on halal as a fundamental right. After that,

    jurisdiction and administration of halal based on the constitutional division of powers

    will be highlighted. This section is comprised of halal as a federal matter, federal

    legislation and federal agencies; halal as a state matter, state legislation and state

    agency and halal matters as a matter under concurrent jurisdiction. To conclude, this

    4 Lokman Abdul Rahman, 2005

    5 Nurulhuda Noordin et. al., 2009

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    paper is going to emphasis on Halal as a shared value in the Malaysian multi-religious

    society.

    2. Definition of Halalan Toyyiban

    2.1 Halal

    The word halal is commonly used to refer to ‘anything that is considered permissible

    and lawful under religion.’ Linguistically, the word halal is derived from the verb

    “Halla” meaning “to be or become lawful, legal, licit, legitimate, permissible,

    permitted, allowable, allowed, admissible, un-prohibited, unforbidden.”6 The concept

    of halal has traditionally been applied to food. Now, it appears that the definition of

    halal expands to the extent that virtually all goods and services including cosmetics,

    clothing, pharmaceuticals, financial services and even tour packages can be obtain the

    status of halal. In manufacturing and production industry, halal means free from

    ingredients or components that Muslims are prohibited from using or consuming.

    With regards to livestock, halal means to fulfil the proper religious procedures such as

    slaughtered according to Islamic rules. At the same time, the production and

    manufacturing of halal products has to be guarded against najs throughout the

    process. What is permissible and prohibited can be found in the Quran, As-sunnah

    and jurists opinion. The general principles in Syariah is all foods are pure and clean,

    therefore, they can be consumed by the Muslims except for maytah (the meat of dead

    animals or carrion); blood; pork and meat dedicated to anyone other than Allah

    (s.w.t). The aim of the prohibition is to preserve the nobility of the human body by

    preventing it being disgraced through engaging in prohibited food.7

    2.2 Toyyiban

    Equally important to consuming what is permissible according to Syara’ is the

    wholesomeness of the product. In the surah of Al-‘Araf (7):32-33) Allah s.w.t

    pronounced: O you who believe! Eat of the good things wherewith We have supplied

    you, and render thanks to Allah if you are (indeed) His worshippers. (Al-Baqarah

    (2):172). Thus, besides fulfilling the permissible in Shariah requirements, the

    products must, at the same time, Toyyib, which literally means, good, pure and clean.

    Toyyib does not only means ‘good, pleasant, delightful, delicious or sweet but also

    healthy and beneficent to our body, and what is good for our body is also good for our

    mind and spirit.’8 Islam restricts the consumption of al-khabith, products that is bad,

    imperfect, decayed and harmful, because consuming the prohibited products are not

    only being injurious to one’s physical health but also affect the character and spiritual

    faculties of man, which lead a man to corrupt deeds.

    6 Nader Al Jallad, 2008

    7 Nurdeng, D., 2009

    8 Nurdeng. D: 2009

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    Halalan Toyyiban conceptually means an encompassing process where products and

    services are produced from source to finished stage in accordance to Shariah laws and

    values, which are safe, hygienic and wholesome. With the combination of toyyibban,

    halal is equal to clean, hygienically handled, nutritious, good quality and safe from

    farm to fork starting from, farming, processing, packaging and labelling,

    warehousing, transportation, delivery and consumption.9 Consumers will be provided

    with quality products that are not only safe and hygienic but adhere to rule of Islam.

    3. The Constitutional Perspectives of Halal

    The issue on Halal intersects with constitutional dimension in two ways, firstly, in

    relations to fundamental rights of a person and secondly, the administration of halal

    affairs. Relevant constitutional principles will be highlighted in this part to illustrate

    on the position of halal in regards of enjoying one fundamental right and in the

    administrative field. The discussion is based on the Federation of Malaysia

    Constitution. The administration of halal affairs will be discussed in the next section.

    3.1 Halal as Fundamental Rights of a person

    The Federal Constitution of Malaysia does not expressly provide for the right to halal

    products. However, there are numerous constitutional provisions as highlighted in the

    following discussions that may be used as a basis to claims for the Muslims’ right to

    halal products. This paper argues that the state has the responsibility to provide the

    necessary mechanism to materialize the demand for halal products. The support for

    rights to halal products lies on two pillars, namely;

    3.1.1 Right to life

    Article 5 of the Federal Constitution provides for the right to life. In the case of Tan

    Teck Seng [1996], Justice Gopal Sri Ram stretched the meaning of the word life from

    mere existence to, at the same time, “incorporates all those facets that are an integral

    part of life itself and those matters which go to form the quality of life”. Facets that are integral to life and form the quality of life might include the right to lawful and

    gainful employment, right to reasonably healthy and pollution free environment, right

    to education and also right to food. The argument for implied insertion of right to

    food in the Federal Constitution found supports in the Universal Declaration of

    Human Rights (UDHR) in 1948, which recognizes right to food as part of the right to

    a decent standard of living. Article 25 of UDHR stipulated: ‘Everyone has the right to

    a standard of living adequate for the health and well being of himself and his family,

    including food...’

    The right to food does not only implies being free from hunger. It is elaborated in

    Article 11 of the International Covenant on Economic, Social and Cultural Rights

    (ICESCR) 1976 which stipulates that the States Parties ‘recognize the right of

    9 Dr Ahmad Al-Absy: 2010

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    everyone to an adequate standard of living for himself and his family, including

    adequate food.’ General Comment No. 12 to ICESCR considers that the core content

    of the right to adequate food implies two elements. The first is ‘the availability of

    food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free

    from adverse substances, and acceptable within a given culture’ and the second

    element is ‘the accessibility of such food in ways that are sustainable and that do not

    interfere with the enjoyment of other human rights.’ This means that each individual

    has the right to access to food that meet religious order and ensure good health and

    well being.

    As every movement is considers as ibadah in the teaching of Islam, halal products

    will enhance the Muslims’ quality of life both, physically and spiritually. Physically,

    as had been proven by medical findings and scientific research, prohibition on alcohol

    protects individual from unbecoming conduct or serious sickness. For example, there

    is strong association between drinking and hypertension10

    and alcohol and crime of

    violence.11

    On top of these, the restrictions preserved human dignity.12

    3.1.2 Right to practice one religious belief

    This is a right guaranteed in Article 11(1) of the Federal Constitution in recognition of

    freedom of religion. This provision guarantees that each religion in the Federation is

    free to practice the teaching of their religion subject to conducts that go against any

    general laws relating to public peace, public health and principle of morality. Thus,

    since Islam requires the Muslim to strictly observe the dietary requirements as

    ordained in the Quran and Sunnah, it becomes the fundamental right of the Muslims

    and at the same time, fulfill their spiritual enhancement, i.e., it is about faith and

    abiding God’s command. The exercise of the right to practice Islamic teachings by

    observing halal requirement does not endanger public peace or public health.

    3.1.3 Does halal requirement objectionable to non-muslims?

    The non-Muslims, particularly in Malaysia and worldwide, are aware and familiar

    with Islamic regulations on halal products. Halal products are chosen by consumers

    from all walks of religions because they believe in the standards of safety, hygiene

    and wholesomeness of the product. There had been objection from animal activists on

    the manner animal was slaughtered which was claimed as cruel. However, research

    indicated that the Islamic method of slaughter is not only the most humane and least

    painful but also the most hygienic of all the methods of killing animals.13

    Despite

    resentment on the method of slaughtering animals, halal products generally, are not

    objectionable to the non –Muslim consumers, as a study in France shows that Halal

    meat is consumed not because of religious obligation, but because it is hygienic.14

    10 Arthur L. Klatsk, 1977

    11 Douglas Murdoch: 1990

    12 Nurdeng, D.: 2009

    13 Golnaz, R et al: 2010

    14 Bergeaud-blacker et al (2006

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    Muslims and non-Muslims should work together to ensure that the products that they

    consume is of high quality and safe. This is the shared ideals that community should

    strive to realize since good, healthy, nutritious and wholesome products will preserve

    human dignity and sustain quality life. Halal products served this purpose.

    The halal products have to undergo strict inspection not only for Halal certification

    purpose but the international standard of food safety oversees by Codex Alimentarius

    Commission (CODEX), a body established by FAO and WHO in 1963 for the

    purpose of developing “harmonised international food standards, guidelines and codes

    of practice to protect the health of the consumers and ensure fair trade practices in the

    food trade.” At the same time the Commission promotes “coordination of all food

    standards work undertaken by international governmental and non-governmental

    organizations.” Malaysia Standards of Halal Food (MS1500: 2009) incorporates compliance with international standards of Good Manufacturing Practices and Good

    Hygiene Practices issued by CODEX and Codex General Guidelines for use of the term “Halal “CAC/GL 24-1997. Others international standards applicable to halal

    products are the Codex Recommended Code of Hygienic Practice for Fresh Meat

    (CAC/RCP 11) for slaughtered animals and Codex General Principles on Food

    Hygiene and other relevant Codex Standards.15

    Department of Standards Malaysia

    had issued numerous standards for halal manufacturers which do not only focus on

    Islamic requirements but also on total quality management suited for consumers’

    irrespective of religion. Standards of Halal products are as outline in Table 1.

    Table 1: List of Standards issued by Department of Standards, Malaysia

    1 Malaysian Standards Halal pharmaceuticals - General guidelines MS 2424:2012

    2 Halalan Toyyiban Assurance Pipeline – Part 1: Management System

    Requirements for Transportation of Goods and?or Cargo Chain Services MS

    2400-1:2010

    3 Halalan Toyyiban Assurance Pipeline – Part 2: Management System

    Requirements for Warehousing and Related Activities MS 2400-2:2010

    4 Halalan Toyyiban Assurance Pipeline – Part 3: Management System

    Requirements for Retailing MS 2400-3:2010

    5 Malaysian Standars on Halal includes Halal Food Production Handling and

    Storage General Guideline (Rev 2) MS) 1500:2009

    6 Islamic Consumer Goods Part 1: Cosmetic and Personal Care General Guidelines

    MS2200: Part 1 2008

    7 Quality Management System – Requirements from Islamic Perspective MS

    1900:2005

    15 Lists of standards issued by Codex Alimentarius Commission can be found at:-

    http://www.codexalimentarius.org/standards/list-of-standards/en/

    http://www.codexalimentarius.org/standards/list-of-standards/en/

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    On top of all these Malaysian Standards are legislations that oversee products in

    Malaysia such as the Food Acts 1983 (Act 281) and Trade Descriptions Act 2011 (Act

    730). At the same time, Malaysia has a comprehensive law in regulating the quality

    and safety of products especially foods. These legislations, rules and standards are

    administered by numerous government agencies and this will be dealt in the next

    section.

  • Procedia Social and Behavioral Sciences Procedia - Social and Behavioral Sciences 00 (2011) 000–000

    www.elsevier.com/locate/procedia

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    4. Halal Matters – Federal Jurisdiction, Federal Legislation and Agencies Involved

    As a Federation, the Malaysian Constitution divides the powers between the federal government and the state governments. This division of powers is provided under Article 74 of the Federal Constitution. The whole lists of distribution of powers can be found in the Ninth Schedule of the Federal Constitution. Article 74(1) provides that the federal Parliament has the power to enact laws on any matters enumerated in the Federal List and Concurrent List. On the other hand, the State Legislative Assembly has the power to pass any laws on matters contained in the State List and Concurrent List. A close scrutiny of the lists shows that Halal matters touched upon six subject matters under the Federal List, two subject matters under the State List, one subject matter under the Concurrent List and one subject matter under List IIIA – Supplement to Concurrent List for Sabah and Sarawak. Therefore, it can be said halal administration and enforcement is a subject matter intertwined between federal and state jurisdictions. This section is going to deal with halal matters within federal jurisdiction, federal legislations enacted dealing with the matter and the federal agencies involved. This is shows in Table 2

    Table 2: List of subject matter on Federal-State on Halal

    Federal List State List Concurent List Item 8: Production, supply and distribution of goods; adulteration of foodstuffs and other goods; Trade Commerce , Industry

    Item 1: the determination of matters of Islamic law

    Item 4. Animal husbandry;

    prevention of cruelty to

    animals; veterinary

    services; animal quarantine.

    Item 12: Scientific research Item 4. Local government List IIIA—Supplement to

    Concurrent List for States

    of

    Sabah and Sarawak Item 14: Medicine, health and pharmaceutical

    Item 11. Adulteration of

    foodstuffs and other goods

    With regards to the Federal List in the Ninth Schedule of the Federal Constitution,

    mostly, halal matters are related to Item 8, that is, trade, commerce and industry. Halal

    also touched on Item 12 (scientific research) and Item 14 (medicine, health and

    pharmaceutical). In the State List, the subjects matters relevant to halal is Item 1on the

    determination of matters of Islamic law and Item 4 on local government, while in the

    Concurrent List is Item 4 on Animal husbandry; prevention of cruelty to animals;

    veterinary services; animal quarantine. For Sabah and Sarawak there is a Supplement

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    Concurrent List and the relevant item is Item 11 on adulteration of foodstuffs and other

    goods

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    4.1 Halal as a food control and consumer protection matter The halal status of food and drink is always an issue for Muslims because it is important that the consumables are permissible in the eyes of Syariah. Clause (a) of Item 8 describes that trade, commerce and industry include production, supply and distribution of goods; price control and food control; adulteration of food stuffs and other goods. By virtue of this item, halal can be considered as a food control and consumer protection matter because halal also relates to food safety. It is under this item that the Parliament enacted the Food Act 1983 and the Consumer Protection Act 1999. The Food Act contains provisions relating to labeling, hygiene practices and food safety while the Consumer Protection Act consists of consumers’ rights, offences affecting consumers’ right and the National Consumer Tribunal. The ministry in charge of consumer protection is the Ministry of Domestic Trade and Consumerism while the Ministry of Health is in charge of food hygiene and food regulations.

    4.2 Halal as a trademark Halal logo on consumer products is a trademark. Trademark is an item under clause (e) of Item 8 which includes patents; designs; inventions; trademarks and mercantile marks; copyright. JAKIM as the owner of the Halal trademark and registered the logo under the Trademark Act 1976. The official halal logo was launched in 1995. Display of this halal logo in restaurants and consumer products gave added confidence to Muslim consumer.

    16 In order for a

    product or restaurant to display the halal logo, the manufacturer of the product or the owner of the restaurant has to apply to JAKIM to get the permission to use the logo. Halal logo is considered as an expression of halal. It is a proof that certain products have fulfilled the halal certification requirements and the company which manufacture the product is entitled to have halal logo on its product. Although having halal logo is not compulsory on consumer products, the halal logo gives confidence to Muslim consumers that it has The halal logo symbolizes quality, cleanliness and safety fulfilling all Islamic law requirements. Producers are not compelled to have halal certification aand they have the option of whether to apply for this halal certification from JAKIM/JAIN or not.

    17

    Section 28 of the Trade Description Act provides the power to the Minister, in this situation, the Minister of Domestic Trade and Consumer Protection Malaysia to assign specific meaning to expressions used in trade or business. The expression ‘halal’ has been assigned specific meaning by the Minister under the Item 3(1) of Trade Descriptions (Definition of Halal) Order 2012. It states,

    16 Halal Coordination Council for Malaysia, 1997

    17 http://www.halal.gov.my/v3/index.php/en/why-halal-malaysia

    http://www.halal.gov.my/v3/index.php/en/why-halal-malaysia

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    When food or goods are described as halal or are described in any other expression to indicate that the food or goods can be consumed or used by a Muslim, such expression means that the food or goods:

    (a) Neither is nor consist or contains any part or matter of an animal that is prohibited by Hukum Syarak

    18 for a Muslim to consume or that has not been

    slaughtered in accordance with Hukum Syarak; (b) Does not contain anything which is impure according to Hukum Syarak; (c) Does not intoxicate according to Hukum Syarak; (d) Does not contain any part of human being or its yield which are not allowed

    by Hukum Syarak; (e) Is not poisonous or hazardous to health; (f) Has not been prepared, processed or manufactured using any instrument that

    is contaminated with impure according to Hukum Syarak; and (g) Has not in the course of preparing, processing or storing been in contact

    with, mixed or in close proximity to any food that fails to satisfy paragraphs (a) and (b)

    The use of ‘halal’ expression contrary to the meaning assigned in the Trade Descriptions (Definition of Halal) Order 2012 is an offence according to section 28(2) of the Trade Description Act 2011. If the offence is committed by a body corporate, the penalty is a fine not exceeding RM5 million and for a second or subsequent offence, a fine not exceeding RM10 million

    19. If the offence is committed by an individual, that

    person will be fined not exceeding RM1 million or imprisonment not more than 3 years or both and for a second or subsequent offence, a fine not more than RM5 million or imprisonment not more than 5 years or both

    20.

    The Minister of Domestic Trade, Co-operative and Consumerism has the power to specify the competent authority to certify halal and to indicate specific halal logo. Section 29(1) of the Act 2011 provides that,

    Where it appears to the Minister necessary or expedient in the interest of persons to whom any goods or any services in relation to that goods are supplied that the goods should be:- (a) certified by a competent authority; (b) marked with a mark determined by the Minister; or

    18 Item 2 of the Trade Descriptions (Definition of Halal) Order 2012 defines ‘Hukum Syarak’. It means

    the Islamic laws according to Mazhab Syafii, or the Islamic laws in any one of the other Mazhabs of

    Hanafi, Maliki or Hambali which are approved by the Yang di-Pertuan Agong to be in force in the

    Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Penang, Malacca, Sabah and Sarawak or the

    Ruler of any state to be in force in the respective state. 19

    Section 28(3)(a) of the Trade Description Act 2011 20

    Section 28(3)(b) of the Trade Description Act 2011

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    (c) accompanied by any information (whether or not amounting to or including a trade description) or instruction relating to the goods, the Minister may, by order, impose requirements for securing that the goods are so certified, marked or accompanied and regulate or prohibit the supply of the goods and the requirements may extend to the form and manner in which the information or instruction is to be given.

    The Trade Descriptions (Certification and Marking of Halal) Order 2011 is an order made under Section 29(2) of the Trade Description Act 2011. The section provides,

    (2) Where an order under this section is in force with respect to goods of any description, any person who, in the course of any trade or business:- (a) certifies; (b) marks; (c) supplies; or (d) offers to supply, goods of that description in contravention of the order commits an offence and shall, on conviction, be liable:- (A) if such person is a body corporate, to a fine not exceeding two hundred thousand ringgit, and for a second or subsequent offence, to a fine not exceeding five hundred thousand ringgit; or (B) if such person is not a body corporate, to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both, and for a second or subsequent offence, to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding five years or to both.

    JAKIM or the Federal Department of Islamic Development Malaysia, under the Prime Minister’s Department, and the state Islamic Religious Councils are the competent authority named by the Minister of Domestic Trade and Consumer Affairs under Item 3 of the Trade Descriptions (Certification and Marking of Halal) Order 2011. According to the provision, these authorities are the competent authorities to certify that any food, goods or services in relation to the food or goods is halal in accordance with the Trade Descriptions (Definition of Halal) Order 2011. In terms of certifying description of halal, Item 4(1) of the Trade Descriptions (Certification and Marking of Halal) Order 2011 provides that,

    All food and goods shall not be described as halal or be described in other expression to indicate that the food or goods can be consumed or used by a Muslim unless it is- (a) certified as halal by the competent authority; and (b) marked with the logo as specified in the First Schedule.

    4.3 Halal as a standard

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    Clause (g) of Item 8, Federal List, Ninth Schedule of the Federal Constitution states that trade, commerce and industry also involve establishment of standards of quality of goods manufactured in or exported from the Federation. Based on this provision, the Federal Legislature passed the Standards of Malaysia Act 1996 which governs all acts developed by the Department of Standard Malaysia including halal standard. The Department of Standard Malaysia is an agency under the Ministry of Science, Technology and Innovation. Halal standards, such as the Halal Food – Production, Preparation, Handling and Storage – General Guidelines (Second Revision) is developed in cooperation between the Department of Standard, the Department of Islamic Development, Department of Islamic Development Malaysia, Department of Veterinary Services, Federation of Malaysian Manufacturers, Halal Industry Development Corporation Sdn Bhd, Institute of Islamic Understanding Malaysia, Institute of Quality Malaysia, International Islamic University of Malaysia, Malaysian Agricultural Research and Development Institute, Malaysian Association of Standards Users, Ministry of Domestic Trade, Cooperative and Consumerism, Ministry of Health Malaysia (Food Safety and Quality Division), Ministry of Health Malaysia (National Pharmaceutical Control Bureau), Ministry of International Trade and Industry, Muslim Consumers’ Association of Malaysia and SIRIM Berhad acts as the Secretariat. Originally, halal was a status of permissibility for Muslims to consume or to use certain products. When manufacturers began to produce goods in line with the halal requirements, the need to have a halal standard became a necessity. According to Department of Standard Malaysia, ‘standards are required by industry, government and consumers to facilitate both domestic and international trade; enhance industrial efficiency and technological development; enforce regulations for public safety, health, environment protection and prevention of deceptive practices.’

    21

    The Minister of Science, Technology and Innovation is responsible for the approval of the draft Malaysian Standards (MS) recommended by Department of Standards Malaysia. Malaysian Standards (MS) are consensus documents developed by Standards Development Committees (SDC) within the Malaysian Standards Development System and approved by the Minister of Science, Technology and Innovation in accordance with Act 549. Malaysian Standards (MS) specifies the optimum requirements of quality and safety for voluntary use by the public. A standard becomes mandatory when a regulatory agency enforces its use through the relevant Acts or Regulations. Halal standard is one of the standard falls into the category of codes of good practice.

    22

    4.4 Halal as an industry Clause (i) and (k) of Item 8 in the Federal List describes that the federal power in trade, commerce and industry includes industries; regulation of industrial undertaking and factories; boilers and machinery and dangerous trade. This is one of the bases of the establishment of the Halal Industry Development Corporation (HDC) under the

    21 Standard Malaysia Online – http://www.smsonline.gov.my/FMainISC.jsp

    22 Standard Malaysia Online – http://www.smsonline.gov.my/FMainISC.jsp

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    Ministry of International Trade and Industry. The development of halal industry is one of the main thrust in the Malaysian Economic Development. The importance of halal development was signifying with the inclusion of halal industry in the Malaysian Industry Main Plan (2006-2020), in the Ninth Malaysia Plan and also the Tenth Malaysia Plan. In the Second Malaysian Industrial Plan (IMP2), one of the main agendas is to establish Malaysia as an international halal food and products hub. The IMP2 has identified several high potential sectors in the food processing business, which includes processing of meat products, especially the halal meat and livestock product. Malaysia External Trade Development Corporation, under the Ministry of International Trade and Industry is responsible for promoting Malaysian halal food and products under the Malaysia brand name. Ministry of International Trade and Industry (MITI) is also playing an important role in the international arena to promote Malaysia as an international halal food and products hub. Both these agencies also conduct trade exhibitions, seminars, and conferences to promote and ‘sell’ our halal food and products worldwide.

    4.5 Halal as a scientific research Item 12 touches on federal power in conducting surveys, inquiries and research. This includes (c) scientific and technical research. Several federal agencies and educational institutions are involved in the research of halal. Two federal agencies involved in research and development of halal are the Malaysia Malaysian Agricultural Research and Development Institute (MARDI) and the Department of Chemistry, under the Ministry of Science, Technology and Innovation. The latter is involved in conducting sample research and verification of its halal status while the former is responsible to carry out research and development in food processing technology. With the advancement of biotechnology in food production, MARDI is trying to find new ways of food processing, new technology, new ingredients and materials that are safe, clean, healthy and halal. Higher learning institutions, such as Universiti Putra Malaysia and International Islamic University Malaysia, have labs to conduct various researches on the development of halal product. The Ministry of Higher Education is in charge of higher learning education in Malaysia. 4.6 Halal as medicine, health and pharmaceutical matter Item 14 of Federal List states, ‘the federal government has power on medicine, health and pharmaceutical matters'. These also include (d) intoxicating drugs and liquor and manufacture and sale of drugs. This subject matter is administered by the Ministry of Health. Some of federal laws related to halal issue in medicine, health and pharmaceutical are the Poison Act 1952 and the Control of Drugs and Cosmetics Regulations 1984 (amended 2010). One of the developments in this area is nutraceuticals. According to Prof. Zhari Ismail and Abdul Halim Ehsan, “nutraceuticals usually refers to healthcare product formulated in pharmaceutical dosage forms like capsules or tablets and carry a limited health claim. They are produced under Good

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    Manufacturing Practices conditions and are currently used as evidence based healthcare products providing protection against chronic disease conditions or having physiological benefits. Examples are flavonoid antioxidants from various herbs (eg misai kucing, pegaga), beta-carotene from palm oil, anthocyanins from berries etc. Many botanical and herbal extracts such as lingzhi, tongkat ali, kunyit, etc. have been developed as nutraceuticals.”

    23 The halal status of such product must also comply with

    the Halal Pharmaceutical Standard set out by Department of Standard Malaysia. 4.7 Other related Laws Besides the abovementioned jurisdiction, legislations and agencies, other related law is the Custom Act 1967. The Royal Custom Department Malaysia is a Malaysian government agency under the Ministry of Finance. Under the Custom Act, there is the Customs Act (Prohibition of Imports) Rules 1988 touching on the importation of meat where the law states that only halal meat to be imported into Malaysia.

    5. Halal Matters – State Jurisdiction, State Legislation and Agencies Involved

    As a state matter, halal relates to the administration of Islamic matters (Item1 of State List) and the administration of local government matters (Item 4 of State List). While the states enact their own Islamic law enactments, local government matters are subject to federal law, the Local Government Act 1976. This act was created based on Article 76(1)(b) of the Federal Constitution where the federal parliament may make laws with respect to any matter in the State List for the purpose of promoting uniformity of the laws of two or more states. Originally, halal relates to the state power in the administration of Islamic matters. There are two phrases that describe state power under Item 1 of the State List. These are the “creation and punishment of offences by persons professing the religion of Islam against the precepts of that religion” and the “determination of matters of Islamic law”. Based on these two points, the states passed law consisting the power to determine matters of Islamic law under the State Administration of Islamic Law Enactment and the power to punish abuse of halal logo under the State Syariah Criminal Offences. A close scrutiny over the Islamic law enactments of all the states in Malaysia reveals that there is no specific law governing halal matters in the state. However, based on an interview conducted with one officer of the Selangor Islamic Religious Department (JAIS), he said that halal matter can be considered part of the Muslim community economic development. This can be found in section 7(1) of the Selangor Administration of Islamic Law Enactment 2003. It states,

    23 Zhari Ismail, Abdul Halim Ehsan: 2008

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    It is the responsibility of the Majlis to encourage, enhance, assist and strive for the social and Economic development and prosperity of the Muslim community…. The real fact is that halal certification entails certain fees upon the manufacturers and restaurant owner. This is considered as an economic activity because it brings revenue to the state Islamic religious authority. Another state provision regarding halal is section 38 of the Syariah Criminal Offences (Selangor) 1995. It provides,

    Any person who displays, on any food or drink which is not halal, any sign which indicates that such food or drink is halal shall be guilty of an offence and shall be liable on conviction to a fine not exceeding two thousand ringgit or to imprisonment for a term not exceeding one year or to both.

    This provision creates an offence when any Muslims abuse any type of halal expression. Unfortunately, statistics shows that majority of the manufacturers are non-Muslims. If any of the non-Muslim manufacturers abuse the halal logo or trademark, they cannot be punished under this provision because the syariah court does not have any jurisdiction upon non-Muslims. The latest enforcement of Trade Description Act 2011 describes that the only competent authority to give halal certification are JAKIM and state Islamic Religious Councils. Any other body cannot give such certification. In Selangor, the State Islamic Religious Council has officially prohibits any other body to give halal certification since 2010. Any individual or body who commits such offence may be charger under section 12 of the Syariah Criminal Offences (Selangor) 1995 which provides.

    Any person who acts in contempt of the lawful authority, or defies, disobeys or disputes the lawful orders or directions, of – (a) His Royal Highness the Sultan in His capacity as the Head of the religion of

    Islam; (b) The Majlis (c) The Mufti, expressed or given by way of a fatwa, shall be guilty of an offence and shall on conviction be liable to a fine not exceeding three thousand ringgit or to imprisonment for a term not exceeding two years or to both.

    Only the state of Pahang has Administration of Islamic Law Regulations on Halal Certification Mark Order 1998.

    6. Halal Matters – Concurrent Jurisdiction

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    Concurrent List or List III enumerates subject matters shared between federal and state governments. Both levels of government have the power to legislate concurrent matters. This is explained under Article 79 of the Federal Constitution. Halal involves production of food from farm to table which include animal and vegetation. Item 4 of the Concurrent List states one of the matters related to production of halal meat, that is, animal husbandry; prevention of cruelty to animals; veterinary services; animal. Animal Act 1953 (revised 2006) and its regulation regulates animal matters in Malaysia. The department in charge of animal is the Department of Veterinary Services. Other regulations relating to animal and production of halal meat are the Veterinary Public Health Ordinance 1999, Animals Act 1953 (revised 2006), the Abattoirs (Privatization) Act 1993 and Sabah Slaughter House Rules 2003

    24. Malaysian Protocol

    for Halal Meat Production was developed by the Department of Islamic Development Malaysia (JAKIM) to give clear guidance in the production of halal meat (ruminants). This protocol is intended to support the implementation of the import requirements under the Animal Rules 1962, Animals Act 1953 (reviewed 2006). This protocol shall apply to all establishments intending to export their products to Malaysia. This protocol shall be used together with the Malaysian Standard MS 1500:2009 Halal Food – Production, Preparation, Handling and Storage – General Guidelines (Second Revision).

    25

    Halal also relates to public health. Item 7 of the Concurrent List states ‘public health, sanitation (excluding sanitation in the federal capital) and the prevention of diseases. List IIIA is the Supplement to the Concurrent List for Sabah and Sarawak. Item 11 of the List IIIA touches on adulteration of foodstuffs and other goods.

    7. Halal as a Shared Value in Malaysian Multi-Religious Society

    The above elaboration on halal as a fundamental right and as a matter intertwined between the federal and state jurisdiction in Malaysia shows the intricacy of halal subject matter in Malaysia. As one of the leading country in the administration of halal matters, Malaysia has established the standard of halal in line with the standard of food quality, food safety and hygiene. The various halal standards formulated by cooperation between various stakeholders have slowly become the common standard between the people of various religious and racial backgrounds in Malaysia. The pursuit of the ideals of being provided with good, clean, healthy, and nutritious food and products is universal to all human societies. However, the universality of these ideas is subjects to the cultural and religious belief of the members of the society. Halal products do not

    24 FAQ on Malaysian Halal Certification - http://www.halal.gov.my/ehalal/pdf/FAQ_english.pdf

    25 Malaysian Protocol for Halal Meat Production -

    http://www.dvs.gov.my/c/document_library/get_file?uuid=1b5ebee8-7ac3-43b4-b59f-

    4fa37f40ea5c&groupId=28711

    http://www.halal.gov.my/ehalal/pdf/FAQ_english.pdf

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    violate the cultural and religious belief of the members of society since the benefits of halal products surpassed all odds. This paper tries to show that halal products are consistent with the national and international standards and circumstances. It is not supposed to be viewed as imposing religious duties on believers of other religions. If there is discontentment, all differences can be resolved by way of “internal discourse and cross cultural dialogue to realize the shared ideals of dignity, liberty and well-being for all”.

    26

    8. Conclusion

    Halal was a point of contention between the federal and the state government before the enforcement of the Trade Description Act 2011. Since the enforcement of the Act at 1

    st

    January 2012, it has resolved many issues relating to halal definition, halal marking and halal certification body. Unfortunately, action can only be taken if a person or a body abuses the halal expression. It is still not compulsory to have the halal logo displayed. Nevertheless, the incorporation of halal standard into the Trade Description (Halal Definition) Order 2011 has made the definition of halal more comprehensive where it includes food hygiene and food safety. This made halal as a common standard for all, regardless of religious preference.

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