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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 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
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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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687
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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688
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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689
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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690
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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691
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.
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Procedia Social and Behavioral Sciences Procedia - Social and
Behavioral Sciences 00 (2011) 000–000
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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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694
Concurrent List and the relevant item is Item 11 on adulteration
of foodstuffs and other
goods
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695
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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696
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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697
(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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698
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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700
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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701
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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702
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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703
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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