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INHAC 2012 Kuala Lumpur

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


2012

Halal Products Malaysian Constitution Perspective


Faridah Jalil1, Nurhafilah Musa2
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
faridah@ukm.my
2
hafilah@ukm.my
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)
685

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


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
686

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


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 ones 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
687
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
688
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 Gods 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
689
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/
690
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.

691
Procedia
Social and
Behavioral
Procedia - Social and Behavioral Sciences 00 (2011) 000000 Sciences
www.elsevier.com/locate/procedia
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 Item 1: the determination Item 4. Animal husbandry;
and distribution of goods; of matters of Islamic law prevention of cruelty to
adulteration of foodstuffs animals; veterinary
and other goods; Trade
Commerce , Industry services; animal quarantine.

Item 12: Scientific research Item 4. Local government List IIIASupplement to


Concurrent List for States
of
Sabah and Sarawak
Item 14: Medicine, health Item 11. Adulteration of
and pharmaceutical 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

693
Concurrent List and the relevant item is Item 11 on adulteration of foodstuffs and other
goods

694
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
695
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 Syarak18 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 million19. 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 both20.

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
696
(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
Ministers 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

697
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
698
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

699
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
700
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

701
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 200324. 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
702
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 1st
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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