ISSUANCE OF HALAL CERTIFICATES IS A FEDERAL MATTER

ISSUANCE OF HALAL CERTIFICATES IS A FEDERAL MATTER
By
Tun Abdul Hamid Mohamad

 

Introduction

Not all matters regarding Islam are under the jurisdiction of the states. Of course, to know whether a product is halal or not, it should be referred to the State Fatwa Committee. However, the fatwa is only in force in that state.

However, the “halal” mark placed on a product and evidenced by the halal certificate is a trade description under the Trade Description Act 2011 (TDA 2011) which lies under federal jurisdiction. It is similar to Islamic banking and Islamic finance. Banking and finance are under federal jurisdiction. Whether they are “Islamic” or “conventional” are the descriptions of the type of banking and finance.

We can summarise the current position on the issue of halal certificates as follows:

1. Issuance of halal certificates lies under the jurisdiction of the Ministry of Domestic Trade, Cooperatives and Consumerism (MDTCC or KPDNKK).

2. The law is the TDA 2011 which lies under the KPDNKK portfolio.

3. “Halal” is one of the trade descriptions under the act;

4. All authorities with regard thereto vest on the Controller, Deputy Controllers and Assistant Controllers appointed by the Minister in accordance with section 3 of the act.

5. The power to prosecute, as always, lies with the Public Prosecutor.

6. The Department of Islamic Development Malaysia (DIDM or JAKIM) and the State Islamic Religious Council (SIRC or MAIN) are appointed by the Minister as the Authoritative Authority to issue halal certificates.

7. All applications for halal certification are made to JAKIM or MAIN.

Why it should not be placed under state jurisdiction?

First, halal certification is a trade description which lies under federal jurisdiction. The state has no power to issue the certificates.

Secondly, the issue of halal certificates does not only involve issues of Islamic law. Before the ruling on the law could be made, we need to know the contents of a product. If it is an animal, you will be able to determine from how it looks and its characteristics. However, for products that have been processed, scientific tests need to be done. Muftis, ulamas or ustazs do not know everything. Expertise other than Islamic law is also required. These include services contributed by the Department of Chemistry, the Ministry of Health, the Department of Veterinary Services and others. These departments are the federal departments.

Thirdly, the certificate issued by the State Islamic Religious Department (SIRD or JAIN) or MAIN of a state is only effective in the state. Therefore, a company wishing to market its products in Malaysia needs to apply for halal certificates from each of the states to make it enforceable throughout Malaysia. This will slow down the process of obtaining the certificates and will cost more. Upon receipt of the application, each state will conduct similar examinations and tests, duplicating the work.

Fourth, investigation and prosecution are two very important matters. If it is placed under state jurisdiction (in my opinion it cannot be done because it lies under federal jurisdiction), will the offenses be tried by the civil or the syariah courts? Syariah courts have no jurisdiction over non-Muslims, including companies. (A limited company is not “a person professing the religion of Islam” because a company is neither a Muslim or a non-Muslim.) The effect is that, a non-Muslim individual and a company cannot be charged in syariah courts for halal certification offences.

Proposed changes need to be made

I think the existing federal jurisdiction over the matter should not be changed. It will cause more problems. The matter should remain under the responsibility of KPDNKK. That Ministry should be made responsible to do what need be done in respect of it.

Now KPDNKK only acts as a “Controller”. Certification, supervision, investigation and prosecution are delegated to JAKIM, JAIN and MAIN, all of which are religious departments and most of its officers are qualified in syariah, Islamic studies and Arabic language and literature, which are not directly relevant to the work.

I think that all work relation halal certification should be carried out by KPDNKK just like any other trade description matters. If there is no halal certification department in the ministry at present, a new division may be established, under which certification, enforcement, investigation, prosecution and other necessary subdivisions, may be placed

I understand that KPDNKK has its branches in the states. All of them could be used to handle matters relating to the issuance of halal certificates, just like matters pertaining to other trade descriptions are currently being done.

For scientific tests, the cooperation of relevant departments in the states may be requested.

Determination of syariah issues

I think syariah issues seldom arise. What is permissible (halal) and prohibited (haram) are known. For example, extracts from prohibited animals, like pigs, are prohibited. It does not require another fatwa. The problem is to determine whether or not its extract is in a product. What is required is a scientific test, not a syariah ruling (fatwa).

However, I propose that the determination of the syariah issues for the halal industry under TDA 2011 be done by the National Fatwa Committee (NFC). For that purpose, the NFC may be given legal powers similar to the Syariah Advisory Council of Bank Negara (SACBN) and the Syariah Advisory Council of the Securities Commission. (SACSS) in accordance with Paragraph 4 (k), List I (Federal List), Ninth Schedule of the Federal Constitution which provides:

“(k) Ascertainment of Islamic law and other personal laws for purposes of federal law; and”

It should be done by enacting an act of Parliament which could be called the National Fatwa Council Act (NFCA). Power may be granted to it to determine and issue rulings of Islamic law for the purpose of federal law other than matters under the SACBN and SACSC. It should not duplicate natters under the jurisdictions of SACBN and SACSC. To know the reasons, please refer to my speeches, working papers and articles on the subject, available on my websites.

Conclusion

1. Power to issue halal certificates and matters related thereto is a federal matter and should remain as a federal matter under the portfolio of KPDNKK. It should be the responsibility of the ministry to undertake all works related thereto in the same way as it does in respect of other trade description matters.

2. For the purpose of determining syariah issues and issuing rulings thereon for the purpose of federal law including syariah issues pertaining to halal industry, but excluding matters falling under jurisdiction of the SACBN and SACSS, the NFCA should be enacted. This will give legal authority to NFC and its rulings enforceable throughout Malaysia.

Final words

I fear that, because of misunderstanding on jurisdiction plus the prejudice against JAKIM, halal certification will be handed over to the states. Such action is not only contradictory to the Constitution, but I believe, it will undermine Malaysia’s halal industry and will impede Malaysia’s efforts to become the hub for halal industry. Similar to Islamic banking and finance, Malaysia is already in the forefront, therefore, we should not do something that might jeopardise Malaysia’s position, what more, due to our misunderstanding of the true position.

17 08 2018

tunabdulhamid@gmail.com
www.tunabdulhamid.my
www.tunabdulhamid.me

28 visits