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Administration and Enforcement of Halal Certification in Malaysia –
a Possibility towards Cooperative Federalism
Faridah Jalil*1, Nurhafilah Musa 2
1, 2 Law Faculty, National University Malaysia, Malaysia.
(E-mail: faridah@ukm.edu.my, hafilah@ukm.edu.my)
ABSTRACT
Islamic matters in Malaysia, including administration and enforcement of halal
certification, are administered by two levels of government, the federal government and the
state governments. Despite the distribution of powers stated in the Malaysian Constitution,
there are many areas of complexities in the administration of Islamic matters. These
complexities can be divided into two categories; first, concerning power and jurisdiction
and second, about structure and administration. This paper contends that cooperative
federalism may be able to overcome some of the problems caused by the constitutional
division of powers in the administration of Islamic matters in Malaysia. The conundrum of
administration of halal certification and enforcement in Selangor, one of the states forming
the federation, is selected as the case study to understand the complexities and the
potentials of cooperative federalism as the solutions to the complications. The problems in
the administration of halal certification and enforcement in the state of Selangor may be
resolved by way of implementing relevant cooperative federalism mechanism. The
proposed cooperative federalism mechanisms may be applied in other states in Malaysia
and other area of conflicts in the administration of Islamic matters. This paper will explore
on the appropriate federalism mechanism structure taking into account the existing
structure together with legal, political and administrative challenges to be encountered in
the process of implementing the proposed mechanisms.
Keywords: halal, cooperative federalism.
Corresponding author address: hafilah@ukm.edu.my
__________________________________________________________________________
INTRODUCTION
The Cadbury Controversy which took place between May and June 2014 is an example of
how some Malaysian Muslims reacted to halal issue. It is also a demonstration of how
Malaysian authorities respond to the furore. This controversy reflects upon the Malaysian
Muslims’ understanding on the halal certification issue and their knowledge and
understanding of the complex federalism issue relating to halal in the Federal Constitution.
It is no surprise that many Muslims are still not clear which ministry and department
actually has the power to take action in halal issues. In the context of administration and
enforcement of halal enforcement, this paper contends that cooperative federalism will be
MIHREC 2014
Putrajaya, Malaysia, December 2-4, 2014
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able to facilitate the administration of halal certification and the enforcement of the law and
regulations on halal. This paper uses qualitative approach by looking at the current legal
and administrative framework.
The paper begins by explaining the relevance of cooperative federalism in the
administration and enforcement of halal certification in Malaysia. It argues on two points
where cooperative federalism principle is workable for the administration and enforcement
of halal certification; first, in the aspect of power and jurisdiction, and second, in the aspect
of structure and administration. In the process of implementing cooperative federalism
there are legal, political and administrative challenges that will be encountered. The paper
concludes with some recommendations.
2. Cooperative Federalism and its Relevance to the Administration and Enforcement
of Halal Certification
The development of Malaysian Federalism is strongly influenced by the Reid
Commission’s term of reference when they prepared the draft of the Merdeka Constitution,
that is, to make recommendation for the “establishment of a strong central government
with the States and Settlements enjoying a measure of autonomy….and with machinery for
consolation between the central Government and the States and Settlements on certain
financial matters to be specified in the Constitutions”. This recommendation has been
strictly adhered to as the Ninth Schedule of the Federal Constitution outlines the division of
legislative powers between the Federation and States shows that the Federation enjoys
more powers than the States. Since the allocation of administrative powers follow that of
legislative powers, according Article 80 of the Federal Constitution, the Federal executive
enjoys more power than the State executives. The scheme of allocation of powers between
the Federation and the States is far from perfect and is a point of contestation for example
in regards of royalties on exploitation of natural resources and water management. This
setting causes Malaysian Constitutional scholars and politicians to reckon that cooperation
among states in not possible.
However, the centripetal power does not obstruct cooperation as further reading into the
Reid Commission Report indicates that the spirit of cooperative federalism is alive, the
report says: “When we say that exclusive responsibility should rest with the Federal
Government or with the State Government as the case may be we do not intend to hamper
or discourage cooperation between the State and the Federation. On the contrary we think
that close cooperation between them will promote the interests of all concerned and be of
great benefit to the nation”. Watts observed that, even though one of the fundamental
characters of a federal system is a political system characterized by two sub-systems that
are neither politically subordinate to each other, but at certain point the two do interact in a
cooperative and competitively manner. Cooperative Federalism denotes that although the
federation may possess more power than the state, there will be instances when both may
acts cooperatively especially in solving common problem. The need to resolve common
problem will cause both parties to disregards the segregation and overlapping of power and
embraced cooperation.
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3. Distribution of Powers in the Administration and Enforcement of Halal
Certification
The constitutional division of powers reveals that the subject of halal correlates to several
items in the Legislative List of the Ninth Schedule. The table below shows the correlation
and explains subject matters in the Federal, State and Concurrent List that touch on halal.
Table 1: List of Subject Matter in the Ninth Schedule of the Federal Constitution relating to halal
Federal List
State List
Concurrent List
Supplement to Concurrent
List for Sabah and
Sarawak
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 11: Adulteration of
foodstuffs and other
goods
Item 12: Scientific
research
Item 3:
Agriculture and
forestry
Item 7 – Public
health and sanitation
Item 14: Medicine,
health and
pharmaceutical
Item 4: local
government
Table 2: Federal and State Power in the Administration and Enforcement of Halal Certification
Subject Matter under Federal List
Ministry& Agency in charge
Legislation
Item 8 (a) - Halal as a Food Control
and Consumer Protection Matter
Domestic Trade and Consumer
Affairs
Food Act
Consumer Protection
Act
Item 8 (e) - Halal as a Trademark
Domestic Trade and Consumer
Affairs, JAKIM under Prime
Minister’s Department
Trade Description Act
Item 8 (g) - Halal as a Standard
Science, Technology &
Innovation (MOSTI)
Standards Malaysia Act
Item 8 (i) & (k) - Halal as an
Industry
Halal Industry Development
Corporation (HIDC) under
Ministry of International Trade
(MITI)
Item 12 (c) - Halal as a Scientific
Research
Malaysia Agriculture and
Research Development Institute
(MARDI) under Ministry of
Agriculture (MOA)
MARDI Act
Item 14 - Halal as a Medicine,
Health & Pharmaceutical Matter
Health
Poison Act
Subject Matter under State List
Ministry or Agency in charge
Legislation
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creation and punishment of offences
by persons professing the religion of
Islam against the precepts of that
religion (abuse of halal sign as a
syariah criminal offence)
State Islamic Religious
Department
Selangor Syariah
Criminal Offence
Enactment
determination of matters of Islamic
law (determination of whether a
product is halal or haram)
State Department of Mufti
Local Government (Licensing and
cleanliness of food premise)
Local councils in the states
Local Government Act
and other relevant
subsidiary laws enacted
thereunder
The understanding on the operation of constitutional division of powers in the Federal
Constitution has caused some problems in the administration of halal Islamic matters in
Malaysia, namely in the context of administration and enforcement of halal certification,
which can be divided into two aspects; firstly, on the power to enforce the law on halal
matters that relates to the issues of, is there adequate legal framework on halal and what is
the appropriate court to enforce the law and a secondly, on the structure of the
administrative agencies that will administer the rules and regulations on halal.
4. Implementation of Cooperative Federalism in the Administration and
Enforcement of Halal Certification in Malaysia
There are several ways to implement cooperative federalism in the administration and
enforcement of halal certification in Malaysia. The spirit of cooperative federalism in the
Malaysian Constitution is presence with the existence of several intergovernmental bodies
such as the National Land Council, National Finance Council and the National Council of
Local Government. The existence of these bodies implies that the states and the federal
government discuss matters of common interest regularly and actions are taken based on
mutual agreement reached in the meeting. However, there is no express cooperation clause
that impose obligation on both level of governments to collaborate and support each other
in the fulfillment of their tasks or confer administrative and judicial assistance when there
is a need, in other areas including halal. Thus, cooperation, in most instances, becomes
optional. The insertion of the cooperation clause, for example, in the Constitution of
Switzerland, causes the act of collaborating to become a constitutional obligation. If either
of the government refuses to cooperate with each other unreasonably, the government is
acting unconstitutionally.
Since cooperation is not a mandatory aspect in the relationship between the federal and the
states’ government in Malaysia, this paper proposed that, in order to establish cooperation
between the federation and states, express cooperation clause should be inserted in the
Federal Constitution and the states’ constitution. The insertion of the cooperative clause is
vital to ensure that, both, the federal and the state government will cooperate in order to
fulfill their constitutional responsibility.
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The administration and enforcement of halal certification involves multiple levels of
government agencies as can be seen in Table 1 and 2. This creates disparity of jurisdiction
between agencies and law. For example, the Syariah Court has the power to try the offence
of abusing halal logo or certification committed by the Muslims but no power to try non-
Muslims or manufacturing companies. At the same time, Trade Description Act 2011
prescribes certain provisions on the offence relating to misrepresentation of halal
trademark. Therefore, there is a discrepancy in how halal trademark is enforced.
Some of the methods to overcome this discrepancy, if both federation and states can agree
upon the establishment of Joint Committee for Drafting Law and Regulations; the
establishment of Joint Halal Authority and improving the current structure of National
Food Security Council by including a specific committee in charge of halal. The
establishment of Joint-Committee for Drafting Law and Regulations may bring uniformity
in the law regulating halal activities, while the Joint Halal Authority may deals with the
application for Halal certification, conduct joint audit process after application or
reapplication and enforcement of halal certification.
5. Conclusion
For decades, most parties in Malaysia understood federalism as superiority of the federal
government. However, the intricacy of the administration and enforcement of halal
certification as discussed in this paper, suggests that the idea of federal government
superiority is erroneous. There is an avenue for cooperation provided in the constitution to
overcome the differences between federal and state agencies. Cooperation is demanded as
this subject touches the sanctity of Islam and economic potential of halal industry. It is
however interesting to see how both level of governments, if rule by different political
parties, overcome their political differences.
ACKNOWLEDGEMENTS
This paper is written under research grant Cabaran Membina Negara, sub- projek Social
Cohesion and Federalism (LRGS/BU/2011/UKM/CMN)
REFERENCES
Faridah Jalil, Nurhafilah Musa. (2012) Halal Products – Malaysian Constitution
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Watts, Ronald L. (1970) Administration in federal systems, London: Hutchinson
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