Jakim has no authority to raid and take action against premises exhibiting “no pork” signs. The legal aspect is clear no offence putting the sign

Jakim no power to act against premises with ‘no pork’ signage


Published: 18 February 2016 5:49 PM

Jakim director-general Datuk Othman Mustapha says it has no authority to raid premises displaying the 'no pork' signs. – The Malaysian Insider file pic, February 18, 2016.

The Malaysian Islamic Development Department (Jakim) has no authority to raid and take action against premises exhibiting “no pork” signs.

Its director-general Datuk Othman Mustapha said such raids and actions were under the jurisdiction of the Domestic Trade, Cooperatives and Consumerism Ministry (KPDNKK).

"Jakim, state religious departments, KPDNKK and other related (enforcement) agencies have a special committee on the halal sign," he said today. Othman said the application for halal certification was voluntary and any quarter intending to do so must follow the stipulated procedure.



"The term 'no pork' tells consumers who don't eat pork that the premises don't serve pork. The halal term not only covers the aspect of pork but also chicken which are not slaughtered according to Islam."

In this regard, Othman said consumers, especially Muslims, must pick business premises that exhibited the halal logo to avoid any doubt. – Bernama, February 18

- See more at: http://www.themalaysianinsider.com/malaysia/article/jakim-no-power-to-act-against-premises-with-no-pork-signage#sthash.QX5h7yjd.dpuf

MALAYMAILONLINE

KUALA LUMPUR, Feb 19 ― Food outlets claiming to be pork-free will only be breaking the law if they sell pork, lawyers have said amid a ministry’s insistence that such signs mislead Muslims.

Lawyers Edwin Lee and Nick Yap told Malay Mail Online that eateries that do so would be misrepresenting themselves if they served pork when claiming that they do not, but not otherwise.

“If a sign says that the outlet is pork-free, it will only be an offence under Section 7 of the Trade Descriptions Act 2011 which states that a false trade description is a trade description which is false to a material degree.

“Therefore, it will only be a breach if the outlet is not actually pork-free,” Lee said in the response prepared with Yap's assistance.

As for food outlets that display “pork-free” signs despite not having halal certification from the authorities, Lee and Yap noted that Malaysia's legal requirements for halal recognition goes beyond the absence of pork.

They pointed out that Section 4(1) of the Trade Descriptions (Certification and Marking of Halal) Order 2011 states that no goods and foods shall be described as halal unless it is certified by the Malaysian Islamic Development Department (Jakim) and marked with the Halal logo.

Both added that Jakim's guidelines and Malaysia’s Halal Certification Circular Number 2 Of 2014 on Halal food preparation do not just encapsulate pork-free issues, but a host of other issues such as hygiene, slaughter and preparation methods.

As such, outlets that display signs indicating that they do not serve pork cannot be considered to be representing themselves as halal-certified, they explained.

“Therefore, it cannot be said that it would be an offence to display pork-free signs just because the outlets do not have a halal certification,” the corporate lawyers said.

They pointed out that the term “halal” itself encompasses more than just pork-free, citing Section 3 of the Trade Descriptions (Definition of Halal) Order 2011 that defines when products are described as halal and permissible for consumption by Muslims.

In a long list of conditions under Section 3, halal products must not contain anything impure or any animal parts that Muslims cannot eat under Islamic law, and cannot have been in contact or be in close proximity to such items during preparation or storage.

Among others, halal products are also required to not be intoxicating or contain human parts; to not be poisonous or a hazard to health and to not have been prepared or processed using instruments contaminated by what is considered to be impure in Islamic law.

Civil law practitioner Kokila Vaani Vadiveloo said the use of the pork-free phrase without religious overtones should not be problematic and that outlets that did so should not be penalised for not being halal-certified.

She argued that such a phrase simply meant that no pork is served at the outlet and does not amount to a claim of meeting halal certification requirements under local laws.

“Furthermore, the description is not a matter that is directly in relation to the religion of Islam. The phrase ‘pork-free’ or ‘no pork’ does not distinctly relate to the religion of Islam as people may generally refrain from eating pork for different reasons best known to them,” she told Malay Mail Online as she argued such signages did not breach Section 4 of the Trade Descriptions (Definitions of Halal) Order 2011.

Another lawyer, Nizam Bashir, said whether the display of a “pork-free” sign amounts to an offence under Section 4 would depend on the specific facts of each case.

Although a “pork-free” sign does not necessarily mean that an outlet claims its food can be consumed by Muslims, all that is required for Section 4 to apply is when there is a “probability” of a person being misled or confused to think so, he said.

“Food outlets which have put up “pork-free” signs are, arguably, attempting to pass off - albeit indirectly – their food as being halal or as being consumable by a Muslim and likely to mislead or confuse Muslims in that regard. This will, however, be dependant on the facts and in suitable cases, their actions may be contrary to Section 4 TDO 2011,” he said.

Various issues have to be considered in determining if a “pork-free” sign would be likely to confuse a person, with there being a higher likelihood of young children being misled into believing the food is halal, Nizam said.

But he questioned if Section 4 was drafted to exclude food outlet operators that genuinely want to alert customers who suffer allergic reaction from consuming mammal meat that their food is only pork-free, citing the terms “gluten free” and “nut free” as an analogy.

“However, if that is so, then the use of the label ‘pork-free’ ought to be regulated on the ground of public health to ensure that food outlet operators do not engage in false and misleading trade practice in that regard,” he said.

A clear-cut breach of Section 4 would be when an outlet with a “pork-free” sign sells pork, he said.

On Tuesday, Domestic Trade, Cooperatives and Consumerism Minister Datuk Seri Hamzah Zainuddin said his ministry will look into the selection of a specific definition and usage to avoid any further confusion and doubt over the use of the “pork-free” sign.

On the same day, Jakim director-general Datuk Othman Mustapha said food outlets without halal certification may have their own reasons for displaying the pork-free sign, but said such actions risked confusing consumers, especially Muslims.

Pork is among various items considered “haram” or forbidden to Muslims. Conversely, “halal” means permissible to followers of Islam.

Advising consumers to be wise in their food choices in any food outlets, he said the Halal Malaysia logo would be the best guide to determine if such food were suitable for Muslims and later stated that it would move in line with any decision on this matter by the consumerism ministry and the Islamic affairs departments of the respective states.

The enforcement chief of Hamzah’s ministry had last weekend said action can be taken under Section 28 of the Trade Descriptions Act 2011 for the alleged attempt to confuse Muslims, with punishments of a maximum RM5 million fine for companies and a maximum RM1 million fine or maximum three-year jail term for individuals.

Section 29 of the same Act was also cited, which carries punishments of a maximum RM200,000 fine for companies, or a maximum RM100,000 fine or maximum three-year jail term for individuals.

- See more at: http://www.themalaymailonline.com/malaysia/article/pork-free-sign-only-an-offence-if-outlets-sell-pork-lawyers-say#sthash.IHHIe5OR.dpuf