A LEGAL ANALYSIS ON THE MEAT CARTELS IN MALAYSIA

Muhammad Asyraf Bin Abdul Halim (p115360@siswa.ukm.edu.my); Mohd Zamre Mohd Zahir (zamre@ukm.edu.my); Hasani Mohd. Ali (hmohdali@ukm.edu.my); and Muhamad Sayuti Hassan (sayutihassan@ukm.edu.my).

National University of Malaysia

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ABSTRACT

A cartel is an agreement between several individuals or companies and others of a similar nature to regulate and control prices, marketing territories, etc., with the aim of curbing competition and making a profit. There have been 137 reported cases of ‘food crime’ since 1980 and all of them were committed due to the criminal’s desire to maximise any profits that they would gain. In 2020, news reports of the seizure of 1500 tons of Haram meat distributed by smuggling cartels in four countries, China, Ukraine, Brazil and Argentina had shocked Malaysians. The main problem of this study is the food criminal usually charges against the perpetrators of food crimes are only charged under the Trade Descriptions Act 2011 and the Trade Descriptions (Certification and Halal Marking) Order 2011 as well as the Malaysian Anti-Corruption Commission Act 2009. There are more than 20 Acts that relate to Halal standards which could be enforced under the law to ensure heavier punishments are meted out on the ‘food criminal’. Next, the study will look at the extent of the issue of corporate liability such as on companies that can be imposed on individuals involved with Halal Criminal Offenses based on legislations other than the Trade Descriptions Act 2011 and the Trade Descriptions Order (Halal Certification and Marking) 2011. This paper adopts a qualitative methodology by way of data collection through analysing documents, journals and articles related to ‘food crimes’. Other than that, additional information obtained from mainstream media has also helped in completing this research. Objectives of this study are to analyse the issue of meat cartels in Malaysia particularly in regards to the case in Skudai, Johor near the end of the year 2020 and to study the laws related to Halal in Malaysia in terms of corporate liability issues found in the provisions of the law and finally to propose several amendments to the provisions of the law relating to Halal in the issue of assigning liability to companies in the issue of prosecution in criminal cases of Halal meat within the scope of Halal law in Malaysia. The finding of this writing, it will be found that JAKIM and KPDNHEP need to apply a system that can track the movement of food items, especially meat in the form of “Special Application” before the goods are sent has been registered in the “Special Application” by using Radio Frequency Identification system (RFID) to track the country of origin of imported meat and its movement before reaching Malaysia. The recommendation and conclusion of this writing are amendments that need to be made to the Animals Act 1953 (Revised 2006) by extending the jurisdiction of the Animals Act 1953 (Revised 2006) to the management of companies and above as well as amendments to increase fines and imprisonment. The Syariah Criminal Act/Enactment of the States, specific provisions to ensure that the issue of corporate liability is necessary as there are companies whose company directors are Muslims and non-Muslims who are Muslims. While the Consumer Protection Act 1999 is only by amending the way reports or claims are made according to the current system by appointing any police officer to be the Controller or Deputy Controller of the Consumer Tribunal based on the powers of the Minister provided in subsection 7 (1) of the Protection Act Consumer 1999 to facilitate public administration.

INTRODUCTION

The word “cartel” is defined in the Cambridge Dictionaryas a group of individuals or companies who join together and agree on prices between them in order to increase profits and limit competition. The word “meat” meanwhile is defined in the Cambridge Dictionary as the flesh of an animal when it is used for food. Philiph Kotler & Veronica Wong (2012) defines “cartel” or “syndicate” as an association between individuals or companies and others of the same kind to regulate and control prices, marketing territories etc., with the aim of curbing competition and making a profit.

According to Karen Everstine (2013), there have been 137 reported cases of ‘food crime’ since 1980 and all of them were committed due to the criminal’s desire to maximise any profits that they would gain. These ‘food crimes’ occur in more than ten categories of food such as seafood, fish, fruit juice, dairy products, cereal, oil and fat, honey and natural sweeteners, alcohol, spices and formula milk. Karen Everstine (2013) further states that since the financial crisis of 2007, criminal activities relating to these ‘food crimes’ have been on the rise with criminals engaging in activities such as stealing sheep, labelling foods wrongly, adding ‘ingredients’ into formula milk as is happening in China, adding colouring additives in chilli powder, turmeric powder and shrimp paste as well as the trade of fake Halal meat.

According to Mohd Farhan (2021), in 2020, news reports of the seizure of 1500 tons of Haram meat distributed by smuggling cartels in four countries, China, Ukraine, Brazil and Argentina had shocked Malaysians. The meat cartel syndicate has been established in Malaysia for many years and with this dismantling, it has opened the eyes of Malaysians regarding the existence of syndicates that carry out Halal meat crimes in Malaysia. Furthermore, according to Mohd Farhan (2021), these criminal syndicates are involved in a number of issues namely the safety hazards imposed by imported meat, the integrity of the supply chain, illegal slaughtering houses and the processing of non-Halal meat. In doing this, the cartels utilised proxy companies to speed up their processes and to hide their criminal tracks. The cartels even utilise the Malay language and Islamic sounding names for their companies so as to gain the trust of Malaysians that their products are Halal.

In Malaysia, the bodies that deal with the issue of Halal meat are JAKIM and the State Islamic Religious Council of each state which are responsible for ascertaining the Halal status of food and other products used by Muslims in Malaysia (Liziana & Mariam; Mustafa & Azlin, 2014). On the enforcement and control aspect, JAKIM is assisted by the Ministry of Domestic Trade, Co-operatives and Consumerism (now known as the Ministry of Domestic Trade and Consumer Affairs; KPDNHEP) (KPDNKK), Department of Standards Malaysia, Department of Veterinary Services, Ministry of Health (KKM), Royal Malaysian Customs Department and Local Authorities (PBT) to help maintain the Halal status in the Malaysian Market (Zulkifli, 2007). Other than those listed, JAKIM is also aided by the Halal Industry Development Corporation (HDC) in Malaysia.

According to Zalina & Siti, (2015) there are at least twenty (20) laws pertaining to the matter of Halal in Malaysia specifically in controlling the use of the Halal Certificate in Malaysia. Some of these laws are the Trade Descriptions Act 2011, Trade Descriptions (Definition of Halal) 2011, Trade Descriptions (Certification and Marking of Halal Fees) Regulations 2011, Trade Descriptions (Certification and Marking of Halal) Order 2011, Food Act 1983, Animals (Importation) Order 1962, Abattoirs (Privatization) Act 1993, Food Regulations 1985, Lembaga Kemajuan Ternakan Negara (Dissolution) Act 1983, Animals Rules 1962, Animals Act 1953 (Revision 2006), Local Government Act 1976, Local Authority By-Laws, Consumer Protection Act 1999, Customs Act 1967, State Syariah Criminal Offenses enactment and a number of other acts (Zalina & Siti, 2015).

Muhammad Farhan, (2021) states in his writing that ‘food crimes’ increase each year through data obtained which shows an increase in crimes such as the finding of horse meat in processed cow meat products in 2013 in Halal meats in Malaysia. Internationally, incidents that occur are such as the finding of pig DNA in Halal food products in the United Kingdom, discoveries made which show 22.5% of fish products imported from Italy are involved in ‘food crimes’ as the listed labels were found to be inconsistent with the actual content of the products, a 2018 finding in Corsica exposing the marketing of fake honey for export to other countries and the issue of manipulation involving fresh and used palm oil in Malaysia. The writer had referred to the issue of falsification of Halal meat status which happened in Skudai, Johor Bharu in 2020 where the writer found that the meats which Halal status was falsified on is non-Halal meat brough into Malaysia through illegal meat cartels. The writer also went into the procedures and introduction to new technology such as the RFID system to detect Halal food status which should be utilised by JAKIM in regulating the issue of Halal food products. However, the writer does not state regarding the issue of prosecution and punishment that can be imposed on the perpetrators of these ‘food crimes’ when the crime committed involves Halal issues especially to the owners of the companies involved as happened to the case of counterfeit meat cartels.

Meanwhile in Rokshanan, (2019) the discussion is in regards to the misappropriation of the Halal logo here in Malaysia by both individuals and companies in which the writing has gone into the statistics of the misappropriation of the Halal logo which happened in 2014 and the implication of misappropriating the Halal logo according to the law which is contained in the Trade Descriptions Act 2011. However, it is not stated how liability can only be imposed on only to individuals or companies how the enforcement of the law on the perpetrators of these crimes. The writer also did not go into other laws such as Trade Descriptions (Certification and Marking of Halal) Order 2011 which could also be utilised to prosecute ‘food crime’ offenders in this issue of Haram meat.

Azis Jakfar Soraji & Mohd Daud Awang, (2017) in their writing have listed one by one the laws that can be enforced for criminals involved in ‘food crime’ activities in Malaysia and stated the reason for poor implementation is due to issues of Court jurisdiction and individual experience related to Halal prosecution issues in Malaysia. Yet it does not state the extent to which the laws brought in can be enforced only on individuals alone or can also be applied to companies.

Nasihah Naimat & Elistina Abu Bakar, (2017) in their writing have stated regarding the rights of consumers according to the Rights of Consumers with reference to the ‘Declaration of Consumer Rights’ by the former President of the United States, the late J.F. Kennedy on March 15, 1962 and according to Islam. The laws that protect Halal issues in Malaysia have also been referred to, namely the Trade Descriptions Act 2011, the Food Act 1983 and the Consumer Protection Act 1999, but it is not stated specifically on who can be held responsible for food crimes committed and whether the current available provisions have protected the rights of Halal consumers in Malaysia.

Mohd Anuar Ramli & Muhamad Afiq Abd Razak (2021) the speed of technology and the Industrial Revolution 4.0 are the main reasons for the occurrence of food crimes that is happening now because the Halal Logo can be easily imitated by any company but did not state any improvement measures that needs to be done in dealing with the issue of Halal Logo fraud in food such as improvements in terms of legislation or technology that can help control the issue of Halal misappropriation in Malaysia.

Aspalella A. Rahman, Che Thalbi Ismail & Nor Anita Abdullah, (2018) in their writing have stated a number of provisions relating to Halal such as the Trade Descriptions Act 2011, Trade Descriptions (Definition of Halal) 2011, Trade Descriptions (Certification and Marking of Halal Fees) Regulations 2011, Trade Descriptions (Certification and Marking of Halal) Order 2011, Food Act 1983, Animals (Importation) Order 1962, Lembaga Kemajuan Ternakan Negara (Dissolution) Act 1983, Animals Act 1953 (Revision 2006), Abattoirs (Privatization) Act 1993, Animals Rules 1962 and Animals Act 1953 (Revision 2006). These provisions were explained briefly but the writers did not write on the reality of the enforcement of such laws in Malaysia and who is responsible for such crimes if it is committed by a company and not an individual.

Afiqah Salahudin, Mohd Anuar Ramli, Muhammad Izzul Syahmi Zulkepli & Muhd Imran Abd Razak, (2017) have stated that among the food mixtures that occur in ‘food crimes’ are mixtures of meat formalin, carcass, mixed meats, meat from cows that were forced fed water before being slaughtered, fake meat, meat from wild animals, meats containing zoonotic and meats mixed with synthetic drugs. In this paper as well, a number of methods were suggested that can be used to identify the validity of the meat’s Halal status that is brought in Malaysia. These methods are Microscopy, FTIR spectroscopy (Fourier Transform Infrared (FTIR) Spectroscopy), Electronic Nose (E-Nose), ELISA which is an immunochemical technique that is protein-based, DSC, and PCR.

Che Rosmawati Che Mohd Zaina, Suhaimi Ab Rahman, Zahira Mohd. Ishan & Shamrahayu Ab Aziz, (2014) stated one by one the laws which could be used to prosecute Halal criminals in Malaysia and further state that usually only one or two laws are used by the prosecution, namely, the Trade Descriptions Act 2011, Trade Descriptions (Definition of Halal) 2011 and the Trade Descriptions (Certification and Marking of Halal Fees) Regulations 2011. The paper contends that such a phenomenon occurs due to the weakness in the investigating officers on other laws related such as those under the Food Act 1983 which leads to a subpar preparation in the charges brought against these ‘food crimes’ offenders. Laws under the Islamic Religious Council of the States where the investigating officers are also weak in preparing cases to be prosecuted in accordance with the applicable law so that the existing laws cannot be properly implemented. In this paper it is not explicitly stated as to the description of persons who may be prosecuted in the law presented.

The research methodology is qualitatively by way of data collection through analysing documents, journals and articles related to ‘food crimes’. According to Taylor & Bogdan, (1984) qualitative data is descriptive in nature, in the form of spoken or written words regarding the behaviour of an observed person whilst according to Patton, (1990) qualitative data is a result of three types of data which are from observation, conversation and written materials. Other than that, additional information obtained from mainstream media have also helped in completing this research. This research is focused solely on the liability of ‘food crime’ offenders, both individuals and companies, according to laws related to Halal in the context of Malaysia.

The objective of this research is to analyse the issue of meat cartels in Malaysia particularly in regards to the case in Skudai, Johor near the end of the year 2020, to research on the laws regarding Halal in Malaysia on the aspect of corporate liability as contained in the legislations, and to propose several amendments to Halal related legal provisions on the issue of assigning liability to companies in the issue of prosecution in Halal meat criminal cases within the scope of Halal related laws in Malaysia.

The problem statement of this research is that Those who stand accused of these ‘food crimes’ only face charges under the Trade Descriptions Act 2011 and Trade Descriptions (Certification and Marking of Halal) Order 2011 as well as under the Malaysian Anti-Corruption Commission Act 2009. There are more than 20 Acts which relate to Halal standards which could be enforced under the law to ensure heavier punishments are meted out on the ‘food criminal’. This research will also look at corporate liability and as far as it is concerned, companies may be accused of these ‘food crimes’ should individuals in said companies commit the ‘food crimes’ based on Acts other than the Trade Descriptions Act 2011 and Trade Descriptions (Certification and Marking of Halal) Order 2011.

At the end of this research, it would be found that both JAKIM and KPDNHEP need to utilise a system that can track the journey of a particular food stuff especially meats through “Special Applications”. These food stuff would ideally be first registered on these “Special Applications” through the Radio Frequency Identification (RFID) system, where this technology is able to help track the country of origin of imported meat and its movement before reaching Malaysian consumers.

Amendments need to be made to the Animals Act 1953 (Revised 2006) by extending the jurisdiction of the Animals Act 1953 (Revised 2006) to the company’s management and above because the issue of illegal slaughter of animals is done by large companies and these companies conduct their business by distributing meats not slaughtered according to Syariah Law. Amendments should also be done to increase the current fine and imprisonment term limit which is a fine of around RM 5,000.00 and imprisonment not more than two (2) years as specified in section 5 (1) of the Animals Act 1953 (Revised 2006).

Syariah Criminal Act/Enactment of the States must have specific provisions to ensure the issue of corporate liability is necessary to have a company whose director is a Muslim and non-Muslim but when the company is subject to criminal action according to civil law the director of this Muslim company is exempt from any prosecution in any Court. In addition, an amendment can be made when a police report is obtained which then can be coordinated with the police report can also be used by religious enforcement officers to prepare investigation papers for prosecution in the Syariah Court and investigating officers need also be provided training from KPDNHEP. While the amendment that can be made to the Consumer Protection Act 1999 is only by amending the way reports or claims are made according to the current system by appointing any police officer to be the Controller or Deputy Controller of the Consumer Tribunal based on the power of the Minister provided in subsection 7 (1) The Consumer Protection Act 1999 to facilitate public administration matters.

Subsection 7(1) of the Consumer Protection Act 1999 prescribes that the Minister of Domestic Trade, Co-Operation and Consumerism (KPDNKK) (now known as the Minister of Domestic Trade and Consumer Affairs) has the power to appoint any public servant as the Controller or Deputy Controller of Consumer Affairs to help consumers lodge reports on any consumer related matters. These reports would then be further investigated by the Consumers Tribunal. Appointing police officers in every district across the country as Controllers or Deputy Controllers of Consumer Affairs may help ease aggrieved consumers who have been affected by these ‘food crimes’. This is because ‘food crimes’ usually happen in the community and more often than not, the general public would lodge police reports at Police Stations near their residence as opposed to going straight to the Consumers Tribunal. The Consumers Tribunal are also far and few between in any state. For example, in Selangor, there are only four (4) branches which are located in Shah Alam, Selayang, Kuala Selangor and Kuala Kubu Bharu. This lack of branches makes it particularly difficult for members of the community to lodge any complaints or reports with the Consumers Tribunal. The duties of police officers who are appointed as Controllers or Deputy Controllers of Consumer Affairs would thus be to only take reports or complaints from the community which will be passed on to the Consumers Tribunal who will handle any proceedings.

The Trade Descriptions Act 2011 (APD 2011), Trade Descriptions (Definition of Halal) Order 2011 and Consumer Protection Act 1999 in subsections 5(1)(A) [Prohibition of false trade description] and subsection 29 (2)(a) [Informative marking and certification orders] APD 2011 have prescribed that the company as one of the entities that can be held accountable other than the individual for the crimes committed by any individual in the company as well as all the management and above can be prosecuted for the offenses committed. However, in the Animal Act 953 (Revised 2006) and in the Syariah Criminal Acts/Enactments of the States, there are no provisions which could put liability on the company for crimes committed by individuals in said company as in section 14 of the Animal Act 1953 (Revised 2006) and Regulation 17 of the Animals (Slaughter Control) Regulations 2009 which only states that only the individual involved in the crime can be prosecuted. Therefore, it is clear that a company would not face any liability for the crimes committed by individuals who are in the said company. Only with the amendment of the provisions of the law, that is, by including the entity of the company also facing liability for crimes committed by individuals in the company will provide justice as well as prevent the management of the company and above from escaping legal punishment.

METHODOLOGY

The research methodology is qualitatively by way of data collection through analysing documents, journals and articles related to ‘food crimes’. Data can be collected from primary and secondary data (Mohd Zamre et al. 2021: Tengku Noor Azira Tengku Zainudin et al. 2021). According to Taylor & Bogdan, (1984) qualitative data is descriptive in nature, in the form of spoken or written words regarding the behaviour of an observed person whilst according to Patton, (1990) qualitative data is a result of three types of data which are from observation, conversation and written materials. Other than that, additional information obtained from mainstream media have also helped in completing this research. This research is focused solely on the liability of ‘food crime’ offenders, both individuals and companies, according to laws related to Halal in the context of Malaysia.

LITERATURE REVIEW

According to Karen Everstine (2013), there have been 137 reported cases of ‘food crime’ since 1980 and all of them were committed due to the criminal’s desire to maximise any profits that they would gain. These ‘food crimes’ occur in more than ten categories of food such as seafood, fish, fruit juice, dairy products, cereal, oil and fat, honey and natural sweeteners, alcohol, spices and formula milk. Karen Everstine (2013) further states that since the financial crisis of 2007, criminal activities relating to these ‘food crimes’ have been on the rise with criminals engaging in activities such as stealing sheep, labelling foods wrongly, adding ‘ingredients’ into formula milk as is happening in China, adding colouring additives in chilli powder, turmeric powder and shrimp paste as well as the trade of fake Halal meat. However, it is not stated here regarding the enforcement against such criminals.

According to Mohd Farhan (2021), in 2020, news reports of the seizure of 1500 tons of Haram meat distributed by smuggling cartels in four countries, China, Ukraine, Brazil and Argentina had shocked Malaysians. The meat cartel syndicate has been established in Malaysia for many years and with this dismantling, it has opened the eyes of Malaysians regarding the existence of syndicates that carry out Halal meat crimes in Malaysia. Furthermore, according to Mohd Farhan (2021), these criminal syndicates are involved in a number of issues namely the safety hazards imposed by imported meat, the integrity of the supply chain, illegal slaughtering houses and the processing of non-Halal meat. In doing this, the cartels utilised proxy companies to speed up their processes and to hide their criminal tracks. The cartels even utilise the Malay language and Islamic sounding names for their companies so as to gain the trust of Malaysians that their products are Halal. However, in this paper, it was not stated how ‘food crimes’ relating to Halal products can be prevented through legal means but rather it explains prevention through scientific means. It does however state that prosecution is only imposed on criminals based on the Trade Descriptions Act 2011 and the Informative Stamp and Certificate Order 2011 only.

In Malaysia, the bodies that deal with the issue of Halal meat are JAKIM and the State Islamic Religious Council of each state which are responsible for ascertaining the Halal status of food and other products used by Muslims in Malaysia (Liziana & Mariam; Mustafa & Azlin, 2014). On the enforcement and control aspect, JAKIM is assisted by the Ministry of Domestic Trade, Co-operatives and Consumerism (now known as the Ministry of Domestic Trade and Consumer Affairs; KPDNHEP) (KPDNKK), Department of Standards Malaysia, Department of Veterinary Services, Ministry of Health (KKM), Royal Malaysian Customs Department and Local Authorities (PBT) to help maintain the Halal status in the Malaysian Market (Zulkifli, 2007). Other than those listed, JAKIM is also aided by the Halal Industry Development Corporation (HDC) in Malaysia.

According to Zalina & Siti, (2015) there are at least twenty (20) laws pertaining to the matter of Halal in Malaysia specifically in controlling the use of the Halal Certificate in Malaysia. Some of these laws are the Trade Descriptions Act 2011, Trade Descriptions (Definition of Halal) 2011, Trade Descriptions (Certification and Marking of Halal Fees) Regulations 2011, Trade Descriptions (Certification and Marking of Halal) Order 2011, Food Act 1983, Animals (Importation) Order 1962, Abattoirs (Privatization) Act 1993, Food Regulations 1985, Lembaga Kemajuan Ternakan Negara (Dissolution) Act 1983, Animals Rules 1962, Animals Act 1953 (Revision 2006), Local Government Act 1976, Local Authority By-Laws, Consumer Protection Act 1999, Customs Act 1967, State Syariah Criminal Offenses enactment and a number of other acts (Zalina & Siti, 2015).

Muhammad Farhan, (2021) states in his writing that ‘food crimes’ increase each year through data obtained which shows an increase in crimes such as the finding of horse meat in processed cow meat products in 2013 in Halal meats in Malaysia. Internationally, incidents that occur are such as the finding of pig DNA in Halal food products in the United Kingdom, discoveries made which show 22.5% of fish products imported from Italy are involved in ‘food crimes’ as the listed labels were found to be inconsistent with the actual content of the products, a 2018 finding in Corsica exposing the marketing of fake honey for export to other countries and the issue of manipulation involving fresh and used palm oil in Malaysia. The writer had referred to the issue of falsification of Halal meat status which happened in Skudai, Johor Bharu in 2020 where the writer found that the meats which Halal status was falsified on is non-Halal meat brough into Malaysia through illegal meat cartels. The writer also went into the procedures and introduction to new technology such as the RFID system to detect Halal food status which should be utilised by JAKIM in regulating the issue of Halal food products. However, the writer does not state regarding the issue of prosecution and punishment that can be imposed on the perpetrators of these ‘food crimes’ when the crime committed involves Halal issues especially to the owners of the companies involved as happened to the case of counterfeit meat cartels. However, it is not stated here regarding the enforcement aspect against such criminals.

Meanwhile in Rokshanan, (2019) the discussion is in regard to the misappropriation of the Halal logo here in Malaysia by both individuals and companies in which the writing has gone into the statistics of the misappropriation of the Halal logo which happened in 2014 and the implication of misappropriating the Halal logo according to the law which is contained in the Trade Descriptions Act 2011. However, it is not stated how liability can only be imposed on only to individuals or companies and the enforcement of the law on the perpetrators of these crimes. The writer also did not go into other laws such as Trade Descriptions (Certification and Marking of Halal) Order 2011 which could also be utilised to prosecute ‘food crime’ offenders in this issue of Haram meat.

Azis Jakfar Soraji & Mohd Daud Awang, (2017) in their writing have listed one by one the laws that can be enforced for criminals involved in ‘food crime’ activities in Malaysia and stated the reason for poor implementation is due to issues of Court jurisdiction and individual experience related to Halal prosecution issues in Malaysia. Yet it does not state the extent to which the laws brought in can be enforced only on individuals alone or can also be applied to companies. However, it is not stated here regarding the enforcement aspect against such criminals.

Nasihah Naimat & Elistina Abu Bakar, (2017) in their writing have stated regarding the rights of consumers according to the Rights of Consumers with reference to the ‘Declaration of Consumer Rights’ by the former President of the United States, the late J.F. Kennedy on March 15, 1962 and according to Islam. The laws that protect Halal issues in Malaysia have also been referred to, namely the Trade Descriptions Act 2011, the Food Act 1983 and the Consumer Protection Act 1999, but it is not stated specifically on who can be held responsible for food crimes committed and whether the current available provisions have protected the rights of Halal consumers in Malaysia. However, it is not stated here regarding the enforcement aspect against such criminals.

Mohd Anuar Ramli & Muhamad Afiq Abd Razak (2021) the speed of technology and the Industrial Revolution 4.0 are the main reasons for the occurrence of food crimes that is happening now because the Halal Logo can be easily imitated by any company but did not state any improvement measures that needs to be done in dealing with the issue of Halal Logo fraud in food such as improvements in terms of legislation or technology that can help control the issue of Halal misappropriation in Malaysia. However, it is not stated here regarding the enforcement aspect against such criminals.

Aspalella A. Rahman, Che Thalbi Ismail & Nor Anita Abdullah, (2018) in their writing have stated a number of provisions relating to Halal such as the Trade Descriptions Act 2011, Trade Descriptions (Definition of Halal) 2011, Trade Descriptions (Certification and Marking of Halal Fees) Regulations 2011, Trade Descriptions (Certification and Marking of Halal) Order 2011, Food Act 1983, Animals (Importation) Order 1962, Lembaga Kemajuan Ternakan Negara (Dissolution) Act 1983, Animals Act 1953 (Revision 2006), Abattoirs (Privatization) Act 1993, Animals Rules 1962 and Animals Act 1953 (Revision 2006). These provisions were explained briefly but the writers did not write on the reality of the enforcement of such laws in Malaysia and who is responsible for such crimes if it is committed by a company and not an individual. However, it is not stated here regarding the enforcement aspect against such criminals.

Afiqah Salahudin, Mohd Anuar Ramli, Muhammad Izzul Syahmi Zulkepli & Muhd Imran Abd Razak, (2017) have stated that among the food mixtures that occur in ‘food crimes’ are mixtures of meat formalin, carcass, mixed meats, meat from cows that were forced fed water before being slaughtered, fake meat, meat from wild animals, meats containing zoonotic and meats mixed with synthetic drugs. In this paper as well, a number of methods were suggested that can be used to identify the validity of the meat’s Halal status that is brought in Malaysia. These methods are Microscopy, FTIR spectroscopy (Fourier Transform Infrared (FTIR) Spectroscopy), Electronic Nose (E-Nose), ELISA which is an immunochemical technique that is protein-based, DSC, and PCR. However, it is not stated here regarding the enforcement aspect against such criminals.

Che Rosmawati Che Mohd Zaina, Suhaimi Ab Rahman, Zahira Mohd. Ishan & Shamrahayu Ab Aziz, (2014) stated one by one the laws which could be used to prosecute Halal criminals in Malaysia and further state that usually only one or two laws are used by the prosecution, namely, the Trade Descriptions Act 2011, Trade Descriptions (Definition of Halal) 2011 and the Trade Descriptions (Certification and Marking of Halal Fees) Regulations 2011. The paper contends that such a phenomenon occurs due to the weakness in the investigating officers on other laws related such as those under the Food Act 1983 which leads to a subpar preparation in the charges brought against these ‘food crimes’ offenders. Laws under the Islamic Religious Council of the States where the investigating officers are also weak in preparing cases to be prosecuted in accordance with the applicable law so that the existing laws cannot be properly implemented. In this paper it is not explicitly stated as to the description of persons who may be prosecuted in the law presented. However, it is not stated here regarding the enforcement aspect against such criminals.

ILLEGAL MEAT CARTEL SYNDICATE IN MALAYSIA

The word “cartel” is defined in the Cambridge Dictionaryas a group of individuals or companies who join together and agree prices between them in order to increase profits and limit competition. The word “meat” meanwhile is defined in the Cambridge Dictionary as the flesh of an animal when it is used for food. Philiph Kotler & Veronica Wong (2012) defines “cartel” or “syndicate” as an association between individuals or companies and others of the same kind to regulate and control prices, marketing territories etc., with the aim of curbing competition and making a profit.

Near the end of 2020, news reports of the seizure of 1500 tons of Haram meat brought into and distributed by smuggling cartels from four countries, China, Ukraine, Brazil and Argentina had shocked Malaysians. This seizure was conducted by the Royal Malaysia Police (PDRM), Ministry of Domestic Trade, Co-operatives and Consumerism (KPDNKK), Department of Veterinary Services, Royal Malaysian Customs Department (KDRM) and the Malaysian Quarantine and Inspection Services (MAQIS).

According to Amanina Suhaimi, (2017) this issue of ‘meat crime’ began to be investigated in 2017 by MAQIS when it had successfully confiscated four (4) shipping containers weighing 120 tons at Pelabuhan Tanjung Pelepas, Gelang Patah, Iskandar Puteri, Johor Bahru which contained pork meat mized with sheep meat from Spain with a value amounting to around RM 2, 000,000.00. In 2019, MAQIS again confiscated 10 shipping containers containing buffalo meat with a value amounting to RM3, 500,000.00 which was brought into Malaysia from India via Pangkalan Kontena Butterworth Utara (Syajaratulhuda Mohd Rosli, 2019).

Muhammad Farhan, (2021) had stated that authorities have, during a raid on a case of illegal meat which happened near the end of 2020 in Senai, Johor, other than the prevailing issue of sketchy slaughtering methods for the cow meat brought in, found horse meat, buffalo meat and kangaroo meat being brought into the country as well as finding records of pig meat being imported. This particular factory had also repacked meat that they had in storage with fake labels and fake Halal logos on the box packaging of the meat which was then distributed in the Malaysian domestic market. On top of that, the meat believed to be Halal cow meat was changed to meat with no quality and diseased meat.

There are several clashing media reports and government agencies in this illegal meat cartel issue. One of which is the report of the finding of kangaroo meat during a raid done which had caused anxiety amongst Muslim consumers in Malaysia which KPDNHEP denied this issue. This has become the main focus when it came to the matter of status of Halal on meat products. The majority of Malaysians are Muslims which explains why the issue of the Halal status of their meat products which they have been enjoying thus far becomes a hot topic (Mohd Anuar Ramli & Muhammad Afiq Abd Razak, 2021).

Muhammad Farhan, (2021) the exposure of this criminal meat cartel has shown the weakness of the authorities in ensuring the integrity of Halal food in Malaysia which leads to the conclusion that meat cartels do this ‘food crime’ because they are driven to make purely profits without looking at the sensitivities of the Muslim population in Malaysia. Muhammad Anuar & Muhamad Afiq, (2021) states that this illegal meat cartel activity was successful due to two factors, namely using the illegal routes (rat routes) to bring illegal meat into Malaysia with the help of mafia or thugs who have a global network and the help of “insiders” in the KDRM. Accordingly, forgery of documents such as customs forms, import permits, halal certificates, and payment receipts can be done easily without being noticed by the authorities. The dirty tactic in the issue of illegal meat cartels is that proxy companies import Halal certified meat sources before mixing them with illegal meat. The smuggling of prohibited goods and products that do not meet the criteria is brought in smoothly, orderly and thoroughly (Muhammad Farhan, 2021).

Various legal provisions have been imposed on the ‘food crime’ offenders or illegal meat criminals but usually only one or two laws are used by the prosecution, namely, the Trade Descriptions Act 2011, Trade Descriptions (Definition of Halal) 2011 due to the investigating officer’s weakness or the weakness of the existing legal provisions itself (Che Rosmawati Che Mohd Zaina, Suhaimi Ab Rahmanb, Zahira Mohd. Ishanc & Shamrahayu Ab Aziz, (2014). A news report from 2021 show that a frozen good company, its director as well as manager was charged for using fake Halal logos, being implicated in the illegal meat cartel case. Several charges were drawn up against them namely under section 17(b) of the Malaysian Anti Corruption Commission Act 2009 and sections 5(1)(a) and 5(1)(c) of the Trade Descriptions Act 2011, paragraph 4(1) of the Trade Descriptions (Certification and Marking of Halal) Order 2011 which if found guilty may be fined anywhere between RM100,000.00 to RM500,000.00 or imprisonment up to 5 years or both as per subsection 5(1)(A) and (B) (Berita Harian, 2021).

ACTS REGARDING HALAL AND CORPORATE LIABILITY

1. Trade Descriptions Act 2011

For the cases that are charged in court regarding offences which involve the issue of illegal meat or ‘food crimes’, offenders are usually charged under the Trade Descriptions Act 2011 (TDA 2011) according to Che Rosmawati Che Mohd Zaina, et al, (2014) as the TDA 2011 can be utilised against both Muslims and non-Muslims in Malaysia and they will be charged in the civil courts. In fact, there is a specific provision for the Minister to appoint any civil servant to be a Controller, Deputy Controller, Assistant Controller, etc. as provided in section 3 (1) TDA 2011 which gives and advantage to JAKIM and other State Islamic Religious Council or Department (MAIN/JAIN) in conducting monitoring and law enforcement activities to entrepreneurs who violate Halal issues in Malaysia, expanding the jurisdiction of JAKIM or MAIN/JAIN. According to Liziana & Mariam, (2014) officers of JAKIM and MAIN/JAIN will be appointed as an Assistant Trade Description Officer who is given an authority card by KPDNKK as stated in the 2011 amendment thus making improvements to the definition of Halal which is now uniform at every MAIN/JAIN.

The TDA 2011 also clearly involves or includes individuals and companies where there are a number of provisions which state specifically the liabilities to be borne by the body corporate are higher than that of the individual thus ensuring that parties involved in ‘food crimes’ or Halal cannot escape legal liability especially companies as contained in subsection 5(1)(A) [Prohibition of counterfeit trade] and 29(2)(a) [Informative stamp orders and certificates] TDA 2011 for any of the offences a body corporate may be fined RM 250, 000. 00 for the first offense and for the second offense is RM 500, 000. 00.

The punishment imposed is also heavier as a lesson to companies or authorities who commit offenses under the Orders (Liziana & Mariam, 2014; Zalina & Siti 2014). JAKIM is also empowered with the same power to prosecute as KPDNKK compared to them only being a witness in any proceedings prior to the amendment made to the TDA 2011 (Liziana & Mariam, 2014). The prosecution will be conducted in a civil court based on the provisions of the law under the TDA 2011 and other relevant civil laws (Liziana & Mariam, 2014) as the civil courts have a much wider jurisdiction which includes Muslims and non-Muslims on top of being able to mete out heavier sentences compared to Syariah courts (Liziana & Mariam, 2014). However, for offenses related to Halal products which are categorized as Syariah criminal offenses, the power to prosecute lies with the State Chief Syariah Prosecutor (Liziana & Mariam, 2014). This prosecution process becomes easier for JAKIM when Paragraph 4 (3) of the Trade Descriptions (Definition of Halal) Order 2011 provides that the burden of proof lies with the accused party (Liziana & Mariam, 2014) where the accused party has to prove that they did not commit the offence.

2.     Trade Descriptions (Definition of Halal) Order 2011

The Trade Descriptions (Definition of Halal) Order 2011 [Definition of Halal Order 2011] is a subsidiary law under the parent law, TDA 2011 which in general the prosecution often accuses Halal criminals under the Definition of Halal Order 2011 which provides for the definition of Halal as well as matters that show the offense of deception and misleading as well as penalties for offenses committed by criminals related to Halal issues. Part of the reason is that the Definition of Halal Order 2011 has a clear interpretation on the issue of the form of deception and misleading of Halal food as stated in Paragraph 4. For example, the premises offer food, goods or services that are not Halal but the employees wear kopiah, songkok or tudung as commonly worn by Muslims or put the words “Allah” and “Bismillah” in the restaurant which indirectly describes that the food served is Halal for Muslim customers (Harlida & Alias, 2014).

On top of that, the Definition of Halal Order 2011 clearly provides that all individuals or companies can be prosecuted in this Definition of Halal Order 2011 as set out in Paragraph 8 (a). Meanwhile, the punishment that can be imposed on a company that commits an offense under Paragraph 4 of the Definition of Halal Order 2011 is heavier, namely a fine not exceeding RM 5, 000, 000. 00 and for a second or subsequent offense fine not exceeding RM 10, 000, 000. 00. In contrast, the punishment for individuals is a fine not exceeding RM1, 000, 000. 00 and can be imprisoned not exceeding 3 years or both. For a second or subsequent offense a fine not exceeding RM 5, 000,000. 00 and the offender is liable to imprisonment not exceeding 5 years or both.

3.     Animals Act 1953 (Revised 2006)

The Animals Act 1953 (Revised 2006) empowers the Ministry of Health Malaysia (KKM) and the Department of Veterinary Services (JPV) under the Ministry of Agriculture and Agro-based Industry regarding animal husbandry and disease control, especially for the Halal certificate application process for imported meat. This Act should be read in conjunction with the Abattoir (Privatization) Act 1993 and its regulations such as the Animals Regulations 1962 and the Animals (Importation) Order 1962. It is a condition under this Act that slaughterhouses abroad need to get recognition to import meat into Malaysia and KKM is the body playing the role of verifying the safety of foreign slaughterhouses that have applied for the recognition of Halal certification abroad. Before all meat is imported into Malaysia and recognized as Halal, three officials from Malaysia will visit the slaughterhouse which is an officer from JPV who will inspect the conditions of the livestock, an officer from the KKM who will inspect the safety of the livestock’s feed and an officer from JAKIM who will ensure the slaughtering process of the animal is in compliance with Syariah law.

This Act has a weakness from the aspect of parties liable in law for the issue of breaches occurring pursuant to this Act. Referring to section 14 of this Act and Rule 17 of the Animals (Slaughter Control) Regulations 2009, it is stated that only the individuals involved can be prosecuted and if committed by the company then the directors or management of the company cannot be prosecuted under this act as clearly there is not a single term in this Regulation offense can be imposed on the company thus making it difficult the prosecution to conduct any legal prosecution whenever it is done by the company.

Therefore, to date, no company has been charged with this offense according to a report by the JPV under this Act due to the weakness of the current provisions in bringing the companies involved as reported by the Veterinary Enforcement Division, (2017). In fact, the punishment provided is also low and does not give fear to the perpetrators of Halal crimes.

4.     Syariah Criminal Act/Enactment of the States

According to Rosmawati Che Mohd Zaina,et al, (2014) the current legal provisions in the Syariah Criminal Act/Enactment of the States is quite limited in its usage and is only applicable to Muslims and has a meagre punishment and does not serve as a lesson to perpetrators of ‘food crime’. For example, section 42 [Abuses of Halal sign] of the Syariah Criminal Offences (Federal Territories) Act 1997 and section 38 [Abuse of Halal sign] of the Syariah Criminal Offences (Selangor) Enactment 1995 sets out punishment if convicted, a fine not exceeding RM5,000.00 or imprisonment for a term not exceeding three years or both. Compare this to the TDA 2011 which prescribes a punishment of fine not more than RM 5,000,000.00 to RM 10,000,000.00. In addition, Syariah courts only have jurisdiction over people who profess Islam. So, of course this provision does not apply to non-Muslims and companies owned by non-Muslims as well.

However, this provision is also clearly weak in terms of enforcement issues when this provision can only sue individuals and not the company as it is known that the issue of misuse of Halal logo is not usually done by individuals but many are done by companies making this provision incomplete and weak in its implementation compared to reality or current circumstances. On top of that, Rosmawati Che Mohd Zaina, et al, (2014) the issue of preparation of investigation papers by religious investigating officers is also very weak as they do not get specific exposure plus the fact that the cases regarding the Halal logo are not popular in the Syariah Court due to the issue of the number of sentences and the breadth of jurisdiction.

5.       Consumer Protection Act 1999

The law gives certain protections or powers for consumers to enforce their rights through the Tribunal for Consumer Claims as provided in the Consumer Protection Act 1999 (CPA 1999). Referring to section 8 and 10 CPA 1999, it provides that any act which causes the consumer to be misled by fraud or misrepresentation of the Halal label on any product is an offense under the CPA 1999 with the offender if convicted, may be liable to a fine not exceeding RM 25, 000.00 for the first offense and RM50, 000.00 for the second offense even though according to Zulkifli, (2007) CPA 1999 does not specifically touch on the issue of the logo or Halal labeling, it’s purpose is still to protect consumers who feel wronged over the deception committed by the perpetrators.

The breadth of the CPA 1999 in terms of prosecution issues is not limited to individuals only but even companies can be prosecuted under it as provided under subsection 25(1)(b). However, one weakness of this Act is that the Tribunal can only act when there is a complaint from the consumer only by filing form 1 while if no complaint is made then no prosecution will be done as usually the report will only be done by the victim at the Police Station and not to the Tribunal for Consumer Claims. Amendments need to be made in terms of the breadth of the appointment of Controllers or Deputy Controllers of the Consumer Tribunal from among the police to facilitate consumer affairs as provided in subsection 7 (1) which empowers the Minister to appoint controllers and deputy controllers from any government servant.

DISCUSSION & RESEARCH FINDINGS

In line with advancements in technology, the control system for Halal in Malaysia must be improved by JAKIM and KPDNHEP, where both JAKIM and KPDNHEP need to utilise a system that can track the journey of particular foodstuff especially meats through “Special Applications”. This foodstuff would ideally be first registered on these “Special Applications” through the Radio Frequency Identification (RFID) system, where this technology is able to help track the country of origin of imported meat and its movement before reaching Malaysian consumers. According to Anuar & Muhammad Afiq, (2021) blockchain technology should also be utilised. The details of every Halal product would be verifiable through a Halal database. Therefore, product information along the food chain starting from the authenticity of reputable bodies, raw material suppliers, manufacturers, wholesalers, logistics and retailers will be known. Consumers would be able to check the Halal status of any product and provide feedback through scanning a QR code with their smartphones. Therefore, digitally coordinated Halal data storage at the global network level facilitates various parties to check Halal status and ensure it is in line with Malaysian Halal standards.

Other than being charged under the TDA 2011 and the Trade Descriptions (Definition of Halal) Order 2011, ‘food criminals’ can also be charged under other legal provisions such as the Animals Act 1953 (Revised 2006), the Syariah Criminal Act/Enactment of the States and the CPA 1999. However, amendments need to be done to rectify a few restrictions to ensure that severe punishment is imposed on individuals and companies who have committed crimes in Halal issues in Malaysia.

The weakness of the Animals Act 1953 (Revised 2006) can be referred to in the Veterinary Enforcement Division Report, (2017) where they can only issue fines to individuals only and do not have the power to impose fines on  companies based on the jurisdiction granted by law pursuant to section 14 of the Animals Act 1953 (Revised 2006) and Rule 17 of the Animals (Slaughter Control) Regulations 2009 although in actuality offenses involving the issue of illegal slaughter of animals are committed by large companies and these companies are doing business as well as distributing to consumers in Malaysia meat that is not slaughtered according to Islamic Law.

The issue of corporate liability must also be included in the new amendment to ensure that all individuals involved in the company can be punished under the Animals Act 1953 (Revised 2006). This is compared to the current stance of the law which only allows individuals to be prosecuted which would be an injustice if during the arrest only company employees were present while all company management and above are spared punishment even though the company’s operations were managed by them, and legal liability was on their shoulders entirely and not to company employees.

On top of this, there is a need for an amendment to include the company as one of the parties that can be prosecuted as well as the management and the rest of the company will not be spared from criminal liability committed by any individual in the company. There should also be an amendment to the fine and jail sentences that can be imposed such as that under the Animal Act 1953 (Revised 2006) which currently only prescribe a RM 5,000.00 fine and jail not more than two (2) years as contained under section 5(1) of the Animal Act 1953 (Revised 2006). The current prescribed punishment is too light and is no longer relevant in this time and age and thus should be revamped to include more severe punishments. It should also be noted that punishments imposed on these criminals should differ according to the party committing it. Companies who are involved in such ‘food crimes’ should be imposed with much heavier sentences and punishment compared to individuals who commit the same ‘food crimes’. This is because companies are established in order to generate profits and with higher punishments imposed on them, other companies would be more careful in running the company’s operations.

Attention should also be given to the Syariah Criminal Act/Enactment of the States as they have the potential to be utilised in charging criminals involved in the Halal issue through amendments. The amendment that needs to be done here is on the party that can be charged with the offence, specifically, it must now allow charges to be pressed against companies and corporate bodies seeing as this issue of falsification of Halal meat is usually done by companies. Although the jurisdiction would be limited to Muslims only, it is contended that it would still serve as a lesson to criminals involved as they have the knowledge on what is Haram and Halal in Islam but still seek to cause hardship to the people at large.

According to Mustafa ‘Afifi Ab Halim &  Mohd Mahyeddin Mohd Salleh, (2018), the issue of corporate liability is needed as there are companies where the directors of the company are Muslims and non-Muslims but when the company is prosecuted under civil law the director of the company who is a Muslim escape any prosecution in any Court and in the presence of law in the Syariah Court and with the extension of the interpretation of the individual that can be sued then no individual in the company can escape in terms of legal liability in the company.

Amendments must also be made regarding police reports on Halal falsification issues are made, the report can be in line with the police report which can then be used by religious enforcement officers to prepare investigation papers for the purpose of prosecution in the Syariah Court to facilitate the legal administration system. Meanwhile according to Rosmawati Che Mohd Zaina et al, (2014) who states that investigating officers are not skilled in handling such cases in Syariah Courts. Therefore, these investigating officers need training from KPDNHEP by appointing investigating officers in the enforcement division of these states as Assistant Trade Description Officers based on the powers given by law under section 3 (1) TDA 2011 as has been done by JAKIM.

While the amendment that can be made to the Consumer Protection Act 1999 is only by amending the way reports or claims are made according to the current system by appointing any police officer to be the Controller or Deputy Controller of the Consumer Tribunal based on the power of the Minister provided in subsection 7 (1) The Consumer Protection Act 1999 to facilitate public administration matters.

The Trade Descriptions Act 2011, the Trade Descriptions (Definition of Halal) Order 2011 and the Consumer Protection Act 1999 have already provided for a company as an entity responsible for crimes committed by any individual in the company as well as all management and above can be prosecuted for offenses committed while The Animals Act 1953 (Revised 2006) and the Syariah Criminal Act/Enactment of the States do not provide for the liability to be borne by the company and only focus on individuals who commit offenses and are ineffective. Only with the amendment of the provisions of the law that is to include the company can the company take liability for crimes committed by individuals in the company.

CONCLUSION

Both JAKIM and KPDNHEP need to utilise a system that can track the journey of particular foodstuff especially meats through “Special Applications”. These foodstuff would ideally be first registered on these “Special Applications” through the Radio Frequency Identification (RFID) system, where this technology is able to help track the country of origin of imported meat and its movement before reaching Malaysian consumers. Amendments need to be made to the Animals Act 1953 (Revised 2006) by extending the jurisdiction of the Animals Act 1953 (Revised 2006) to the company’s management and above because the issue of the illegal slaughter of animals is done by large companies. Amendments should also be done to increase the current fine and imprisonment term limit which is a fine of around RM 5,000.00 and imprisonment not more than two (2) years as specified in section 5 (1) of the Animals Act 1953 (Revised 2006).

Syariah Criminal Act/Enactment of the States must have specific provisions to ensure the issue of corporate liability is necessary to have a company whose director is a Muslim and non-Muslim but when the company is subject to criminal action according to civil law the director of this Muslim company is exempt from any prosecution in any Court. In addition, an amendment can be made when a police report is obtained which then can be coordinated with the police report can also be used by religious enforcement officers to prepare investigation papers for prosecution in the Syariah Court and investigating officers need also be provided training from KPDNHEP. While the amendment that can be made to the Consumer Protection Act 1999 is only by amending the way reports or claims are made according to the current system by appointing any police officer to be the Controller or Deputy Controller of the Consumer Tribunal based on the power of the Minister provided in subsection 7 (1) The Consumer Protection Act 1999 to facilitate public administration matters. The Trade Descriptions Act 2011, the Trade Descriptions (Definition of Halal) Order 2011 and the Consumer Protection Act 1999 have provided the company as a legal entity responsibility for crimes committed by any individual in the company as well as the management and above which can be prosecuted for offenses committed while The Animals Act 1953 (Revised 2006) and the Syariah Criminal Act/Enactment of the States do not provide for the liability to be borne by the company and only focus on individuals who commit offenses and are thus ineffective. Only with amendments made can the company take liability for crimes committed by individuals in the company.

ACKNOWLEDGEMENT

The researcher would like to thank and appreciate the Ministry of Higher Education (Malaysia) and UKM for providing the research funding under GGPM-2021-041, UU-2021-013, and UU-2021-012.

REFERENCES