KUALA LUMPUR, Oct 31 — Islamic agencies do not have jurisdiction to act on companies such as the burger chain Ninja Joe which was recently probed over its now-scrapped “P. Ramly” product name, lawyers have said.
Civil liberties lawyer Fahri Azzat said it was “likely” that the Selangor Islamic Religious Department (Jais) and Negri Sembilan Islamic Religious Affairs Department (Jheains) had overstepped their jurisdiction or the legal limits of their powers when they recently investigated Ninja Joe outlets.
“They have no business over a restaurant that did not apply for halal certification,” he told Malay Mail Online yesterday when contacted, agreeing that the “correct” position is for their powers to be limited to outlets with halal certification or those claiming their products to be halal or permissible for Muslims’ use or consumption.
Referring specifically to Jheains’s assertion that it has powers under trade description laws to investigate Ninja Joe over an allegedly confusing name for the latter’s pork burger, Fahri disagreed.
“I think this is incorrect. Jheains has no jurisdiction over trademark or confusion about trade names or items. More so when the entity did not apply for halal certification for those items,” he said.
In addressing questions on the limits of the powers of Jais and Jheains as bodies created under state laws, civil liberties lawyer Nizam Bashir referred to the position under the Federal Constitution, citing specifically Item 1 of its Ninth Schedule’s List II which deals with matters under state jurisdiction.
“Constitutionally speaking, Jais or JHEAINS powers do not extend beyond persons professing the religion of Islam,” Nizam told Malay Mail Online when contacted yesterday, adding that Ninja Joe is a chain of restaurants owned by a company.
“It is trite that a company cannot profess the religion of Islam. Consequently, Jais or Jheains has no power over Ninja Joe Sdn Bhd,” the civil liberties lawyer added.
But as for the Ministry of Domestic Trade, Cooperatives and Consumerism (KPDNKK), it can investigate Ninja Joe for any offences under the Trade Descriptions Act 2011 if it chooses to do so, Nizam said.
Authorised officers
Last week, a senior officer at Jheains’ halal management division had told Malay Mail Online that the Islamic body’s officers have the same enforcement powers as KPDNKK officers, as they are appointed as Assistant Controllers of Trade Descriptions to assist in enforcement duties related to halal matters.
While acknowledging that officers from Islamic bodies appointed by the KPDNKK may exercise powers within the Trade Descriptions Act, Nizam pointed out that the Ninja Joe incident involves a trade description matter and is not connected with halal concerns.
“So long as these officers are licenced...if they have been appropriately authorised under the Trade Descriptions Act, they can carry out their powers strictly under the Act.
“Here I don’t know whether it’s necessary because you have trade ministry officers clearly quite competent to investigate and prosecute, why bring in the religious department, what sort of expertise do they have to bring into the matter? It’s a trade description issue, I don’t see any halal issue about this,” he said.
Nizam said that the issue of whether there has been misrepresentation of a product’s halal status should be looked at holistically and may not necessarily include factors such as the product’s name, adding that the context where Ninja Joe is a known pork burger outlet and with its poster on “P. Ramly” burger carrying the word “pork” meant that consumers would not be misled into thinking it was halal.
Enforcement, but to what extent?
Lawyer Andrew Khoo said both Jais’s and Jheains’s jurisdiction in relation to trade description legislation would be when it comes to the usage of the “halal” certification, or — “even in the absence of any ‘halal’ certification” — to representations that goods and services can be consumed by Muslims.
Citing Peninsular Malaysia’s situation where people tend to automatically associate names with ethnicity and religion when compared to their “more diverse and accepting” counterparts in Sabah and Sarawak, Khoo said it was possible that some in the peninsular may conclude that a product is safe for consumption from an Islamic perspective merely due to a Malay-sounding trade name.
“So even though Ninja Joe did not use any halal certification or explicitly represent to the public that its products could safely be consumed by Muslims, for the reasons I have given, it could be seen as confusing by some,” he told Malay Mail Online yesterday when contacted.
While noting that the Trade Descriptions (Definition of Halal) Order 2011 does give authority to inspectors to investigate situations which can cause confusion, Khoo said it should have been clear for those who read both the burger’s name and its description of the pork ingredient in Ninja Joe’s poster.
He acknowledged that there may be some who had only read the burger’s name and reacted in a “knee-jerk” manner by associating a particular name with a particular religion, but asked what should be the standard to be imposed.
“However this is the challenge in this type of legislation or regulation — what level of protection do we afford the consumer? Do we apply a standard of consumer awareness of the most gullible person in our society?” he asked.
Khoo added that it would be an “alarming trend” if Islamic bodies are indicating that clearly non-halal products cannot use certain types of names simply due to name-association, noting that it would then result in trade descriptions or name usage being subject to subjective responses based on whether an individual’s sensitivities are affected despite clear product information available.
Ninja Joe had last week published an apology on its official Facebook page and said that it had not intended to offend, reiterating that it has taken down all posters advertising the “P. Ramly” burger and will be renaming it.
The burger chain previously told Malay Mail Online that the “P” in the “P. Ramly” burger launched on Hari Merdeka stands for pork, while the word “Ramly” was aimed at paying homage to the iconic Malaysian brand “Ramly Burger” and was unrelated to the late Malaysian artiste Tan Sri P. Ramlee.
Both Ninja Joe’s website and Facebook page describe the restaurant chain as serving non-halal food, with the latter stating that it is “best known for delicious pork burgers”.
