Keywords

Food Products, Halal Certification, Labelling, Competitiveness, Enforcement, Majelis Ulama Indonesia.

Introduction

Each country has a different kind and availability of resources with each other. The resources needed do not exist or do not meet the needs of a country, it could be owned by another country. This condition encourages trade or exchange of commodities with other countries, known as export and import activities. International trade of import export is an activity or transaction of commodity trading conducted by business actor with foreigner, foreign nation, and foreign country (Ministry of Trade of the Republic of Indonesia, 2014). Then sellers and buyers commonly called exporters and importers make payments with foreign exchange. Exports is the process of transporting goods or commodities from one country to another. Conversely, because of limited availability of supplies in a country, import activities are also needed. Import export activities also foster harmonious relations among nations (Alqudah, 2017). With this international trade, many parties are involved and both benefit, both in terms of economic benefits and benefits. Import export activities also open jobs that are of great influence to the public. Heckscher & Ohlin’s (1991) theory argues that a country trades because it has a comparative advantage; superior in technology and production factors, such as capital (equipment or machinery, natural resources, and human resources). Export preference for Indonesia has been encouraged since the New Order era (1966-1998). Since then, exports have been a concern in spurring economic growth as the industrialization strategy changed from the import substitution industry to the export promotion industry. Domestic consumers buying imported goods or overseas consumers buying domestic goods into something very common (Mulyawan, 2018; McCoy, 2015). Very sharp competition occurs in various products. In addition to the price, quality or quality of goods and compliance with the standards set by the destination country to be a determinant of the competitiveness of a product.

Export and import in addition to bringing a positive impact also brings many very complex problems, ranging from upstream to downstream, which is very interesting to be appointed into a scientific work. Here the authors want to conduct a scientific study on the legal protection of the export of processed food products made from raw beef that has been certified halal by the Indonesian Ulema Council (“Majelis Ulama Indonesia/MUI”). As the country with the largest Muslim population in the world, Indonesia is a very potential halal food market for various products of national and multinational companies. On the other hand, the growing number of Muslim population in the world, including ASEAN, has increased considerably. Halal certification and labeling is an absolute requirement for processed food products whether in the form of finished or semi-finished materials can be marketed domestically or abroad. Processed food is one of Indonesia's export commodities that experienced very significant growth. In 2013, total exports of processed food products Indonesia reached US $4.6 billion with a growth of 15.43% in the last five years. The largest export destination of processed Indonesian food is to the United States, Malaysia, Philippines, Singapore, China. In the period of January-May 2014 the value of processed food exports increased by 16.27% compared to the previous period. (Metro News, 2015). Based on this interesting phenomenon, this study aims to explore the central role of Majelis Ulama Indonesia, considered as the only institutional representation of Indonesian Muslim communities, on managing and licensing halal certification, and how it needs to improve its capability on the use of modern technology, superintendence and law enforcement.

Halal Certification and Labeling in Indonesia

According to Article 1 Number 5 of Government Regulation No. 69 of 1999 on Label and Advertisement of food, halal food is any food that does not contain elements or haram or prohibited materials consumed by Muslims. Raw materials and other auxiliaries also include foodstuffs. Moreover, definition and intent of halal certification is that halal certification issued by the Institute for Food and Drug Assessment of Cosmetics of Indonesian Ulema Council (“Lembaga Pengkajian Pangan Obat-Obatan dan Kosmetika Majelis Ulama Indonesia/LPPOM MUI”). LPPOM MUI is an institution under the MUI in which one of its tasks is to conduct inspection and review of halal. In addition to LPPOM MUI, the MUI also has other institutions, namely the MUI Fatwa Commission which establishes a fatwa based on the results of the examination of LPPOM MUI as the examining institution. LPPOM MUI is an institution under the MUI in which one of its tasks is to conduct inspection and review of halal. In addition to LPPOM MUI, the MUI also has other institutions, namely the MUI Fatwa Commission which establishes a fatwa based on the results of the examination of LPPOM MUI as the examining institution.

In this case, the LPPOM MUI auditor who examines halal products is an extension of the hands (the representative and executor of the ulama's duties) in reviewing, analyzing the critical point of the halal of a product based on science and technology. The results of this assessment and analysis were then reported to the MUI Fatwa Commission for review in a fatwa session based on syar'i's consideration. The fatwa of halal products is stated in the form of a halal certificate (written fatwa). In the process and implementation of halal certification, LPPOM MUI cooperates with the Food and Drug Supervisory Agency (Badan POM), Ministry of Religion, Ministry of Agriculture and the Ministry of Cooperatives and SMEs, Ministry of Trade, Ministry of Industry, Ministry of Marine Affairs and Fisheries, Ministry of Tourism and Creative Economy and a number of universities in Indonesia (http://halalmui.org/newMUI/mobapi/aboutmui.html).

The board determines the halalness of a product in accordance with Islamic Shari'a. Furthermore, it is stated that halal product is a product that qualifies halal according to Islamic shari’a that is: (1) does not contain pork products, and does not use alcohol as an intentionally added ingredient; (2) meat used comes from halal animals slaughtered in an Islamic way; (3) all forms of non-alcoholic beverages; (4) all storage, sale, processing, processing and transportation are not used for pigs or other unlawful goods, places. According to the explanation of Chapter 1 of the General Provisions of Article 1 Paragraph (1) of the Regulation of the Head of the Food and Drug Supervisory Agency (Badan Pengawas Obat dan Makanan/BPOM) of the Republic of Indonesia Number 11 of 2014, on the procedures for certification of good processed food production processed food processed foods and specific methods with or without additional ingredients. Based on Article 2 of the Presidential Regulation Number 80 of 2017 concerning the Drug and Food Supervisory Agency, BPOM has the task of carrying out government duties in the field of supervision of drugs and food in accordance with the provisions of the legislation. Medicines and Food as intended in paragraph (1) consist of drugs, medicinal ingredients, narcotics, psychotropic substances, precursors, addictive substances, traditional medicines, health supplements, cosmetics, and processed foods (https://www.pom.go.id/new/view/direct/job).

To demonstrate the validity of the process and composition of food products, manufacturers are required to install halal certification from MUI in their product packaging. Halal product certification is a decree issued by the MUI Board of Directors in certificate form. Certification of halal products is a requirement to list halal label. This means that before entrepreneurs get permission to include halal label on food products, they must first pocket the certificate of halal products obtained by LP-POM MUI). To obtain halal product certificate, the entrepreneur must obey the procedure specified by LP-POM MUI, fill out the form provided by enclosing:

1. Specification and certification of halal products of raw materials, additives and auxiliaries and process flowcharts.

2. Halal product certification or halal certificate from MUI regional branch (for local product) or halal product certification from Islamic institution which has been recognized by MUI (for imported product) for material derived from animal and its derivative.

3. The halal guarantee system described in the halal guidelines along with the standard procedures for their implementation.

The request is then processed and audited by the audit team to the manufacturer's location. Moreover, halal labeling is the inclusion of a written or halal statement on the product packaging to indicate that the product in question is a halal product. Halal products are food products, medicines, cosmetics and other products that contain no elements or illicit goods in the process of manufacture and are prohibited for consumption by Muslims, in the form of raw materials, auxiliary materials, other auxiliaries, including production materials processed through the process of genetic engineering and irradiation. Halal certified food products are not only indispensable in Indonesia, but also are required by other countries in the predominantly Muslim world to certify all products marketed or entered into the country to be guaranteed halal. In Indonesia, MUI is authorized to issue certification and halal label on any food or beverage products of any kind. MUI provides halal certification and labeling since 1988. Halal certification provided by MUI includes the establishment of halal standards, product inspection, fatwa determination and the issuance of halal certificates. On January 6, 1989, MUI confirmed the establishment of LP-POM. There are some aspects to be reviewed in halal labeling, including production process, main raw materials, auxiliary materials and effects.

Production process

The process of manufacture or production process of companies that have been using halal label should keep the following things. First, animals to be cleaned are animals that have died after slaughter. Second, mixed materials used in the production process are not made of goods or materials which are haram and the derivative. Third, the water used for cleaning the material should be absolute or clean and flowing water. Fourth, in the production process is neither mixed nor adjacent to unclean goods or materials.

Main raw materials

Raw materials are the main ingredients used in production process activities, whether in the form of raw materials, semi-finished materials or finished materials, while the additional material of the product is a material not used as the main ingredient added in the process of production technology.

Auxiliary materials

Auxiliaries are materials not included in the category of raw materials or additives that serve to help speed up or slow down the production process including the engineering process.

Effects

Halal food should not be separated from the purpose of Islamic law, to take maslahat or common interest and refuse “madharat” or danger. According to health, if a type of food can endanger the soul, then the food is forbidden consumed. Halal certificate is a written fatwa MUI which states the halalness of an item based on Islamic shari'a. This halal certificate is a requirement to include halal label.

Institute for Food, Drug and Cosmetics Assessment

In 1994, Aisjah Girindra who became Director of LP-POM MUI based on Decree of MUI dated December 1, 1993, No. Kep. 817/MUI/XII/1993, began issuing halal certification to food circulating in the market. Initially the certification process was carried out by the MUI itself. While permission of halal label on food packaging is given by Director General of Food and Drug Control (“Pengawan Obat-obatan dan Makanan/BPOM”) of Department of Health of the Republic of Indonesia. As a result, there is a dualism in the management of certificates and halal labels. Products that have obtained halal certificate from MUI still need to be checked again by the Director General of POM to get permission to use halal logo. Halal certificate and halal label are two different things, because halal certificate is issued by MUI, while halal label is issued by the Ministry of Health of the Republic of Indonesia after obtaining halal certificate from MUI. In other words, that the halal label cannot be issued without a halal certificate. On June 21, 1996 through a cooperation charter between the Ministry of Health, the Ministry of Religious Affairs and the Indonesian Ulema Council, it was finally agreed that the inclusion of halal labels on food products would be handled jointly between the three agencies. In the implementation of halal certificate issued by the MUI based on the audit team of the three agencies combined. Based on the halal certificate of MUI, the company can obtain permission for the inclusion of halal label from the Director General of POM, so there is no dualism in halal management.

Halal management in the legal system in Indonesia is marked by the issuance of Law No. 7 of 1996 on Food as a legal umbrella of consumer protection activities of Muslims, especially about halal. The struggle of LPPOM MUI in incorporating the articles of halalness in the Act is significant. The struggle was continued in the preparation of the Government Regulation on Food Label and Advertisement, namely Government Regulation No. 69 of 1999. Based on the cooperation agreement dated June 21, 1996, until now the halal label has been affixed in any food and beverage products in any form that will be circulated in Indonesia issued by Majelis Ulama Indonesia through LPPOM. Standardization in relation to the process of stipulating and applying the standards carried out in an orderly manner is a collaboration involving all parties.

The objective of standardization is to provide protection to health and safety to consumers, labor and society, and to realize the quality of products and/or services produced by increasing efficiency in the process of managing the quality system. Certification is a process associated with the granting of certificates, namely formal recognition of the successful implementation of quality systems by business actors based on quality system standards that have been selected.

Thus, certification is a continuation of the standardization process, which is also a form of formal recognition and evidence or assurance that a product has been processed in accordance with the standards required. to provide peace for Muslims and to be a world halal centre that provides nationally and internationally recognized information, solutions and halal standards, LPPOM MUI has a vision to become a trusted halal certification agency in Indonesia and the world (www.halalmui.org). The mission of LPPOM MUI is to: (1) create and develop standard halal inspection system; (2) conduct halal certification for halal products in circulation and consumed by community; (3) educate and awaken the public to always consume halal products; (4) provide complete and accurate information about halal products from various aspects.

Law no. 33 of 2014 on Halal Product Warranty

In Law No. 33 of 2014 on Halal Product Warranty, the Indonesian Ulema Council is granted an extraordinary authority. This can be seen in the articles regulating the determination of halal products whose halal certificates are issued under the fatwa of the Indonesian Ulema Council. As stipulated in the Guidelines and Procedures for the Stipulation of the Fatwa of the Indonesian Council of Ulama, it is clear that the Indonesian Ulema Council, which is the venue for the deliberations of ulema (Islamic scholars), officials and the Indonesian Muslim intellectuals, is the most competent institution to solve and answer the socio-religious issues in the community and has been entrusted, both from society and from government, that is commonly known as fatwa.

Fatwa comes from the Arabic al-ifta' having the meaning of provision, advice, or advice. The meaning of the fatwa is the answer or explanation of the scholars in relation to religious matters and common problems. There is also the opinion that the fatwa is essentially nothing more than an opinion and a mere thought, by individual ulema or the ulema institution, which may be followed or neglected (Komari, 2009). The determination of the fatwa is based on the Qur'an, sunnah (the Prophet saying), Islamic scholars consensus, and reasoning. Fatwa determination activities are conducted collectively by an institution called the Fatwa Commission. The nature of fatwa determination is responsive, proactive, and anticipatory. The methods used before establishing a fatwa are as follows. First, before the fatwa is to be determined first the opinion of the imams of the “madhhab” (school of thought within Islamic jurisprudence) on the matter to be filed thoroughly and the following arguments. Second, the obvious problem of law (“al-ahkam al-qath'iyyat”) should be conveyed as it is. Third, in the case of “khilafiyah” (different opinions) among madhhab, then the determination of a fatwa is based on the result of the discovery of the intersection between the opinions of the schools by the method of “al-jam'u wa al'taufiq” (incorporation of conflicting propositions). Lastly, if efforts to find common ground are unsuccessful, the determination of a fatwa is based on the result of tarjih (strengthen one of the propositions on the other) through the “muqaranah al madhhab” (comparison of schools of thought) method using the principles of “ushul fiqh muqaranah” (comparison of methodology). Moreover, in the face of problems not found in legal opinion among schools, the determination of fatwa is based on the result of “jama'I” (collective). Finally, the decision of the fatwa should always pay attention to the common good and the goal of shari’a.

In Chapter VI Guidelines and Procedures for the Stipulation of the Fatwa of the Indonesian Council of Ulama, the authority and territory of the Indonesian Ulema Council's fatwas, as follows. The Indonesian Council of Ulama is authorized to issue a fatwa on religious matters in general, especially legal issues and faith matters concerning the truth and purity of Indonesian Muslims. The Indonesian Council of Ulama is authorized to issue a fatwa on such religious matters concerning Indonesian Muslims nationally or regionally suspected to extend to other areas. On the issue of existing fatwa decisions, the Regional Council of Regional Ulama of Indonesia only has the right to implement it. If, due to certain factors, the decision of the Indonesian Ulama Council's fatwa cannot be implemented, the Regional Council of Indonesian Ulama may issue a different fatwa after consultation with the Indonesian Council of Ulama. In the absence of a decision of the Indonesian Ulema Council's fatwa, the Regional Council of MUI is authorized to issue a fatwa. Lastly, especially on the very improbable and sensitive matters, prior to the adoption of a fatwa, the Regional Council of Regional Ulama of Indonesia is expected to first consult with the Indonesian Council of Ulama.

Based on the above description of the fatwa, it can be concluded that the fatwa of the Indonesian Ulema Council should meet the following elements. First, fatwa should not be followed blindly. A fatwa expert must qualify for experts in Islamic law and the requirement of the Mujtahid is forbidden to follow unanimously the other experts. Second, fatwa should not deviate from human rights carried in Islam from the beginning, namely the right to embrace a religion and follow the interpretation of a particular group of interpreters. Third, the truth of the fatwa is relative, so it is always possible to change along with changes in space, time and tradition. Fourth, the fatwa must be preceded by adequate research and descriptions of one subject, including inviting the parties to discuss the material in question (Ghazali, 2005).

Therefore, a fatwa issued by the Indonesian Ulama Council which is the basis for the issuance of Halal Certificate by the Halal Product Security Guarantee Board can be said to be a legal product which has binding and legal certainty. Given the Indonesian Ulema Council which in fact is only a scholarly forum but by Law No. 33 of 2014 on Halal Product Guarantees are given extraordinary powers, whether legally justified State Administration. Since MUI is a collection of scholars who have religious integrity and competent scholarship, its membership consists of representatives of religious social organizations, such as Muhammadiyah, Nahdlatul Ulama, and other Islamic organizations.

Therefore, the determination of fatwa can be accounted for from the methodology aspect, its substance and norm, both to the society, Muslims and to the God. Fatwa is an important element in modern times that serves as a guide to explain to the society about Islamic law related to everyday life, such as worship and faith for the continuity of Muslims in religion (Buang, 2004). In this context Atho Mudzhar (1993) declares that the MUI along with the prescribed fatwas constitutes one of the religious institutions in Indonesia holding the authority to issuing and establishing religious fatwas as a reference place for Indonesian Muslim society. There is also a raised response that the MUI fatwa has an important meaning in Indonesian Muslim society (Mulia, 2003). Although the MUI fatwa is not legally binding, in practice it is always used as a reference of behavior by society and government on various aspects of the life of nation and state in filling the legal vacuum needed by the Muslim community and the shari'a. From the information above, the MUI fatwa is based on:

1. Requests or questions from the community which the Board of Directors deems necessary to be discussed and given the fatwa.

2. Request or question from the government, social institution/organization, or MUI itself.

3. The development and findings of religious issues arising from the change of society and the advancement of science, technology, and art (Secretariat of Majelis Ulama Indonesia, 2011) The fatwa issued by the MUI is a legal opinion with the aim of providing explanation and legal certainty to the parties concerned about the problem of Islamic law faced. Fatwas are non-binding for them of the fatwa requester.

The concept of national law is a synonymous meaning with positive law (“ius constitutum”). Positive law is always established institutions that have and or are authorized by the constitution or law to form it. As stated in Article 5 Paragraph (1) of the 1945 Constitution: The President has the right to submit a bill to the DPR. Article 20 paragraphs (1)-(4) states:

1. The People's Legislative Assembly establishing legislation.

2. Any draft legislation is discussed by the Parliament and the President for joint approval.

3. If the draft law does not come into joint agreement, the draft law should not be brought before the House of Representatives.

4. The President passes a jointly agreed bill to become law.

5. In the case of a jointly agreed bill that has not been authorized by the President within thirty days after the draft is approved, the draft law is lawful and shall be enacted (the 1945 Constitution of the Fourth Amendment, the Secretariat General of MPR RI, Jakarta, 2001, Article 5, Article 20 paragraphs 1-5).

From the articles of the 1945 Constitution it is clear that the power of legislators is done by the state organs, namely the DPR and the President. Thus, the institution granted constitutional authority is only strictly limited to the two institutions. In the perspective of the national legal system MUI fatwa is not part of positive law or ius constitutum. This means that the MUI fatwa is not part of the positive law applicable in Indonesia because it is established by an agency outside the official state institution. The establishment of national law is also based on a systematic-juridical systematic hierarchy.

The source of Indonesian legal system according to the legal hierarchy system is regulated in Article 7 paragraph (1) of Law Number 12 Year 2011 which determines the type and hierarchy of Laws and Regulations, consisting of: (1) the 1945 Constitution of the State of the Republic of Indonesia; (2) The Decree of the People's Consultative Assembly; (3) Government Act/Regulation in Lieu of Law; (4) Government Regulation; (5) Presidential Regulation; (6) Provincial Regulations; (7) Regency/City Regulations (Law Number 12 Year 2011 on the Establishment of Laws and Regulations, State Gazette of the Republic of Indonesia Year 2011 No. 82, Supplement to State Gazette of the Republic of Indonesia No. 5234, Article 7 Paragraph (1)). The position of the law in the order of legal norms, according to “stufentheorie” put forward by Hans Kelsen (2007) that the law has the tools to regulate its own formation because the legal norms one determines the way to make other higher legal norms, and so on until the series of norms is terminated by a supreme basis called “staatsfondamentalnorm”. Thus, the content and form of a higher regulation provides direction for the existing legislation below it.

Looking at the concept, of course there is disharmony or conflict of norms that occur between the national legal system with the fatwa set by the MUI. Because based on the rationalization of legal buildings built with the concept of Kelsen (2007) wants the legislators are the official institutions of the state mentioned in the form of higher hierarchical legislation and legal norms existing in the law are subject to norms higher norms.

Pattern of Harmonization of Religious Edict in National Law

The choice of concepts or arguments to harmonize the law is that the concept of legal harmonization is easier and practical to implement than the attempt to institute legal unification within a country that has several legal systems or legal sub-systems, such as the plural Indonesian legal system. The concept and meaning of harmonization according to Hannu Honka (1996) is the uniformity of rules or substantive principles (substantive law harmonization) between several systems and principles of disharmony law. While the concept of harmonization by the Ministry of Justice of the Republic of Indonesia is as a scientific activity to lead the process of harmonization of written law that refers, both on philosophical, sociological, economic and juridical (Goesniadhi, 2010).

In the theoretical perspective the purpose of harmonization of the law is to make the basic principles of different subsystems or legal systems can be made or found the intersection as a reference for the preparation of legislation in order to avoid conflicts between the elements or the parts therein. Therefore, the meaning of harmonization of the law includes adjustment of laws and regulations, government decisions, judges' decisions, legal systems and legal principles with the aim of enhancing legal unity, legal certainty, fairness and equity, utility and legal clarity, without obscuring and sacrificing legal pluralism (Firmansyah & Evendia, 2015). For example, in the context of this research is to attempt to harmonize MUI fatwa into national law with several models, namely:

1. Institutional harmonization. This means that the institution of the formation of national law recognized by its authority by the 1945 Constitution involves MUI institutionally in the discussion of material of a bill relating to religious and religious regulations.

2. Harmonization with the pattern of legal norms. This means that the MUI fatwa harmonizes with the norms of national law in the form of legislation or other regulations.

3. Harmonization in a substantive pattern in the form of values and legal principles. In the harmonization pattern of the third point of the harmonization pattern in the types of laws and regulations that are uniform, it means that the regulation is valid and binding on all Indonesian citizens, both Islam, Christianity, Hinduism, Buddhism and Confucianism.

Thus, the pattern of MUI fatwa harmonization into national law should refer to the values of philosophy, sociology, and juridical as a reflection of the effort toward harmony and conformity with laws and regulations, both unwritten and written not to deny the principle of legal pluralism. For the purpose of harmonizing fatwas, the common thing to consider is how the principles and legal principles contained in the material of the MUI fatwa are able to harmonize, synergize, and simultaneously with national law, both on institutional aspects, norms and legal substance. Conversely, the formation of national law should refer to the living law in Indonesian society as a religious society.

How important is the effort to harmonize, academically so that MUI fatwa products can serve as a bridge between Islamic law and national law. Mahfud MD (as cited in Alim, 2010) states that as far as the principle is in line with the state, Islam has set firmly and deeply about it. The principles of law taught by Islam can and have been established as legal principles in modern countries, because they are universal and in accordance with human nature. Because it is so, the principles of state and punish according to Islam, can be in line with the principles applicable and accepted by various groups and followers of other religions without coercion and exclusiveness. This means that Islamic law can adapt to the development of modern law, without forgetting the spirit and the soul of Islamic law.

Conclusion

Trade has a very important role in promoting economic development. To that end, the state, in this case the government, should protect the business actors, especially exporters associated with products that require halal certification or halal label from MUI. The role of the government here is to create regulations that provide the intended protection through trade ministers. On the other hand, the Indonesian Ulema Council, which is authorized by the government to issue a fatwa, is a community organization, not a state-owned institution. Consequently, the fatwa issued is not a state law that has sovereignty, binding, and must be obeyed by all citizens. From the results of this research some suggestions are proposed. For future research, there needs to analyze the law enforcement related to the export of processed raw materials of certified halal meat by Majelis Ulama Indonesia. It needs protection related to the export of processed raw materials of meat certified Halal by Majelis Ulama Indonesia. Lastly, to strengthen the bargaining position relating to the legal basis and legal standing of legal products issued by Majelis Ulama Indonesia, the MUI needs to be upgraded to state institutions.

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