.jpg "A sign restricting Muslim patrons from dining-in during the Ramadan month is seen at a McDonald’s outlet in Sunway April 29, 2022. — Picture by Choo Choy May")
KUALA LUMPUR, May 1 — Generally Muslims in Malaysia would be committing an offence under state laws if they do not fast during Ramadan (see below for exceptions), but what about those who sell food to them? What kind of laws are in place?
As matters relating to Islam are governed by the respective states in Malaysia, the state laws listing out Shariah offences — which include the offence of selling food to Muslims for eating during fasting hours or Muslims eating food during fasting hours --- also differ from state to state.
This is a different system from civil laws, where crimes and the penalties under the Penal Code --- which applies to both Muslims and non-Muslims — are the same throughout Malaysia, no matter which state the offender is in.
Some state Islamic laws for example go beyond just selling food, but also covers the buying, giving or offering of food; while other states have the additional condition of being a person who has reached puberty in relation to the offence of eating during fasting hours.
These offences come under the general name of “disrespect for Ramadan” in most of the state laws in Malaysia.
Generally, for the “disrespect for Ramadan” offence, most states in Malaysia have maximum penalties of RM1,000 fine or six months’ jail for the first offence and a maximum penalty of RM2,000 fine or one-year jail for repeat offences.
The maximum penalties are relatively higher in Kelantan (RM2,000 fine or one-year jail or both for first offence; RM3,000 or two-year jail or both for repeat offences) and Pahang (RM3,000 fine or two-year jail or both for first offence; RM5,000 fine or three-year jail or both for repeat offences).
Here is a comparison of the different state laws covering Shariah criminal offences (all available publicly on the esyariah website, except for Kelantan where the latest law was not available and was only contained in a December 2020 state government gazette):
While these state Islamic laws do not mention this, you may have heard about Muslims who are exempted temporarily from fasting during Ramadan.
The Terengganu mufti department’s website for example lists those exempted from fasting during Ramadan and being able to substitute with fasting on other days as including those who are ill and unable to fast, those who are musafir or travellers, pregnant or nursing mothers such as those worried about their and their babies’ health and safety.
The Federal Territories’ mufti department’s website also carries a June 27, 2016 opinion from then Federal Territories Mufti Datuk Zulkifli Mohamad, who listed Muslims exempted from fasting as also including women who are menstruating and the elderly who are unable to fast.
The mufti’s opinion in June 2016 had also stated that it is harus or permissible for such Muslims to be exempted from fasting and that it is afdhal or best or preferable if they eat in places away from the public eye in order to protect themselves from slander and saving others from having prejudices that would cause them to sin.
Companies cannot be charged for this offence
Malay Mail also spoke to lawyers about how these laws would apply in real life and what companies which operate restaurants should know or can do. While the Muslims’ annual fasting month ends tomorrow, this could serve as a useful guide for the future.
Recently, a fast food chain employee posted a video on TikTok to shame three Muslim women who dined in during the fasting month. At the same time, some Twitter users shared their own experiences such as being turned away from dining in even when they were in the exempted category or being quizzed by outlets about whether they were buying food for themselves.
Here’s what the lawyers said, based on examples of the disrespect for Ramadan offence in the Selangor state law and the law for the federal territories:
Fahri Azzat, who is both a civil lawyer and Shariah lawyer, said the offence of disrespect for Ramadan by selling food to Muslims for immediate consumption during fasting hours only applies to Muslim individuals, and not to companies.
“It doesn’t apply to companies because Section 1(2) says this Act applies to persons professing the religion of Islam and only natural persons can do that,” he said, based on the Syariah Criminal Offences (Federal Territories) Act 1997 which is the version of state Islamic law applicable to the federal territories.
Section 1(2)(a) says that the Act shall apply only to the federal territories of Kuala Lumpur, Labuan and Putrajaya, while Section 1(2)(b) says the Act “shall apply only to persons professing the religion of Islam.”
Many of the state Islamic laws also have similar clauses to say that those laws apply only to Muslims.
Malay Mail’s checks showed that the state laws — which contain the offence of disrespect for Ramadan or similar — state that those laws only apply to “persons professing the religion of Islam” (federal territories, Johor, Kedah, Pahang, Terengganu, Penang, Perlis and Sarawak) or to “Muslims” (Selangor, Sabah and Kelantan), while the versions for Melaka, Negri Sembilan and Perak do not make such mention.
But even without express mention of this being applicable to Muslims, Item 1 in List II (State List) in the Federal Constitution’s Ninth Schedule already made clear that state laws on Islam are for persons professing the religion of Islam.
Fahri noted that the civil courts had already in cases such as the Borders bookstore chain’s Malaysia operator Berjaya Books Sdn Bhd case, the publication company ZI Publications Sdn Bhd case, the SIS Forum (Malaysia) Bhd case decided that only natural persons can profess the religion of Islam and that those are still good laws.
The Federal Court had in February this year in the SIS Forum (Malaysia) case reaffirmed a previous decision it had made, stressing that the word “profess” would mean a declaration of faith which an artificial legal person (such as a company) is incapable of doing.
The decision that was affirmed was the Federal Court’s ruling in 1998 in the case of Kesultanan Pahang v Sathask Realty Sdn Bhd, where the Federal Court said that a “corporation cannot speak Malay or any Malayan language and cannot profess Islam.” This was in comparison to natural persons or an actual human being.
Muslim employees in a company can’t be charged for the offence too
However, in a situation where a Muslim employee in a restaurant happened to have carried out the act of selling food to Muslims for consumption during fasting hours, Fahri said it is actually the company which is the one selling to the customer.
“The sale itself is transacted with the company, not the employee although he facilitates the sale. I don’t think the Muslim staff can be prosecuted for it because it is the company that transacts. It’s like the ZI Publications/Ezra Zaid situation — the offence was committed by the company, not the director,” he said.
Fahri also pointed out the difference between “offering for sale”, and “selling” where there is an exchange of goods and money between the restaurant and the customer.
“I make the distinction because it is not an offence if I am standing behind the stall and inviting people to buy. But it is an offence the moment I make a sale — receive money and give the good --- because the provision makes ‘to sell’ an offence, not offering,” he said when using the federal territories law as an example, agreeing that this would mean a restaurant or stall that is open for business during fasting hours would not automatically be considered to have committed an offence of selling food to Muslims for consumption during fasting hours.
Fahri said there would not be a breach of the state laws if there are Muslims who buy the food for those exempted from fasting such as for children, pointing out that the key point is whether the food is immediately eaten during fasting hours.
“I would say no. Because both provisions (Section 15(a) and Section 19(a) require that the purchased food, drink etc. ‘is for immediate consumption during such hours’. So if we can show it is not for immediate consumption but for someone else, then it would not be an offence.
“If they buy but do not consume then there is no offence. Like if Muslims buy their food for buka puasa — that is not an offence. They are buying it to eat after breaking fast,” he said, using the Selangor law and the federal territories law as examples.
Restaurants can ask customers, but not all within their control
Asked what should restaurants which are operated by companies and their employees do during Ramadan, Fahri said they can try their best to prevent breaches of the state laws on the disrespect for Ramadan offence — which criminalises the sale of food to Muslims for immediate consumption or the eating of food during fasting hours.
“I think they should do as Muslims are supposed to do during Ramadan — carry on their business as they ordinarily would.
“How would a company know whether a person buying from them is doing so for immediate purpose or for someone else (children, friend, non-Muslim)? That is not their business. They sell food. Their defence would be — we sell food, we do not know whether they purchased it to consume immediately or for someone else, etc, and it’s not our business to ask our customers what they do with their food,” he said.
Asked further if restaurants need to check if the Muslim eating there is a person exempted from fasting, Fahri again said no.
Asked if restaurants need to ensure that there is no breach of the state Islamic laws on the disrespect of Ramadan within their premises, Fahri replied: “Yes and no. Yes, they should prevent it but no, not all of it is within their control, or their business.”
Asked if restaurants can choose to just disallow all Muslims (including those exempted from fasting) from eating within the restaurant to prevent the offence of disrespect for Ramadan within their premises, Fahri said restaurants can do this but pointed out that this would be shifting the goalpost to “avoiding ‘disrespect’” which would be far wider than how the state laws’ provisions see the situation.
“They don’t have to do that. All a restaurant can do to perhaps discharge itself is ask whom they are selling it to, ‘Are you going to eat this yourself immediately? If you are, I cannot sell it to you. But if you are not, then I can.’ If the customer lies to the store/cashier, that’s not their problem,” he said.
Ultimately, Fahri pointed out that the correct way of looking at the state Islamic laws is to refer to the actual legal provisions — which criminalises the selling of food to Muslims for their immediate consumption or eating openly or eating in a public place, and not to expand it to the broad and general notion of “disrespect” that goes beyond how the state laws are stated.
“I want to emphasise here that the focus is not about exempted or not exempted but whether that Muslim is going to consume the food/drink immediately during Ramadan hours,” he said, pointing out that the state Islamic laws do not make any distinction on whether a Muslim is exempted from fasting but merely refers to Muslims.
Fahri said Muslims who are exempted from fasting should not be caught by the offence of disrespect for Ramadan, but pointed out that it is still “entirely possible that they can be charged notwithstanding they have a condition that exempts them.”
This is because the provisions in the state Islamic laws do not draw such a distinction between those exempted and those fasting, while there are also no provisions for defences in the Syariah Criminal Offences (Federal Territories) Act 1997 for example.
Fahri said a restaurant is not a “public place” but a “place for private business”, agreeing that Muslims exempted from fasting can “potentially” eat in restaurants without having committed the offence of disrespect for Ramadan.
But he also noted that the offence in the state laws makes a distinction between eating in a “public space” or eating “openly” by using the word “or”, explaining: “They can eat in a private place but do so openly and that is potentially an offence. If they eat in an open place, then whether they do so openly or not is not a requirement.”
Asked about situations where a Muslim exempted from fasting is unable to find alternative spaces to eat, Fahri said: “That sounds quite tragic. Then they have to run the risk of prosecution if they cannot find some private place with some semblance of privacy.”
Companies are separate legal personalities from employees
Nizam Bashir, who is also both a civil lawyer and Shariah lawyer, said the state Islamic laws on the disrespect for Ramadan offence do not apply to companies — and their employees — who sell food during the Ramadan period.
He said it would only apply to Muslim individuals who are sellers, noting: “If the seller is not a company and is an individual and commits the act prohibited in the sections, he or she may be prosecuted by the religious authorities.
“Simply put, individuals are prohibited from selling to any Muslim any food, drink or cigarette or similar thing for consumption during the hours of fasting in the month of Ramadan.
“Of course, it then begs the question as to whether the provision is applicable to individual employees working for a company. Arguably, it doesn’t apply given the separate legal personality principle that separates a company from its shareholders or its employees,” he said.
This is because it would be the company selling the food or drink or cigarette and not the employees carrying out the act of selling, with Nizam saying that the separate legal personality principle also seems to be the way that the courts dealt with this question in the Berjaya Books and ZI Publications cases.
While “person” is statutorily defined in the Interpretations Act to include “a body of persons, corporate or unincorporate”, Nizam points out that the Federal Constitution “clearly specifies that the jurisdiction of the states on Islamic law is only over persons professing the religion of Islam.”
“A company, as numerous cases have previously decided, can never profess a religion,” he said when explaining why the offence of disrespect for Ramadan cannot be used to charge a company.
No need to stop Muslims exempted from fasting from dining in
As for whether there can be prosecution if food or drinks are sold to a Muslim exempted from fasting, Nizam noted that the offence in the Selangor state law for example does not provide exceptions for such a situation.
“The General Exceptions to the Syariah Criminal Offences (Selangor) Enactment 1995 also does not provide an explicit defence in such an instance. If I am right in my view in that regard, then the section appears overboard and ought to be amended to reflect the fact that exemptions to fast are accorded to those who are ill, travelling and women who are menstruating,” he said.
For situations such as fasting Muslims buying food for Muslims exempted from fasting such as for children, Nizam noted that the state Islamic laws too did not expressly make any exceptions for this scenario, adding that “it would be harsh if an individual was prosecuted if he or she was merely buying for those exempted from fasting.”
But while saying that a superficial reading of the state Islamic laws would suggest that the disrespect for Ramadan offence may apply to Muslims exempted from fasting, Nizam said that he does not consider this to be the real purpose or the “real mischief intended to be regulated by the section and it would be interesting to see how the Shariah courts construe the section.”
Asked if there is still a need for state Islamic laws to be amended if it was not actually aimed at Muslims exempted from fasting and if it would be enough if no religious enforcement is taken against such Muslims, Nizam indicated it may not be necessary but also noted it would help make the law clear.
“An amendment is not essential if common sense prevails. At some point, nevertheless, it may be sensible that such an amendment is made merely to ensure that there is clarity in the law and that religious officers do not make a mistake as to the true mischief of what the section was intended to remedy,” he said.
Asked what restaurants should do during the Muslims’ fasting month and whether they can have policies stopping dine-in for Muslims exempted from fasting, Nizam said there was no need for restaurants to stop Muslims —- who are exempted from fasting — from eating within their premises.
“Companies and employees, in my view, are not subjected to the provision for the reasons I have set out above. Consequently, they may choose to sell to individual Muslims as they see fit as the provision is only applicable to persons professing the religion of Islam.
“Individual persons who are in the mere employ of a company, an artificial legal person, would not be subject to prosecutions given the separate legal personality principle. For that reason, there is no need to draw up policies to prohibit dining-in for Muslims exempted from fasting,” he said.
Asked whether a restaurant would be seen as a private place of business and about situations where a Muslim exempted from fasting is unable to find alternative spaces to eat, Nizam said such a person could possibly cite the defence of darurat or necessity under hukum syarak (Islamic law) if charged for the offence of consuming food “openly or in a public place.”
To my mind, a restaurant or eating place open to the general public would fall within the rubric of ‘openly or in a public place’.
“Nevertheless, keep in mind that necessity may be a defence to a Syariah criminal charge and for that reason, a person exempted from fasting may avail himself or herself of such a defence,” he said.
Confirming that there is no express provision on this defence of darurat or necessity in the state laws and that the closest may probably be those in Section 41 and Section 42 of the Selangor state Islamic law for example but that even these may be a bit of a stretch, Nizam explained this defence as: “Essentially, I had no choice but to commit a Syariah offence as otherwise, for example, my life or health (or even by extension the life of a third party) was at risk.”
The TLDR summary
Restaurants operated by companies and their Muslim employees do not have to worry about being prosecuted if they sell food to Muslims for consumption during fasting hours, but can of course do their best to check with Muslim customers if they intend to eat the food within fasting hours or if the food is meant for those exempted from fasting.- malaymail
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