By Mufti Syed Fazal ur Raheem Shah, Religious Advisor IFANCA Pakistan
Can a Halaal certification body be owned by a non-Muslim?
Halaal and Haraam are two basic concepts of Islam. A Muslim leads his life in the domain of Halaal and Haraam. He performs what is Halaal and refrains from what is Haraam. Halaal and Haraam become more important with regard to edibles. There are certain things allowed for the Muslims to eat and certain things not allowed. In order to guide the people especially in the arena of Food Industry, there are certain Halaal certification bodies comprising food scientists and Islamic Scholars.
Since the issue of Halaal and Haraam relates to the fundamental injunctions of Islam, Halaal certification bodies must be owned, managed and operated by the Muslims. Halaal and Haraam are purely Islamic concepts so there is, whatsoever not an iota of doubt that Halaal certification bodies must be managed and operated by the Muslims. A man knows his house better than the others, Muslims know their technicalities of Halaal and Haraam better than the others. So this is crystal clear as far as the management and operation is concerned. But here the question arises, “Can a non-Muslim own the Halaal certification body?”
Here we discuss it in detail, first of all we will elaborate the concept of the ownership and then we will relate ownership with the Halaal certification bodies. After that we will come out with a conclusion.
The concept of ownership is one of the fundamental juristic concepts common to all systems of law, this concept began to grow when people started planting trees, cultivating lands and building their homes. They began to think in terms of ‘mine’ and ‘thine’. The idea of ownership followed the idea of possession.
Idea of Ownership According to Keeton
The right of ownership is a conception clearly easy to understand but difficult to define with exactitude. There are two main theories with regard to the idea of ownership. The great exponents of two views are ‘Austin’ and ‘Salmond’ as seen below.
A) According to Austin:
Ownership means a right which avails against everyone who is subject to the law conferring the right to put thing to user of indefinite nature.
There are three attributes of ownership
Indefinite in point of user: The first attribute of the ownership is that it is indefinite in point of user because the thing owned may be used by the owner in very many ways e.g. an owner may build a house on his land or may use it for cultivation.
Unrestricted in point of disposition: The second attribute of the ownership is a right of transfer or disposition without any restriction.
Permanency: The third attribute of ownership is the permanence of the right of ownership. This right exists so long as the thing exists and extinguished with the destruction of the thing.
B) According to Salmond:
Ownership is a relation between a person and any right that is vested in him, that which a man owns is a right. Ownership in this generic sense extends to all classes of rights, whether proprietary or personal in rem or in personam.
Essentials of ownership
Indefinite in point of user: It is indefinite in point of user. The owner has a liberty to use the thing. He is under no duty not to use it but under mature legal systems, qualifications have been imposed on the user of the property.
Unrestricted in point of disposition: Ownership is unrestricted in point of disposition. An owner can effectively disposed of his property by a conveyance during his life time or by will after his death.
Right to possess: The owner has the right to possess the thing which he owns. It is immaterial whether he has actual possession of it or not.
Exhaust the thing: Owner has the right to exhaust the thing while using it, if the nature of the thing owned is such.
Right to destroy: The owner has the right to destroy or alienate the thing he owns.
Vest in person: Ownership can only vest in a person.
Kinds of ownership
- Corporeal and incorporeal: Corporeal ownership is the ownership of the material object while incorporeal ownership is the ownership of a right. Incorporeal things are those which cannot be perceived by the senses and which are intangible.
- Trust and beneficial ownership: Trust property is that which is owned by the two persons at the same time trustee and beneficiary. The relation between the two owners is such that one of them is under obligation to use his ownership for the benefit of other.
- Legal and equitable ownership: Legal ownership is that which has its origin in the rules of common law and legal owner is one who is recognized as owner by common law while equitable ownership is that which proceeds from the rules of equity.
- Vested and contingent ownership: When the title of the owner is perfect, it is called vested ownership. When the title of ownership is yet imperfect but is capable of becoming perfect on the fulfillment of some conditions, it is called contingent ownership.
- Absolute and limited ownership: An absolute owner is one in whom are vested all the rights over a thing to the exclusion of all, while if there are some limitations on the user, duration or disposal of rights of ownership, the ownership is limited ownership.
Difference between vested and contingent ownership
- As to Title:
- In Vested ownership the title of the owner is perfect.
- In contingent ownership the title of the owner is imperfect.
- As to Nature:
- In Vested ownership the ownership is absolute.
- In contingent ownership the ownership is conditional.
- As to Transferability:
- The vested ownership is transferable.
- The contingent interest is not transferable.
Difference between Absolute and Limited Ownership
As to Limitation: In absolute ownership the right of owner is unlimited while in Limited ownership the right of owner is limited with regard to use, duration or disposal of rights of ownership.
Note: In Order to gain a complete and perfect ownership, the ownership must be legal, vested and absolute in addition to corporeal.
Modes of acquisition of ownership
The following are the different modes of acquisition of ownership.
a) Absolute – Ownership is absolute when the same is acquired over previously ownerless objects. The rule is that first occupier becomes the owner.
b) Extinctive – Ownership is extinctive if the ownership of a previous person is finished on account of adverse possession by the acquirer.
c) Accessory – It is accessory if the ownership is acquired as a result of accession. If some land is added on account of a change in the course of the river, the same is acquired by the owner of the property adjoining it through the process of accession.
Ownership may consist in taking the thing from another with or without his consent, both are cases of derivative acquisition since the new owner’s title is derived from that of his predecessor.
Ownership in Islam
Religion of Islam is the religion of rights whatever the right, west is vesting now, Islam has vested it almost fourteen hundred years ago. Right of ownership is one of the most important rights available for a human being.
Islam has vested two basic rights in a person regarding ownership:
- Right of possession
- Right of disposition
Characteristics of ownership in Islam are same to that of which we elaborated above:
- It is indefinite in point of user.
- It is unrestricted in point of disposition.
- It is permanent absence of contrary.
- The owner has a right to exhaust the thing he owns.
- The owner has the right to destroy the thing he owns.
Highlights of the importance of ownership in Islam
- Self Defense: The owner can retaliate in self-defense for himself or for the thing he owns. He can take this retaliation even to the extent. Nothing is an offence which is done in the exercise of the right of self-defense.
- Punishment for theft: Islam has considered the ownership of a person the most valuable. Whoever trespasses this ownership by mean of theft, he or she shall be sentenced with amputation of hands.
- Punishment for Dacoity: Dacoity is rather serious in nature than that of the theft. So Islam has come out with bitter punishment for it. He or she shall be punished with amputation of hands or death, depending upon the nature of Dacoity.
- Punishment for robbery and extortion: These are the rigorous shapes of forcefully taking of something from someone’s legal ownership and fall under the Islamic title Hirabah. The offenders shall be punished with amputation or death depending upon the nature of the crime.
Note: These all instances show how much important is the ownership in Islam. Islam has put all these crimes under the Hadd with some conditions.
2. Sensitivity of Islam Regarding Fundamental Injunctions
Generally, Islam is very flexible religion. Still there are some arenas where it shows rigidity in order to maintain its fundamental stance. We can elaborate this rigidity by saying, sensitivity of Islam regarding the fundamental injunctions.
Here we explain it through some examples.
- Non-Muslim as a judge: Non-Muslim can be a judge of court of law. As a judge he can hear and adjudicate the matters other than the fundamental injunctions of Islam such as Nikkah, divorce, Hudood and Qisaas. These matters are the matters of the fundamental injunctions of Islam and Islam is very strict in this regard.
- Non-Muslim as a witness: Evidence is the main pillar for the administration of justice. In this regard, witness carries a lots of importance. Islam has its own conditions for testing the witness under the title of Tazkiat-ul-shuhood. Under this title Islam doesn’t allow the non-Muslim to give testimony against a Muslim. He can be a witness in favor of a Muslim but not against him.
- Marriage of a Muslim female with a non-Muslim Male: Islam has allowed a Muslim male to have been married to “Kitabiah”, a non-Muslim female (Christian or Jewish), but in adverse Islam disallows a Muslim female to have been married to non-Muslim “Kitabi” (Christian or Jewish male). The reason is that often husband has an influence upon the wife. So Islam allows the Muslim male to be married to “Kitabiah” in order to facilitate her towards Islam because she already believes in the oneness of Allah. Now this is not that difficult to give her the faith of profit-hood of Muhammad (PBUH). The case is totally different when a Muslim female marries to a non-Muslim male so Islam is strict to not allow the Muslim female to marry a non-Muslim male.
- Constitution of Pakistan: The constitution of Pakistan also reflects the sensitivity of Islam.
- Article 2 lays down that Islam shall be the state religion of Pakistan. It further gives the undertaking that there shall be no law repugnant to Islamic Injunctions.
- The constitution of Pakistan lays down that president must be Muslim.
- The constitution of Pakistan lays down that Prime Minister must be Muslim.
- It is now a custom that the chiefs of the Armed forces must also be Muslims.
As we know that Islam is very strict in its fundamental injunctions. Now we need to know, whether Halaal and Haraam are among the fundamental injunctions of Islam? The answer is loud, yes! Definitely, Halaal and Haraam are among the fundamental injunctions of Islam. So many Quranic verses are defining and describing Halaal and Haraam. From Halaal to Haraam, is the main ambit of Islam. Performing and eating Halaal and refraining from Haraam is supposed to be the whole Islam.
Now keeping all the above discourse in mind, we can very easily conclude that a non-Muslim cannot be an owner of an authority or body defining and deciding Halaal and Haraam.
3. Status of the Local Muslims
As the need of Halaal certification progresses every day, Halaal certification is now essential for food industry. Now in bulk, the food industry is Halaal certified and audited every year. For this purpose, various multinational Halaal certification bodies are offering their services. Some of the multinational bodies are serving under the ownership of non-Muslims. Now we are in a hurry to know the status of the local Muslims, offering Halaal certificates, working under the title of those multinational bodies which are owned by the non-Muslims, whether these local Muslims are owners, agents or employees?
If these local Muslims are owners of the local chapters of those multinational bodies here in Pakistan and their ownership is legal, vested and absolute in addition to corporeal then there is not an iota of doubt in this discussion, but if these local Muslims are agents or employees of those multinational bodies which are offering Halaal certificates, then there is a big question mark on the credibility of their certification because Halaal certification body must be owned, managed and operated by the Muslims.
Definition of Agent and Principal
1. An Agent is a person employed to do any act for another or to represent another in dealings with third persons. The person for whom such act is done or who is so represented is called the Principal. [Sect. 182 of contract act]
2. A Principal is a person who acts on behalf of another person is called an Agent. The person who authorizes another person to act is called a Principal.
Employee means any person employed whether directly or through any other person for wages or otherwise to do any skilled or unskilled, supervisory, clerical, manual or other work in or in connection with the affairs of an industry or establishment under a contract of service or apprenticeship whether written or oral, expressed or employed.
To conclude the discourse we can adjudicate the whole issue with following points:
- Owner has the absolute authority over the thing he owns, if the title of his ownership is perfect. In this regard his ownership must be legal, vested and absolute in addition to corporeal. His ownership is indefinite in point of user, unrestricted in point of disposition, permanent and he has the right to exhaust or even destroy the thing he owns.
- Islam is very sensitive about its fundamental injunction. Halaal and Haraam are among the fundamental injunctions. So a body deciding Halaal and Haraam must be owned by the Muslims as it is managed and operated by the Muslims.
- The local Muslims offering Halaal certification, serving under the title of multinational companies, which are owned by the non-Muslims, are not owners by any mean, so there is a big question mark on the credibility of their certification.
Written by Mufti Syed Fazal ur Raheem Shah, Religious Advisor IFANCA Pakistan, Head of Islamic Studies Department, Superior University Faisalabad Campus, Khateeb Post Graduate College Faisalabad.
He can be contacted at: email@example.com
 The province of jurisprudence by John Austin, publisher John Murray, Albemarle Street London, published in 1832, First Edition pg.439
 Salmond on jurisprudence published in 1913, publisher London: Stevens and Haynes 4th Edition Pg. 220