CHAPTER 3 RESEARCH CONTEXT
3.3 Legislative Approaches to Built Heritage Conservation in Malaysia
3.3.1 Federal Government
220.127.116.11 The Department of Heritage
Upgraded to department status under the Ministry of Tourism and Culture Malaysia on 1 March 2006, the Department of Heritage is responsible for the preservation and conservation of national heritage as provided under the National Heritage Act 2005.
Other functions of the Department include to enforce the provisions placed under the National Heritage Act 2005; listing of national heritage into the Heritage List and National Heritage List; research and development related to heritage; documentation and publication of reference materials related to heritage; to plan, implement and coordinate activities related to heritage, and to establish collaboration with local and international agencies.
a) National Heritage Act 2005 (Act 645)
Previously, there is no specific heritage legislation that takes into consideration of heritage values in determining demolition or other development approvals in Malaysia.
Enactment of the National Heritage Act 2005 (Act 645) is thus not only changed the situation but fill the gap as well. Specifically, the National Heritage Act 2005 (Act 645) received Royal Assent on 30 December 2005 and was published in the Gazette on 31 December 2005. The Act was legalized on 1 March 2006 to replace the Treasure Trove Act 1957 and Antiquities Act 1976. This is a comprehensive Act that grants the conservation and preservation of National Heritage, natural heritage, tangible and intangible cultural heritage, underwater cultural heritage, treasure trove and for related matters. Applies to all states in Peninsular Malaysia, Sabah and Sarawak, the National
Heritage Act 2005 is enforced and administered by the Commissioner of Heritage appointed by the Minister of Unity, Culture, Arts and Heritage Malaysia (KPKKW). To continue, the implementation of the act also requires consultative mechanism in the light of the separate jurisdictional powers of the Federal, State and local authorities.
Part I of the act consists of several related interpretations. The Act defines „building‟ as a building or groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the view point of view of history, art or science. Having the Act in place is certainly something to be rejoiced about especially for those who want to see the legacies in the country to be preserved and protected from being affected by the tidal wave of recent rapid urban growth. In contrast with the Antiquities Act 1976, this Act does not limit heritage to properties of hundred years and above, and there is no age specified. Vague criteria for listing of built heritage outlined in the former Antiquities Act have also been addressed by this new Act. A fund that relates to the enforcement of the Act which is so-called Heritage Fund is also to be formed through this Act.
Section 23 of the Act provides for the establishment of a National Heritage Register as a national reference which can be inspected by the members of the public. Nine criteria that need to be considered in listing a site, human or object as National Heritage comprise national historical importance; good design or aesthetic characteristics;
scientific or technical innovations or achievements; social or cultural associations;
potential to educate, illustrate or provide further scientific investigation into Malaysian cultural heritage; importance in exhibiting a richness, diversity or unusual integration of features; rarity or uniqueness of the natural heritage, tangible or intangible cultural heritage or underwater cultural heritage; representative nature of a site or object and any other matter which is relevant to the determination of cultural heritage significance [Subsection 67(2)]. Notwithstanding the fact, detailed provisions on criteria of listing an
object as of having cultural heritage significance is still absent in the Act compared to those listed as National Heritage (Nurulhuda & Nuraisyah, 2013).
Despite conceived as a very important milestone for the country, there are still potential weaknesses in the enforcement of the Act. In order for the Act to be fully effective, full cooperation from both the state and local authorities is essentially required (Malaysian Institute of Planners, 2006). Insufficient numbers of suitably skilled staff and officers further exacerbate the problem (Nurulhuda & Nuraisyah, 2013). The drawback as posit by Idrus et al. (2010) is that many of the heritage buildings still succumbed to the serious defects as the issues of maintenance and management of the buildings are poorly addressed by the Act. Noor Amila et al. (2010) on the other hand argued the limited power empowered by the Act to the National Heritage Department as conservation of buildings falls subtly under the jurisdiction of local authorities. Section 32 states that the local planning authority should be notified by the Commissioner pertaining to the area of designated heritage site in the preparation of any development plan under the Town and Country Planning Act 1976 in Peninsular Malaysia and the relevant State laws in Sabah and Sarawak.
Other loopholes in the National Heritage Act 2005 as highlighted by Nurulhuda &
Nuraisyah (2013) include absence of detailed provisions on the obligatory duty of the public to safeguard cultural heritage, the protection to the listed items in the Register, the qualification of the Members of the National Heritage Council, the Commissioner, the National Heritage Department and other stakeholders involve in conservation works, and the criteria of archaeological impact assessment in development projects.
Commissioner of Heritage
The officer appointed to be the Commissioner shall hold office for a period of not more than three years and shall be eligible for reappointment. Among the functions of the Commissioner as outlined in Section 6 of the National Heritage Act include:
to determine the designation of sites, registration of objects and underwater cultural heritage;
to establish and maintain the Register and to determine and specify the categories of heritage to be listed in the Register;
to supervise and oversee the conservation, preservation, restoration, maintenance, promotion, exhibition and accessibility of heritage;
to promote and facilitate any research relating to heritage;
to maintain documents relating to any excavation, exploration, finding or search for heritage;
to establish and maintain liaison and co-operation with the State Authority in respect of conservation and preservation of heritage matters;
to advise and co-ordinate with the local planning authority, the Council and other bodies and entities at all levels for the purpose of safeguarding, promoting and dealing with any heritage; and
to promote and regulate the best standards and practices are applied in the conservation and preservation of heritage.
The National Heritage Council
Part IV of the National Heritage Act touches on matter relating to the establishment of the National Heritage Council. The main functions of the Council is to advice the Minister and the Commissioner on all matters relating to heritage and due to administration and enforcement of laws relating to heritage, and any matter referred to it
by the Minister or the Commissioner. However, the Minister and the Commissioner shall not be bound to act upon the advice of the Council.
National Heritage Register
National Heritage Register contains the lists of any heritage site, heritage object, underwater cultural heritage or any living person declared as a National Heritage. Apart from establish and maintains the Register, the Commissioner should also make the Register available for public inspection subject to conditions as the Commissioner thinks fit. This considerably implies the importance of public participation in the field of heritage conservation.
b) Town and Country Planning Act 1976 (Act 172)
Town and Country Planning Act 1976 (Act 172) is enacted pursuant to Clause (4) of Article 76 of the Federal Constitution for the purpose of ensuring uniformity of laws and policies and regulations for proper planning of the urban and rural areas in the states of Peninsular Malaysia. Generally speaking, the Town and Country Planning Act 1976 closely relate with the built heritage by means of development plans and development control. Subsection 16B (1) states that a State Director or local planning authority, on his or its own initiative or as directed by the State Planning Committee, may submit to the Committee a proposal for the designation of a special area for special and detailed treatment by development, redevelopment, improvement, conservation or management practice, of the whole or part of such special area, and the nature of the treatment proposed. Here, the plan for a special area shall be prepared in the same manner as the preparation of a local plan and to be incorporated with detailed guidance for its implementation and management.
The Act was amended four times over the years from 1993 to 2007. The second amendment of the Act in year 1995 denotes direct incorporation of historic buildings
into the Town and Country Planning Act. Specifically, where the development is in respect of a building with special architecture or historical interest, the applicant is to provide particulars to identify the building including its use and condition, and its special character, appearance, make and feature and measures for its protection, preservation and enhancement [Subsection 21B (1)(b)]. In dealing with development that involves the erection of a new building, or the re-erection or extension of a building or part thereof, the local planning authority shall impose conditions to ensure its compatibility with the architecture, character or appearance depicted in the buildings located in the surrounding area, which the local planning authority intends to project, preserve or enhance [Subsection 22 (5)(i)].
Likewise, the local planning authority shall also impose appropriate conditions when dealing with development that involves any addition or alteration to an existing building with special architecture or historical interest in order to retain the façade and other external character of the building [Subsection 22 (5)(j)]. Last of all, rules made by the National Physical Planning Council under subsection 58 (2)(f) may also provide for the protection of ancient monuments and lands and buildings of historic or architectural interest.
c) Local Government Act 1976 (Act 171)
Local Government Act 1976 is an Act that governs the powers and responsibilities of local authorities and shall only apply to Peninsular Malaysia. Part XII, Subsection 101 (c)(iv) empowers the local authority to “maintain or contribute to the maintenance of historical buildings or sites and acquire any land with or without buildings…for the purpose of or in connection with the maintenance of historical buildings or sites”
(Government of Malaysia, 1976b). Subsection 102 (f) further enables the local authority to provide for the establishment, regulation and management of any historical building
or site. Part XV, Section 134 grants exemptions from any rate imposed to the State Authority when buildings or part thereof exclusively used as public places for charitable purposes, or for the purposes of science, literature or the fine arts as opposed to any pecuniary profit. The provision of the Act is more or less similar to the Town and Country Planning Act 1976, but the former implementation is aimed more at the local level.
d) Street, Drainage and Building Act 1974 (Act 133)
Efforts to preserve heritage buildings in Malaysia are supported by several acts and legislations, one of which is the Street, Drainage and Building Act 1974 (Act133). To date, any erection of buildings is loosely bonded by this Act as well as the Town and Country Planning Act 1976 (Badaruddin, 2005). Part VII of the Act empowers the state authority to make by-laws for or in respect of every purpose which is deemed necessary for carrying out the provisions of the Act. In regards to the preservation of buildings, the State Authority has the right to make by laws in:
The construction, paving, width and level of arcades and footways
The construction, alteration and demolition of buildings and the methods and materials to be used in connection therewith
The minimum timber or other building material content in any building