Foo Teng Nyong, Tsai or Principal Wife of Capitan Chung Keng Quee died in childbirth in 1883. She was the mother of Chung Siew Yin (whose home on Light Street, Windsor, now houses Great Eastern), Capitan Chung Thye Phin and Chung Thye Cheong.
According to Penang Heritage Trust's Clement Liang, historical records showed Foo had strong influence on the career of and success achieved by her husband. One of the things she did was to secure for her husband the services of her brother's son, Foo Choo Choon, who began work in Chung's Lahat mines, later making a name for himself as the Tin King of Malaya.
To memorialise her and serve as her final resting place, Chung built for her a magnificent monument nestled o a commanding knoll just off what today is Jalan Bunga Telang, Fettes Park, with fruit, flowers and animals out of Chinese mythology -- scenes from Journey to the West, like "Monkey Snatches Peach" and marvelous beasts like the divine Dragon and the mystical Qilin said said to present itself at the birth or death of a sage or illustrious leader -- meticulously carved and sculpted into its surfaces.
Here she was entombed the year after her death when the structure was completed. And here she rested, for a hundred and thirty-eight years, resisting the advances of time and war. No maintenance was required. Despite this, the monument was in no state of dilapidation and in no danger of falling apart, being made of granite as it was.
February saw the publication in one local or regional Chinese newspaper of a notice calling for descendants to come forward to retrieve the remains of Foo.
Chow did not reply. Zairil and Ong did not reply but when contacted by The Star said they had not been notified of any kind of development in their constituencies. Yeoh did not reply. A reply was received from Penang Heritage Commissioner Rosli with whom correspondence was then entered into.
In his reply dated 2nd March, Rosli, who said they wiould loot into the matter soon, noted that they had visited the site about three months prior and done "preliminary surveys and documentation." He also mentioned that he had "also given our recommendations to Pulau Pinang City Council (MBPP) regarding the possible protection of the Graveyard."
On 23rd March 2022 Rosli's office wrote to ask for more information, which was given and the "exhaustive information" was ascknowledged, with Rosli saying they would "provide comprehensive information to the State and Penang City Council (MBPP)."
Speaking to The Malay Mail (published 2nd March) Rosli "confirmed that the landowner had written in with a proposal to build high-rise apartments on the land and had inquired if they could exhume and demolish Foo Teng Nyong’s grave." “I have visited the site and I find that it has very unique carvings and beautiful designs which are rarely found,” he said. He said the site may be of historical significance but it is not gazetted as a heritage monument at the moment. However, he added that due to the grave’s unique design and carvings, it could be proposed to be listed as a heritage monument. “For a site to be listed and gazetted, it needs to be decided by the state heritage council chaired by the Penang Chief Minister Chow Kon Yeow,” he said. As for the proposed development by the landowner, Rosli said he has already recommended the Penang Island City Council (MBPP) offer an incentive to the developer to preserve the grave. “I recommended to the city council to ask the developer to turn the grave site into a green area and as a setback for their development project so that the grave is protected,” he said. He said all developments will need a setback and green area so the grave, which is located next to the road, can be the green area and setback for the project. “This way, the developer might be happy to protect it as they won’t need to designate another green area,” he said. See also
https://www.malaymail.com/news/malaysia/2022/03/02/appeals-to-penang-state-govt-to-protect-138-year-old-grave-of-kapitan-cina/2045002
On 3rd March The Star refuted assertions that the monument was at risk of being destroyed. See also
http://web.archive.org/web/20220303082842/https://www.thestar.com.my/news/true-or-not/2022/03/03/quickcheck-is-the-grave-of-a-powerful-penang-woman-from-the-1800s-currently-at-risk-of-exhumation
The Malay mail (5th March) quoted Rosli saying “The city council agreed with me so we will be recommending that the tomb be preserved but before this, we will need to document it." He said said the heritage council will be going to the site to document the details of the tomb once the site, which is now overgrown with vegetation, is cleared for better access. Penang Heritage Trust’s Clement Liang said the tomb is a unique grand Cantonese-style grave. “Unseen in Penang, it is an architectural masterpiece which should be given due attention for conservation,” he said. He hoped the authorities have learned their lesson from previous cases of mass destruction of historical family graveyards. He referred to the destruction of the Kapitan Cina Koh Lay Huan’s family graves at Batu Lancang including those of prominent historical personalities like Koh Seang Tatt and Koh Lip Teng. See also
https://www.malaymail.com/news/malaysia/2022/03/05/penang-heritage-council-plans-to-document-138-year-old-tomb-with-recommenda/2045555
On 15th April Rosli wrote that he had a meeting with the Chief Minister and Executive Councillor for Tourism the Tuesday past and that the Penang Island City Council (MBPP) would be calling for a meeting with the land owner and their lawyer. In the meantime the Office of the Penang Heritage Commissioner was "preparing a report for the protection of the 3 grave's site related to the Kapitan on Mount Erskine."
In response to an enquiry about the status of steps taken to protect the monument, Rosli wrote on 23rd May, "Almost no progress at all. Because this proposal involves land matter, and also private property, and potential future development, the decision will take quite some time. Only until the issue rises again, when the developer intends to develop, Authorities will get back to the issue. At this moment, the developer is holding the project, and considering our recommendation to retain the grave (Madam's grave) in situ as part of the green reserve of the project. I think they will give a fresh proposal."
However, despite the warnings and appeals, the meetings, proposals and reassurances, what had taken up to a year to put together was reduced to rubble in less than a day on Sunday the 28th of August. The act of destruction was first brought to notice by China Press who had received a tip off. See also
https://penang.chinapress.com.my/20220829/138%e5%b9%b4%e5%8e%86%e5%8f%b2%e5%8f%a4%e5%a2%93-%e6%97%a0%e9%a2%84%e8%ad%a6%e4%b8%8b%e8%a2%ab%e6%8b%86%e9%99%a4/
In a statement referred to by The Star on Monday 29th August, State Tourism and Creative Economy Committee chairman Yeoh Soon Hin said "it was unacceptable that the piece of historical monument has been destroyed without approval and responsible parties will be investigated."
It was subsequently discovered that part of the remains of Foo Teng Nyong had been dumped together with a lorry load of of some of the broken pieces of the monument at a landfill in Jelutong while other parts of the deceased's remains were chucked into an unmarked pauper's grave at Batu Gantong.
On 28th September the Malay Mail reported he would be salvaging what it could of "a priceless 138-year-old tomb." He told the press he hoped to display the "pieces of the intricately carved stonemasonry from Foo Teng Nyong’s tomb" at the state museum on Macalister Road. He claimed at that time that “It would be difficult to reconstruct the tomb to its original condition as our photographic documentation was not clear enough,” and that the state had no intention of gazetting Foo's tomb as a heritage site. See also
https://www.malaymail.com/news/malaysia/2022/09/28/penang-to-retrieve-demolished-138-year-old-tomb-of-kapitan-cinas-wife-for-display-at-state-museum/30540
Rosli said that Penang had yet to establish a state heritage council (despite having referred to this earlier, see above) which was needed to provide final approval for the gazetting of sites (see also
https://www.malaymail.com/news/malaysia/2022/09/28/commissioner-rues-penangs-delay-in-setting-up-state-heritage-council-six-years-on/30556)
however this is inconsistent with the State of Penang Heritage Enactment 2011 (SOPHE 2011) which clearly spells out the role of the council as an advisory body, with executive powers vested in the Penang Heritage Commissioner, who only requires the approval of the State Authority, which in this case is the Chief Minister, Chow Kon Yeow.
On 30th September The Star reported something very different. Quoting Rosli, the Star published, "We have detailed images of the grave when we went there about three months ago. Reconstruction will still be possible, although there is no intention for it at the time being." See also
https://www.thestar.com.my/news/nation/2022/09/30/destroyed-tombstone-of-138-year-old-grave-to-be-kept-in-museum
He was reported two days earlier saying “It would be difficult to reconstruct the tomb to its original condition as our photographic documentation was not clear enough.”
On 7th October the Malay Mail reported the Penang government's approval for the setting up of a state heritage council, although, as mentioned earlier, under the enactment, this is, strictly speaking, unnecessary for the designation of heritage sites by the Penang Heritage Commissioner with the approval of the State Authority i.e. Chief Minister Chow Kon Yeow. See also
https://www.malaymail.com/news/malaysia/2022/10/07/penang-finally-approves-setting-up-state-heritage-councilafter-six-year-delay/32234
UNDER THE STATE OF PENANG HERITAGE ENACTMENT 2011, WHO HAS THE POWER TO DESIGNATE HERITATE SITES?
While the Penang Heritage Commissioner insists the Heritage Council is an approving body, in the articles set out in SOPHE 2011 and the language used, it is clear to see that the Penang Heritage Council's role is mostly, if not fully, an advisory role.
PENANG HERITAGE COUNCIL IN SOPHE 2011
Part II of the SOPHE 2011 deals with the creation, role and functions, and the human resourcing of the council.
Article 4 of the SOPHE 2011, which falls under Part II of the enactment, reads,
The Penang Heritage Council is established.
This simply means, the council had been established from the moment the enactment took force, whether or not there were warm bodies appointed to fill the seats on that council.
Article 5 concerns the functions of the council and reads,
The functions of the Council shall be to—
(a) advise the State Authority on any matters relating to the preservation, conservation and protection of cultural heritage or natural heritage, and matters relating to implementation of this Enactment;
(b) propose the formulation of policies on cultural heritage or natural heritage to the State Authority;
(c) consult and coordinate with the Commissioner of Heritage on matters relating to preservation, conservation and protection of cultural heritage or natural heritage;
(d) monitor and coordinate with the local planning authority in relation to the development plan for heritage site;
(e) monitor and propose any improvement to the guidelines and conservation management plant for the State Heritage;
(f) carry out study or research on cultural heritage or natural heritage; and
(g) perform any other functions which may be directed to it by the State Authority for the proper and effective implementation of this Enactment for the purpose of management, preservation and conservation of cultural heritage or natural heritage.
The use of words like shall, must, will, or is to, all denote the mandatory as opposed to the discretionary.
Advice, proposals, consultations, are all of an advisory rather than an executive or decision-making nature. The council has no power to do anything but advise, propose, provide consultancy, monitor, or coordinate. Even the requirement to conduct studies or research is more in the nature of a staff function as opposed to a line function.
Article 6 concerns membership of the council, and reads,
The Council shall consist of the following members:
(a) a Chairman who is the Chief Minister;
(b) three members of the State Executive Council;
(c) the State Secretary or his representative;
(d) the State Financial Officer or his representative;
(e) the Director of Town and Country Planning or his representative;
(f) the President of Penang Island Municipal Council or his representative;
(g) the President of Seberang Perai Municipal Council or his representative;
(h) the State Heritage Commissioner;
(i) the Curator of Penang State Museum and Art Gallery or his representative;
(j) the General Manager of Georgetown World Heritage
Incorporated or his representative; and
(k) not less than five members appointed by the State Authority.
So, if (k) above is in addition to (a) to (j), most seats on the council have already been automatically filled, and only five more need be appointed.
But this does not concern us, the nature of the council being one of an advisor, proposer, consultant, which, as can be seen from Article 5, do not indicate anything primary or significant and certainly nothing of an executive or decision-making nature.
Not so, however, the role and functions of the Penang Heritage Commissioner, under SOPH 2011.
Article 7 concerns the appointment of the Secretary to the council and is of no importance here. Nor are Article 8 (Terms of Office), Article 9 (Revocation of appointment and resignation), Article 10 (Vacation of office), Article 11 (Allowance), Article 12 (Meetings), Article 12 (Council may invite others to meetings), or Article 14 (Establishment of committee).
PENANG HERITAGE COMMISSIONER IN SOPH 2011
Article 15 concerns the appointment of the Penang Heritage Commissioner and his purpose under the enactment. The article reads,
The State Authority may appoint a public officer to be the State Heritage Commissioner for the proper carrying out of the provisions of this Enactment.
We do not see similar language used in the construction of the terms describing the role and function of the Penang Heritage Council, as those used above in relation to the creation of the Penang Heritage Commissioner.
It is important here to point out that, according to the words used, the appointment of the Penang Heritage Conditioner is not a mandatory requirement, but is a discretionary one.
The words of the enactment read, The State authority may appoint, and not the State Authority shall appoint or will appoint, or is to appoint. This simply means, the functions, roles, and all the powers and authority that go with them, go back to and can be exercised by the State Authority in the absence of a Penang Heritage Commissioner, who is tasked with "the proper carrying out of the provisions of this Enactment."
Article 16 reinforces or drives home this point,
The functions of the Commissioner shall be to—
(a) ensure that this Enactment is administered, enforced, given effect to, carried out and complied with;
(b) declare any cultural heritage and natural heritage as State Heritage;
(c) coordinate with the Council in relation to the administration, preservation and conservation of heritage;
(d) advise the local planning authority, any body or other agencies in relation to the administration, preservation and conservation of heritage;
(e) establish and maintain a State Heritage Register;
(f) promote and facilitate any research relating to heritage;
(g) supervise and monitor the process of preservation and conservation of the State Heritage;
(h) organize programmes, exhibition and promotion on tourism in relation to preservation and conservation of State Heritage;
(i) formulate and issue policies, guidelines or directives in relation to management, preservation and conservation of heritage and, shall be in accordance with the policies and directions of the Commissioner of Heritage; and
(j) perform any other functions under this Enactment as directed by the State Authority from time to time.
With the exception of things like coordination (c), advice (d), the activities of the Penang Heritage Commissioner are of an executive nature and not an advisory nature, in line with the primary function his role was created for, that is to say,
(a) ensure that this Enactment is administered, enforced, given effect to, carried out and complied with;
(b) declare any cultural heritage and natural heritage as State Heritage;
While a function of the Penang Heritage Council is to
"propose the formulation of policies on cultural heritage or natural heritage to the State Authority" (Art. 5 b),
the role of the Penang Heritage Commissioner is to
"formulate and issue policies, guidelines or directives in relation to management, preservation and conservation of heritage and, shall be in accordance with the policies and directions of the Commissioner of Heritage."
The words of the Art. 5 b, contrasted with those in 16 i, clearly show the difference between the advisory nature of the Penang Heritage Council and the Penang Heritage Commissioner.
Article 17 drives this home even further than Article 16,
The Commissioner shall have all such powers as may be necessary for, or in connection with, or incidental to, the performance of his functions under this Enactment.
Article 18 concerns the designation of a heritage site, and in this the Penang Heritage Commissioner cannot act alone,
(1) The Commissioner may with the approval of the State Authority, designate any site which has natural heritage or tangible cultural heritage value to be a heritage site.
(2) For the purpose of subsection (1), the Commissioner may consult with the Council before obtaining the approval of the State Authority.
Simply put, it is at the discretion of the Penang Heritage Commissioner to designate a heritage site, but if he chooses to do so, he must do so first obtaining approval.
Whose approval? Not the Heritage Councils approval. Only the State Authority's approval is necessary for the Heritage Commissioner to exercise his discretionary powers to designate a heritage site.
How does he decide what is worth designating heritage and what is not?
He of course can use his own eyes and skills and knowledge. In the case of the 138 year old monument, with its highly embellished surfaces, he might not need to consult with anyone -- it is surely clear to anyone who sees it that the monument is not a fake or cheap knock-off, but the real deal.
Should he need other expert help, he might refer to Jabatan Warisan Negara (National Heritage Department), Jabatan Muzium (Museums Department), or various other bodies made up of people with specialised knowledge and skills, like Badan Warisan Malaysia, Penang Heritage Trust and so on.
And yes, he might also choose consult with the Penang Heritage Council but why he would choose to do so is a puzzle since the only two possible real experts there are
(i) the Curator of Penang State Museum and Art Gallery or his representative;
(j) the General Manager of Georgetown World Heritage
None of the others have been hired by the state for their intimate knowledge of history and their expertise in evaluating objects for their artistic and cultural heritage value.
That being the case, and the consultation with the Penang Heritage Council being an option placed at his disposal and not a mandatory requirement, it is only the approval of the State Authority that would be a determining factor in whether or not the Penang Heritage Commissioner eventually designates a heritage site or object based on its antiquity (defined as at least 50 years under the Heritage Act 2005), artistic or other value(s).
So why didn't he? Why didn't the Penang Heritage Commissioner do his job as defined under the articles of the State of Penang Heritage Enactment 2011?
Unless one is a seer or fortune teller, there is no real way of knowing. Two possibilities, however, come to mind.
It might be that the terms in his employment letter are different from the articles of the enactment. If this is the case, everyone and their uncle need to be reminded that (a) between an employment contract and State Law, I would imagine that the State of Penang Heritage Enactment 2011 and its articles, takes precedence; and (b) if indeed the terms of the contract of employment prevent the Heritage Commissioner from performing the functions required of him by the SOPHE 2011 because the terms in his employment contract prevent him, then that employment contract may illegal or unenforceable.
The second possibility that comes to mind, is that the Heritage Commissioner has no resources, either human or financial, in order to do anything. If the State Authority who created the role of Heritage Commissioner (see above) does not come to his aid to ensure all other relevant state agencies cooperate with and provide resources to the Heritage Commissioner, then the Heritage Commissioner is reduced to a monk with a bowl begging from door to door, and likely with less success.
But surely the State Authority is aware of all of this? Who is the State Authority anyway? It does not appear to be defined in the enactment, and indeed it is not defined in the Heritage Act 2005 except for the part concerning the Minister in charge of the Federal Territories, from which we get guidance and illumination. That has been described in an earlier commentary. Also, you will note that it is State Authority, and not State Authorities. The party being referred to, if we take the example shown in the Heritage Act 2005, is the Chief Minister.
The other party that might also be in the know and have a responsibility, is the Penang State Legislative Assembly that raised a bill that put into law the SOPHE 2011 that creates both the Penang Heritage Council and Penang Heritage Commissioner, although their approval is not necessary for designating heritage sites, unlike the approval from the State Authority aka Chief Minister, which IS a requirement.
CAN PUTRAJAYA / KUALA LUMPUR TAKE OVER?
When one considers the Heritage Act 2005, it is clear to see the federal statute is self-contained, and does not actually require the existence of the SOPHE 2011 in order for the act and its articles to function. A simple way for the federal authorities to ensure the objectives of the Heritage Act 2005 are worked towards and achieved to the standard of quality and excellence they, the federal authority, require is not complicated, in fact very simple, but may prove financially painful for the Penang State Authority.
Jabatan Warisan Negara (National Heritage Department) can set up Jabatan Warisan Negara, Cawangan Pulau Pinang (National Heritage Council, Penang Branch), with adequate human resources to support activities -- to identify, list, inventory, etc. etc., basically all the activities needed to meet the objectives of the Heritage Act 2005 -- which would mean there would not even be a need to ask the Penang Island City Council to clear an area or cut the grass because the branch operations would have the funds to do so.
Funds from where? Funds held back by the federal authority meant for the federal allocation to Penang, of course. I am not so sure how much funds will be held back.
I do not think the new branch operations will be efficient -- I mean look at the size of the cabinet, the number of ministers and deputy minister we have -- and human resources alone could be pretty expensive, depending on the number of people Jabatan Warisan Negara decides to employ to handle Penang.
But I imagine that they would be effective. Certainly more effective than a Heritage Commissioner and his office, or a Chief Minister, that allowed an act of destruction he had been alerted to months before, to happen.
But if Jabatan Warisan Negara and the Ministry they belong to want to do anything, they better get moving fast before Budget 2023 allocations are handed over to state authorities.
ACTION TAKEN TODATE AGAINST DESTRUCTION OF MONUMENT
It has been one and a half months and counting since the monument was destroyed and the authorities talked about investigating and taking action. Till now, nothing has been done.
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