HOW PENANG'S HERITAGE CONSERVATION ISSUES THAT THE STATE FINDS SO HARD TO SOLVE, CAN BE FIXED

 

HOW PENANG'S HERITAGE CONSERVATION ISSUES THAT THE STATE FINDS SO HARD TO SOLVE, CAN BE FIXED

On Sunday 28th August 2022 a 138 year old monument was destroyed, despite warnings given to Penang authorities as early as March 2022, that this would happen. Till now (Monday 3rd October 2022) there have been no reports of any action being taken by Penang authorities against the offender for the destruction of the monument.

Completed in 1884, it was set up by Capitan Chung Keng Quee (郑景贵) to memorialise the life of his tsai (妻) or principal wife, Foo Teng Nyong (胡丁娘) who died in childbirth the year before, 1883. Foo was entombed there just off the grass verge along Jalan Bungah Telang, Fettes Park, Penang.

It is not difficult for anyone to imagine this was a monument set up to celebrate the great love that Chung and Foo shared from a casual glance at the large ornate monument. Upon closer examination of the meticulously carved fruit, flowers, and animals that enacted scenes from Chinese mythology, it becomes easy to appreciate this monument was probably the finest example of 19th century Chinese creativity, design, artistry and craftsmanship. Perhaps even anywhere outside China. There is little doubt, to anyone with the knowledge and the eye to appreciate antiquities, that this easily qualifies as a cultural heritage treasure to be cherished by the country, let alone the state of Penang.

If it is true that Foo played a pivotal role by exerting a strong influence over the career and success of Chung, which is what we learn from Clement Liang who referred to historical records, then Foo, as much as Chung, was also responsible for the benefits the governments and peoples of George Town, Penang, Perak and indeed Malaysia, received from the Capitan China. The artistry of the monument itself appears to support this contention. Symbols like the rare dragon and even more rare mystical qilin, said to be present at the birth or death of a sage or illustrious leader, can be seen sculpted into the hard granite stones the monument was made of. If all of this is true, then the monument doubly qualifies as an object of cultural heritage worthy of protection, there already being so very little known about 19th century women in Malaya, and even less so in Penang.

PENANG AUTHORITIES CLAIM UNABLE TO GAZETTE HERITAGE

The Penang Heritage Commissioner was reported to have insisted that neither he, nor the Penang Executive Council nor even the Chief Minister himself, could gazette anything in the state without the concurrence of the Penang Heritage Council which he claimed had never been formed from the beginning.

It is unclear what local arrangements at Penang had made this so, but it is clear from a study of the State of Penang Heritage Enactment 2011 (SOPHE 2011), that state law had nothing to do with the destruction of Chung's Foo Teng Nyong monument, or the failure to gazette objects and 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 the power and authority that the Penang Heritage Commissioner, under the enactment, wields,

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 executive nature of 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 to 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, 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.

PUTRAJAYA / KUALA LUMPUR CAN 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.