OTROS MATERIALES

The NHA was developed as a comprehensive legislation to foster better management for conservation and preservation of cultural heritage in Malaysia ("National Heritage Bill tabled," 2005) The legislation covers ‘…the conservation and preservation of National Heritage, natural heritage, tangible and intangible cultural heritage, underwater cultural heritage and treasure trove…’ ("National Heritage Act 2005," 2005 Preamble) Living heritage is also included within the NHA under intangible cultural heritage. As evident in the preamble, Treasure Trove which was previously excluded from the Antiquities Act was presented as a separate legislation is now once again included as part of the heritage legislation.

(a) Heritage protection

Similar to the UK, Australia, USA and Japan, there are different levels of heritage listing in Malaysia. The NHA provides for a two-tier system for the inscription of cultural heritage; a ‘National Heritage Register’, also known as the ‘Register’ where heritage items are listed and ‘National Heritage’ where heritage items on the ‘Register’

that are of national importance is then further recognized.

The Commissioner of Heritage under sections 23(1), 24 and 45 of the NHA is directed to maintain the Register which lists objects, buildings and site, and areas which have been designated as heritage in order to safeguard, promote and preserve the nation’s heritage. While the Minister is to ‘…declare any heritage site, heritage object, underwater cultural heritage listed in the Register or any living person as a National Heritage’ ("National Heritage Act 2005," 2005 Section 67(1)). The NHA provides 9 criteria for inscribing cultural heritage as National Heritage.

These criteria are as follows:

a) The historical importance, association with or relationship to Malaysian history;

b) The good design or aesthetic characteristics;

c) The scientific or technical innovations or achievements;

d) The social or cultural associations;

e) The potential to educate, illustrate or provide further scientific investigation in relation to Malaysian cultural heritage;

f) The importance in exhibiting a richness, diversity or unusual integration of features;

g) The rarity or uniqueness of the natural heritage, tangible or intangible cultural heritage or underwater cultural property.

h) The representative nature of a site or object as part of a class or type of a site or object; and

i) Any other matter which is relevant to the determination of cultural heritage significance.

("National Heritage Act 2005," 2005 Sect 67 (2))

The above criteria for National Heritage listing is similar to the criteria provided in the State of Victoria, Australia’s Heritage Act 1995 to list cultural heritage on the State Heritage Register ("Heritage Act 1995," Sect. 8(c), 8(2)). The State of Victoria has since 2008 revised its criteria for State Heritage listing (Victoria, 2008).

The process for inscription is shown in Figure 3.1 (see below). The process allows for objections from relevant stakeholders on the listing.

Consult with the state party on sites, objects or underwater cultural heritage that is under

the state jurisdiction

Notify owner, guardian, or trustee of the site, object or underwater cultural heritage at

least 30 days prior to the declaration of the site, object

The Minister makes a order which is published in the Gazette S.67(1)

A copy of the gazette is delivered to the owner, guardian or trustee of the site, object or

underwater cultural heritage or living person

Objection in writing is made to the Minister within 3 months from the date the publication

and application to the Minister for the revocation of the order maybe made

S.67(8)NHA 2005

The Minister upon advise of the Council can revoke or refuse to revoke the order and the

decision is final. S.67(9)NHA 2005 Identify nominee from the Heritage

Register

Figure 3.1: Process for inscription of heritage Source: JWN

Under the NHA, a cultural heritage is eligible for listing if it meets any of the 9 criteria. Age which was a condition in both the Ordinance and the Antiquities Act for eligibility is not a criterion under the NHA. NHA recognizes cultural heritage significance as ‘…having aesthetic, archaeological, architectural, cultural, historical, scientific, social, spiritual, linguistic or technological value’; ("National Heritage Act 2005," Sect 2) nevertheless the level of importance which qualifies a cultural heritage to be protected is not mentioned. The earlier legislations placed emphasis on preservation of monuments that are of ‘public interest’.

A key shortcoming of the NHA is that although criteria for National Heritage listing are provided, the Malaysian Government has not published guiding principles to facilitate the interpretation, use and assessment of these criteria. The absence of guiding

principles is critical as it leaves assessment of cultural significance open to interpretation (Goh, 2015). In addition although the NHA states in section 67 (1) that National Heritage is selected from cultural heritages that are listed on the Register, it has not identified criteria or significance for listing on to the Register.

In addition while the legislations provide protection of heritage through listing, consent from the State Authority has to be obtained before a property on State land can be listed. This complicates the designation process as there is no alternative avenue provided in these legislations if consent for listing is withheld by the State Authority.

The NHA unlike the earlier Federal heritage legislations allows the public to nominate a building for designation as a heritage site. In addition, the legislation also allows for a cultural heritage to be declared a heritage site without the owner’s consent as long as the State Authority agrees to the listing. This is demonstrated by the Malaysian High Court’s decision in 2006 to uphold JWN’s gazettal of the Vivekananda Ashram which was contested by the Ashram trustees (Bavani M, 2016; Khairiah N.

Karim, 2016). The gazettal of properties without owners’ consent can results in negative sentiments as owners’ may feel that their right to develop their properties are impinged upon by the gazettal. In addition while the NHA under section 125 (3) provides for the continuity of listing for cultural heritage that are listed under the Antiquities Act, this process has not been automatic. At present not all of the cultural heritages that formerly were listed are currently included in the Register.

(b) Definitions

An additional weakness of the NHA is the ambiguous or convoluted definitions provided for several crucial terminologies. For example, the NHA defines ‘National Heritage’ as ‘…any heritage site… declared as National Heritage under section 67’, ("National Heritage Act 2005," Sect 2) which in effect refers to the 9 criteria for

selecting cultural heritage for National Heritage nomination. More importantly the given definition does not make clear that evaluation of cultural heritage for National Heritage is to be done in light of national standards, as opposed to state or other values.

This is further compounded by the definition given for ‘cultural heritage significance’

which does not address the need to distinguish between national, state, regional or local standards hence open to interpretation.

The definition for ‘building’ in NHA ‘...means 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 point of view of history, art or science’ ("National Heritage Act 2005," Sect. 2). Archaeological sites within the definition of ‘area’ to include‘...archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view’ and in the definition for natural heritage, ‘...of outstanding value from the point of view of nature, science, history conservation or natural beauty including flora and fauna’ ("National Heritage Act 2005," Sect. 2)

While the definition for ‘building’, ‘area’ and ‘natural heritage’ in the NHA connotes significance which is of outstanding universal value, the same significance is not clearly translated into the definition of National Heritage.

Nevertheless the values which are identified in the definition for ‘building’, ‘area’

and ‘natural heritage’ which fall among the matters that are protected through National Heritage listing under section 67 are not all reflected in the definition for ‘cultural heritage significance’. The values included for cultural heritage in the definition for cultural significance are aesthetic, archaeological, architectural, cultural, historical, scientific, social, spiritual, linguistic and technological ("National Heritage Act 2005,").

Hence art or artistic value, ethnological value and anthropological value are not included.

Other amorphous terms include definitions provided for ‘heritage’, and ‘heritage site’. However the definitions given for monuments, buildings and sites in the NHA closely resembles the term used in the 1972 UNESCO World Heritage Convention for

‘cultural heritage’. These new definitions are different from that which was used for similar terms in the earlier Ordinance and Antiquities Act.