TRANSFORMADORES HASTA AGOTAR EXISTENCIAS

 The Antiquities and Treasure Trove Ordinance, 1957 (No. 14 of 1957), Treasure Trove Act 1957 (Act 542), and Antiquities Act 1976 (Act 168)

Heritage protection at national level in Malaysia began with the introduction of the.

The Antiquities and Treasure Trove Ordinance, 1957 or ‘Ordinance’ came into enforcement on 31 December 1957. The Ordinance as its name suggests, covered matters pertaining to both antiquities and treasure trove. Subsequently in 1976, the

Ordinance was repealed by the Antiquities Act 1976 (Act 168). With the repeal, matters pertaining to antiquities and treasure trove which was originally covered under a single legislation are now governed under two separate Acts. The repeal in essence negated the antiquities section within the Ordinance, while matters pertaining to treasure trove was retained and presented as the Treasure Trove Act 1957 (Act 542). Hence matters pertaining to treasure trove in this new Treasure Trove Act 1957 are parallel to that under section 35 of the Ordinance. The Treasure Trove Act 1957 was subsequently repealed upon the enactment of the National Heritage Act 2005. However the Treasure Trove Act 1957 is still relevant for States that do not adopt Part XI of the National Heritage Act on matters relating to treasure trove. As the Act deals with treasure trove and does not encompass immovable cultural heritage, the Treasure Trove Act 1957 will not be discussed further in this study.

The Antiquities Act 1976 (Act 168) covers many of the matters pertaining to protection of antiquities that were originally contained under the Antiquities and Treasure Trove Ordinance, 1957. As the Act arose from the Ordinance, the similarities in its provisions are therefore not surprising. The following discussion provides a comparative overview of the areas that are covered by both these legislation with regards to the protection of tangible cultural heritage.

(a) Heritage protection

Listing and gazettal have traditionally been the primary practice used to protect heritage. Cultural heritage are afforded protection under all 3 Malaysian Federal heritage legislations through gazettal. The Ordinance under section 17 (2) and the Act under section 15 (2) provides for the publication of a list of protected ancient monuments and historical sites that are of religious, historic, traditional or archaeological interest.

Cultural heritage is described by both the Ordinance and the Antiquities Act as

‘ancient and historical monuments’ and although similar definitions are used to define the term, a primary difference between the two legislations is the period when these cultural heritages qualify for protection.

‘Monument’ in both the Ordinance and the Antiquities Act is defined as:

‘...any temple, church, building, monument, port, earthwork, standing stone, keramat, cave or other structure, erection or excavation, and any tomb, tumulus or other place of interment or any other immovable property of a like nature or any part or remains of the same, the preservation of which is a matter of public interest, by reasons of religious, historic, traditional or archaeological interest...’ ("Antiquities Act 1976 (Act 168)," Sect 2; "The Antiquities and Treasure Trove Ordinance,1957 ", Sect 2(d))

However, an ‘Ancient monument’ in the Ordinance is any monument that predates dates 1 January 1850; while section 2 (1) of the Antiquities Act on the other hand states that an ancient monument is ‘…any monument in West Malaysia which is or is reasonably believed to be at least one hundred years old...’ ("Antiquities Act 1976 (Act 168)," Sect 2(1)) Hence the definition for ‘ancient monument’ in the Ordinance remains static and consequently limiting, as it does not have the flexibility provided in the Antiquities Act which allows a monument to incrementally qualify as an ‘ancient monument’ upon reaching the stipulated minimum age of a 100 years old. This is significant for Malaysia as a side for the World Heritage Sites of Melaka and George Town, the Historic Cities of the Straits of Malacca and archaeological remains such as the fortifications at Kota Kuala Kedah, the Dutch Fort at Pulau Pangkor and remains of the early Bujang valley civilization, the majority of our built cultural heritage were

constructed after 1850 and therefore would not qualify for protection under the Ordinance.

In both the Ordinance and the Antiquities Act, a monument needs to have religious, historic, traditional or archaeological interest to the public and its value as mentioned above is measured by age. While a firm date is given when an ancient monument qualifies for listing, the definition of ‘public interest’ is vague. An additional weakness of both these legislations is the possibility that although a cultural heritage maybe identified as having religious, historic, traditional or archaeological significance, it cannot be protected if it does not meet the minimum age requirement and therefore can be demolished.

The 1850 limit used in the Ordinance may have been derived from Britain’s Ancient Monuments Preservation Act 1882, as Malaysian legislations in its formulation historically borrowed heavily from English laws. This is also perceived because although the 1957 Antiquities and Treasure Trove Ordinance came into enforcement on 31 December 1957, the Ordinance was enacted on 1 July 1957 at the cusps of Independence and states that it was, ‘…enacted by the High Commissioner of the Federation of Malaya and their Highnesses the Rulers of the Malay States with the advice and consent of the Legislative Council…’ ("The Antiquities and Treasure Trove Ordinance,1957 ", Preamble)

The Ancient Monuments Preservation Act of 1882 is Britain’s first Monuments Preservation Act in which listed pre-historic monuments in its schedule. Subsequent Royal Warrants extended the recording date for monuments in the British statute and a Royal Warrant signed by Queen Elizabeth on 29 March 1946 extended an earlier termination date of 1714 which marked Queen Anne’s ascension, to 1850 (Sargent, 2001).

Although 19 years had passed since the Ordinance and Antiquities Act was enacted, the focus of protection for both these legislations remains on a single object or monument, by the age prerequisite before it could be protected.

(b) Responsibility and power to gazette

Administratively both the Ordinance and the Antiquities Act 1976 make similar provisions. The jurisdiction to protect both antiquities and treasure trove under the Ordinance falls within the administration of the Director of Museums, Federation of Malaya. The same responsibility is given to the Director-General of Museums and Antiquities under the Antiquities Act. Section 17 (1) and (2) of the Ordinance accords power to the Ruler and High Commissioner to declare and gazette monuments and sites as historical. However the Antiquities Act 1976 under section 15 (1) with approval by the state, accords the same privilege to the Minister in charge of Museums; while the Director-General of Museums with the approval of the Minister is empowered to declare and publish a list of ancient monuments and historical sites.

The Ordinance under section 17 (2) and the Act under section 15 (2) requires for the list of gazetted ancient monuments and historical sites to be published and updated periodically.

(c) Limitations of the legislations.

While both the Ordinance and the Antiquities Act were comprehensive enough to cover issues pertaining to the safeguarding of objects or artefacts of historic importance, it was unable to provide an intensive framework for the conservation of larger and more complex entities such as towns and places which are recognized within international circles to have historic, architectural, social, scientific and educational significance.

Therefore enforcement under both these legislations focusses upon a single object or monument and also limited by the age prerequisite before it could be gazetted.