Legal Irresponsibility: How Official Statements on Heritage Law Bypassing Invite Criminal Liabilities

The statement made by Penang Chief Minister Chow Kon Yeow regarding the demolition of Category II heritage buildings outside the UNESCO zone represents a dangerous misreading of Malaysian law. By publicly asserting that heritage buildings outside the gazetted zone can be demolished "subjected to council’s approvals," an official narrative is created that directly contradicts federal statutes. This misinformation can mislead developers into actions that risk criminal charges under the National Heritage Act 2005 (Act 645).

1. The Purposive Violation (Act 388 vs. Municipal Discretion)

Under Section 17A of the Interpretation Acts 1948 and 1967 (Act 388), all laws must be interpreted to fulfill their core purpose. The long title of the National Heritage Act 2005 clearly mandates the "conservation and preservation of National Heritage, natural heritage, tangible and intangible cultural heritage."

By treating Category II historical structures as mere disposable assets subject to localized municipal convenience, political leaders ignore the statutory purpose of heritage protection. Municipal approval does not absolve an entity from federal statutory obligations, and relying on loose executive statements can lead developers straight into a legal minefield.

2. The Fallacy of the "UNESCO Boundary" Shield

The Chief Minister’s argument implies that heritage value ceases to exist once a building sits outside an artificial UNESCO line. Legally, this is completely untrue:

* Act 172 Obligations: The Town and Country Planning Act 1976 (Act 172) applies nationwide, not just within UNESCO boundaries. Sections 21A and 21B mandate that development plans must explicitly account for buildings of "special architectural or historical interest."

* The Federal Oversight: Local councils do not possess the ultimate sovereignty to sanction the destruction of historical assets when those assets fall under the broader definition of "heritage per se" protected by federal frameworks.

3. Creating Criminal Vulnerabilities for Developers

When high-ranking officials state that demolition is legally clear based on local council whims, they encourage a climate of "mischief." If a developer acts on this advice and destroys a structure that is subsequently found to hold undeniable national or cultural heritage value, the developer faces prosecution under Act 645.

* Section 112 of Act 645 imposes severe criminal penalties—including imprisonment and massive fines—for the unauthorized destruction or defacement of heritage.

* A municipal permit issued under a flawed legal premise is not an absolute defense against a federal criminal prosecution.

Conclusion

Public officials must refrain from making sweeping statements that dilute the strictness of conservation laws. Proclaiming that 100-year-old Category II government quarters can be flattened simply because they sit outside a specific boundary is a failure of statutory duty. It replaces rule of law with executive convenience, inviting legal chaos and the permanent destruction of Malaysia's built heritage.

A Warning to Developers and Contractors, Engineers and Architects

Anyone demolishing—or planning to demolish—a historic structure based on executive assurances must consider the severe legal reality:

Objective Heritage Status: A building's legal significance is determined by its architectural age, cultural history, and the statutory criteria of the National Heritage Act 2005, not by political boundaries [645].

The Executive Immunity Shield: The Chief Minister is legally protected from personal liability regarding statements made in an official capacity.

The Sole Liability: If you flatten a heritage asset based on an incorrect executive statement, you alone will face criminal prosecution, massive statutory fines, and potential imprisonment under federal law.

When the state government faces a legal challenge, the politicians will step behind their legal immunities. You will be left standing alone in the criminal dock.

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https://www.malaymail.com/news/malaysia/2018/12/05/old-buildings-outside-penangs-heritage-zone-can-be-demolished-says-chow/1700343

Old buildings outside Penang’s heritage zone can be demolished, says Chow
By Opalyn Mok
Wednesday, 05 Dec 2018 3:42 PM MYT

GEORGE TOWN, Dec 5 ― There are no special requirements that prevent the demolition of heritage buildings outside of the Unesco World Heritage Site here, Penang Chief Minister Chow Kon Yeow said.

The Penang lawmaker said heritage buildings listed under Category II of the state heritage building list can still be demolished as long as it is done with the necessary approvals from the local council.

“For class two heritage buildings outside heritage area, there are no specific requirements that it can not be demolished, but they are subjected to council’s approvals, depending on the condition of the buildings,” he told a press conference today.

Chow was asked whether the remaining three category II heritage buildings along Lebuhraya Peel will be demolished to make way for the Island Medical City (IMC) project.

Heritage buildings are categorised under Category I or Category II under the state heritage building list.

Category I is for buildings, monuments or sites of exceptional interest that has Outstanding Universal Values while Category II is for buildings or sites of special interest that warrant every effort being made to preserve them.

One Category II heritage building off Peel Avenue was already demolished to make way for the IMC project with three remaining buildings being earmarked for demolition.

Chow confirmed that the IMC project developer has already obtained the necessary approvals from the local authorities to demolish the remaining buildings.

He said those buildings were former government quarters and, though classified as Category II heritage buildings, will soon be demolished.

Chow recently officiated the groundbreaking ceremony of the RM2 billion IMC project.

The project is an expansion of the current Island Hospital and it will include a 600-bed medical complex, medical suites and a medical tourism hotel.

Heritage watchdog, Penang Heritage Trust’s (PHT) Khoo Salma criticised the state government for allowing these buildings to be demolished.

“Although a State Heritage Enactment was passed in 2011, it has not been used to protect any buildings,” she said.

“Although our government is basking in the glory of Unesco recognition, there is no political will even to protect its own buildings. How sad is that,” she posted on her Facebook page a day after the groundbreaking ceremony.