Reconceptualising Federal Heritage Protection
"The conventional administrative view of the National Heritage Act 2005 (Act 645) posits that national heritage protection is born strictly at the moment of gazettement. This treatise argues that such a view is a jurisprudential fallacy. By examining Act 645 through the lens of the Rule Against Absurdity, it becomes evident that formal listing in the Register is merely an administrative cataloging mechanism. Substantive, protective federal jurisdiction attaches to cultural property the moment it exists with heritage significance. To hold otherwise reduces the statutory powers of the Federal Government to an unworkable absurdity, rendering critical enforcement and penal mechanisms entirely redundant."
By Jeffery S. L. Seow
Straits Heritage Inquest
Thursday 4th June 2026
Part 1: The Jurisprudential Foundations of Absurdity
The Theoretical Battle: Textualism vs The Golden Rule
In the arena of statutory interpretation, a perpetual tension exists between strict textualism and purposive pragmatism. The literal rule of interpretation demands that the judiciary apply the exact, ordinary, and grammatical meaning of statutory words, treating the legislative text as an absolute reflection of legislative intent. Under this rigid doctrine, judges function as automated grammarians, bound to execute the literal text even if the outcome defies logic, penalises innocent behavior, or completely sabotages the statute's underlying objective.
The Rule Against Absurdity—traditionally known as the Golden Rule—emerged as a vital constitutional safety valve to remedy the paralysis of hyper-literalism. It is a foundational canon of construction predicated on a profound constitutional premise: Parliament, as the supreme legislative voice of the country, is a rational body that never intends to enact self-defeating loops, logical impasses, or patently unjust loopholes.
When a strict literal application of a statute brings about a preposterous result that shocks common sense, the Golden Rule empowers, and indeed mandates, the judiciary to depart from the literal dictionary meaning. The court may modify the words, alter their grammatical structure, or expand their definitions just enough to avoid the absurdity and give effect to the true legislative purpose.
[ Literal Rule ]
Strict dictionary definition of words
│
▼
Leads to a Logical Impasse?
│
┌───────┴───────┐
YES NO ──► [ Apply Literal Meaning ]
│
▼
[ Golden Rule Activated ]
Judiciary modifies text to preserve
rational legislative intent.
The Commonwealth Bedrock
The common law ancestry of this doctrine is firmly rooted in nineteenth-century English jurisprudence. The classic formulation was delivered by Lord Wensleydale in the landmark case of Grey v Pearson (1857) 6 HL Cas 61, where he laid down the definitive standard:
"…the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther."
The operational mechanics of this rule split into two distinct judicial pathways depending on the nature of the textual defect:
The Narrow Approach: Applied when a statutory word or phrase is inherently ambiguous and possesses multiple meanings. The judge selects the definition that aligns with logic and rejects the one that yields an absurd result.
The Broad Approach: Enforced when the statutory language has only one plain, unmistakable meaning, but applying that single meaning directly contradicts the statute's purpose or produces a shocking anomaly. Here, the court performs surgical modification—adding, omitting, or altering words—to rescue the law from its own drafting failures.
A classic example of the broad approach is found in Adler v George [1964] 2 QB 7. Under the Official Secrets Act 1920, it was a criminal offence to obstruct a member of Her Majesty’s Armed Forces "in the vicinity of" a prohibited place. The defendant committed the obstruction while physically inside the prohibited station and argued that he could not be convicted because being "inside" a place is linguistically distinct from being "in its vicinity."
The English High Court rejected this hyper-literal defense. To rule that the law punished obstruction outside the base but allowed individuals to obstruct forces with impunity once they breached the perimeter was a patent absurdity. The court modified the phrase "in the vicinity of" to read "in or in the vicinity of," preserving the protective purpose of the national defense statute.
Similarly, in R v Allen (1872) LR 1 CCR 367, the court faced a statute stating that whoever "being married, shall marry any other person during the life of the former husband or wife" commits the offence of bigamy. A literal interpretation would make the crime legally impossible to commit because a person who is already married has no legal capacity to contract a second marriage; the second "marriage" is a nullity at law.
The court applied the Golden Rule to avoid this structural dead end, interpreting the second instance of the word "marry" to mean "to go through a marriage ceremony."
The Malaysian Transposition and Section 17A
The Malaysian judiciary seamlessly assimilated these Commonwealth principles into our local jurisprudence, explicitly establishing that federal judges will not sit idly by while flawed statutory drafting compromises national justice.
In the foundational case of Leow Mei Lee v Attorney-General & Ors [1967] 1 MLJ 62, the brilliant Justice Raja Azlan Shah (as His Royal Highness then was) declared the court’s independence from blind literalism:
"When the strict, literal interpretation of a statute would lead to a result which would be manifestly absurd or palpably unjust, the court must use its good sense to avoid such a result."
This commitment to common-sense interpretation was vividly demonstrated in Re Low Hong Eng [1954] 1 MLJ 182. The High Court was forced to interpret statutory language regulating the disciplinary rolls of legal practitioners, which referred to a "barrister or solicitor in England." Because England maintains a strictly split legal profession, the disjunctive word "or" made literal sense in the United Kingdom.
However, Malaysia features a fused legal profession where practitioners are admitted simultaneously as both advocates and solicitors. A literal implementation of the word "or" in the Malaysian context would create a structural absurdity, rendering the disciplinary tracking of local lawyers unworkable. The court actively applied the Golden Rule, ruling that the word "or" must be read as "and" to preserve the practical operation of the law within the country.
Furthermore, in Public Prosecutor v Datuk Haji Harun bin Haji Idris [1977] 1 MLJ 180, the Federal Court confronted complex arguments regarding the retrospective application of amended criminal procedures. Lord President Tun Mohamed Suffian emphasized that statutory interpretation must safeguard practical functionality over rigid mechanics, stating that a statute must be construed so as to make it workable, and that courts must firmly reject constructions that lead to an absurd impasse or defeat the object of the written law.
Crucially, what began as an evolution of common-law judicial practice has now been codified as a statutory mandate under federal law. In 1997, the Federal Parliament amended the Interpretation Acts 1948 and 1967 (Act 388) by inserting Section 17A, which dictates:
"In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object."
[ Traditional Common Law ] ──► Golden Rule avoids manifest absurdity
│
▼
[ Codified Federal Law ] ──► Section 17A mandates purposive construction
In modern Malaysian law, Section 17A transforms the rule against absurdity from a mere common-law option into a statutory obligation. When a court analyzes the National Heritage Act 2005 (Act 645), it cannot view the text through a vacuum of isolated dictionary terms. The Federal Government’s statutory mandate to protect national culture means that any interpretation that invites an administrative or protective failure is a direct violation of Section 17A.
Part 2: Preamble, Punctuation, and Pervasive Definitions
The Long Title Deconstruction
The conventional administrative view of Act 645 operates under an entrenched assumption: an object, site, or piece of culture possesses absolutely no legal status or national protection until the formal administrative process concludes and a signature is printed in the federal Gazette. Under this line of thought, ungazetted heritage is completely invisible to the law. To demonstrate the absurdity of this view, one must begin at the absolute threshold of the legislation: the Long Title.
The Long Title of Act 645 reads as follows:
"An Act to provide for the conservation and preservation of National Heritage, natural heritage, tangible and intangible cultural heritage, underwater cultural heritage, treasure trove and for related matters."
In statutory construction, the punctuation and syntactic structure used by Parliament are highly deliberate. Notice the explicit grammatical separation engineered via commas: Parliament did not write a monolithic phrase protecting "registered heritage items." Instead, it explicitly detached and isolated "National Heritage" from "natural heritage, tangible and intangible cultural heritage".
Under the specific definitions of Act 645, "National Heritage" is a highly restricted, high-tier status achieved exclusively via a formal declaration under Section 67. If the conventional view were legally accurate—that only gazetted items fall under the protective wing of the Act—then the subsequent phrases listing general natural, tangible, and intangible cultural heritage would be entirely dependent on being inside that final tier.
If Parliament intended to restrict protection solely to registered assets, the Long Title would logically and simply read: "An Act to provide for the conservation of items declared in the National Heritage Register." By consciously listing generic categories alongside and separate from the declared "National Heritage," Parliament signals that the Act exercises an immediate protective custody over cultural property the very moment it exists within the territory of the federation, irrespective of its bureaucratic registration stage.
The Section 2 Definitional Dichotomy
This intentional multi-tiered structural design is confirmed beyond doubt when analyzing the statutory definitions built into Section 2 of Act 645. The section creates two fundamentally distinct legal concepts:
┌────────────────────────────────────────────────────────────────────────┐
│ SECTION 2 │
├───────────────────────────────────┬────────────────────────────────────┤
│ "HERITAGE" │ "HERITAGE ITEM" │
├───────────────────────────────────┼────────────────────────────────────┤
│ Generic meaning of site/object... │ Any National Heritage, site, │
│ "WHETHER LISTED OR NOT IN │ object... │
│ THE REGISTER" │ "LISTED IN THE REGISTER" │
└───────────────────────────────────┴────────────────────────────────────┘
This textual layout shatters the conventional administrative view. Parliament took extraordinary care to provide a statutory definition for generic, unlisted "heritage," explicitly adding the qualifier "whether listed or not in the Register."
It is an foundational canon of statutory interpretation that Parliament never writes words in vain (ut res magis valeat quam pereat). Every single word, syllable, and comma must be given operational meaning; the legislature is presumed to avoid empty tautology or useless prose.
If the conventional view were true, and protection only attached to items post-gazettement, then the legal category of an unlisted "heritage" site or object would have zero functional weight. It would be a definition without a purpose, dead ink on the page.
The very fact that Parliament created a distinct, legally recognized status for unlisted "heritage" proves that this generic category was designed to carry real operational consequences throughout the enforcement and protective mechanisms of the Act. The Register is not a magical portal that creates heritage out of thin air; it is merely a federal ledger that logs what the country already possesses and recognizes as inherently valuable.
Part 3: Operational Catch-22s and Executive Paralysis
The Commissioner’s Dilemma (Sections 6 and 7)
If we continue to force the conventional view onto the active operational sections of Act 645, the statutory machinery immediately locks up into an unworkable Catch-22, paralyzing the very executive office created to run it. Section 6 details the mandatory functions of the Commissioner of Heritage, drawing a sharp linguistic distinction between administrative cataloging and active field protection:
Section 6(a): mandates the Commissioner "to determine the designation of sites, registration of objects and underwater cultural heritage;"
Section 6(c): mandates the Commissioner "to supervise and oversee the conservation, preservation, restoration, maintenance, promotion, exhibition and accessibility of heritage;"
Note the precise textual pivot. Under 6(a), when dealing with the formal ledger, the statute refers to specific administrative actions like designation and registration. However, under 6(c), when handing out the heavy duties of supervision, conservation, and restoration, Parliament intentionally drops those narrow restrictions and uses the broad, generic word “heritage”.
As established by Section 2, "heritage" commands a definition that applies "whether listed or not in the Register." Therefore, the Commissioner is legally required by federal law to oversee and conserve unregistered, ungazetted heritage assets across the country.
To enforce the Commissioner's Section 6 duties, Section 7 equips the office with statutory powers, stating in 7(b) that the Commissioner has the power "to acquire, purchase, take, hold and enjoy movable and immovable property of every description," and in 7(d) "to do all things reasonably necessary for the performance of its duties under this Act."
[ Section 6(c) Mandatory Duty ] ──► Supervise and conserve generic "heritage"
(whether listed or not)
│
▼
[ Section 7(b) & (d) Powers ] ──► Power to acquire property & do all things
reasonably necessary
│
▼
[ Conventional View Conflict ] ──► "Powers can only be used AFTER gazettement"
│
▼
==============================================================
ABSURDITY: The Commissioner is legally forced to conserve
unlisted property, but legally banned from using enforcement
powers to touch it.
==============================================================
This creates a glaring absurdity. If the conventional view holds, a historic, unlisted building could be facing imminent collapse or unlawful modification by a private owner. The Commissioner would be trapped under a statutory mandate via Section 6(c) to oversee its conservation, yet completely barred under the conventional view from deploying any Section 7 powers to intervene, secure, or purchase the property because it is not yet gazetted.
The Golden Rule completely resolves this executive paralysis. Sections 6 and 7 must be interpreted harmoniously to mean that the Commissioner’s protective and interventionist powers attach to generic heritage properties the moment their cultural significance is identified, allowing the Federal Government to secure the site while the administrative gears of formal gazettement turn in the background.
Pre-Gazette Protective Orders (Sections 33 and 41)
The conventional view that protection is strictly a post-gazette reality is further exposed as a logical fallacy by the explicit existence of Section 33 (Interim Protection Orders) and Section 41 (Monument Preservation Orders).
Section 33(1) empowers the Commissioner to issue an Interim Protection Order over a site if it is deemed necessary for conservation and preservation.
Section 41(1) dictates that where a monument regarded as suitable for registration is in "imminent danger of demolition or destruction," the Commissioner shall serve a Monument Preservation Order "pending approval of its registration."
By definition, an order that is issued "pending approval of its registration" is served on an unlisted, ungazetted, and undesigned asset. These sections are specifically designed to stop private landowners from racing against the clock and bulldozing historic sites the moment they find out the Federal Government intends to register them.
If the conventional view were correct—that a site enjoys no legal protection under the Act prior to official gazettement—then Sections 33 and 41 would be legal anomalies. An owner could argue that because their building is not yet listed on the Register, the Act has no jurisdiction over them, rendering any freeze or preservation order completely toothless.
To prevent this dangerous loophole which would allow national history to be demolished while navigating bureaucratic queues, the Golden Rule requires the court to recognize that these sections vest the Federal Government with an immediate, temporary protective jurisdiction over unlisted property.
Criminalising the Unregistered (Section 47)
The final operational proof that the Act protects movable antiquities prior to gazettement is found in the criminal sanctions of Section 47, which governs the discovery of cultural objects:
Section 47(1): "Any person who discovers any object which he has reason to believe has cultural heritage significance shall immediately notify the Commissioner..."
Section 47(5): "Any person who contravenes subsection (1)... commits an offence and shall on conviction be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding five years or to both."
[ Citizen Finds Antiquity ]
│
▼
Object is UNREGISTERED
│
▼
[ Fails to Notify Federal Government ]
│
▼
======================================
Section 47(5): 5 Years Imprisonment
======================================
│
▼
CONVENTIONAL VIEW ABSURDITY: "Unregistered objects have no legal status"
but the state can jail you for 5 years for concealing an object that
the law supposedly doesn't care about yet.
Consider the factual reality of a newly discovered artifact dug out of the ground: it is entirely unlisted, ungazetted, and unknown to the federal registry. Yet, Section 47(5) hits a citizen with a massive five-year prison sentence or a RM50,000 fine for failing to report it.
If the conventional view were logically sound, an unlisted object would have no standing or protection under Act 645. It is an absolute jurisprudential absurdity to penalize a citizen for hiding or altering an object if that object possesses no protected status under the law at the time of the omission.
The existence of a heavy criminal sanction for an unregistered object proves conclusively that Act 645 casts an immediate protective blanket over potential cultural property the moment it is discovered on Malaysian soil, long before any formal paperwork is drafted.
Part 4: The Penal Black Hole
The Structural Collapse of Part XV
When we dive into the enforcement architecture of Part XV, the conventional view completely shatters, sending the statutory framework into a penal black hole. The entire penal block is built out of an imbalanced distribution of detail across Sections 112, 113, and 114:
Section 112 painstakingly details a comprehensive canvas of illegal physical actions regarding a Heritage Site. It explicitly criminalizes digging, constructing, altering, defacing, cutting down trees, quarrying, or demolishing a monument without a permit.
Section 113 (Heritage Objects) and Section 114 (National Heritage) are drafted with skeletal brevity. They state that no person shall destroy, damage, alter, or deface these items, but they omit the granular list of prohibited physical acts found in Section 112.
Under a strict, hyper-literal approach, an offender who severely alters or defaces a high-tier National Heritage object could mount a highly disruptive technical defense. They could argue that because specific actions like "quarrying," "unauthorized moving," or "structural defacement" are not meticulously spelled out word-for-word in Sections 113 or 114, their specific physical conduct falls outside the strict letters of those crimes.
This introduces a glaring absurdity: it would mean that ordinary local heritage sites receive highly detailed, ironclad protection under Section 112, while a supreme asset declared as a "National Heritage"—the country's rarest and most significant cultural treasure—is left exposed to dangerous legal loopholes due to skeletal drafting in Section 114.
To avoid this preposterous result, the court must deploy the Golden Rule to cross-apply the detailed descriptions of prohibited acts in Section 112 directly into Sections 113 and 114, ensuring that high-tier national cultural assets receive a standard of protection that is at least equal to ordinary sites.
The Arbitrary Permit Loophole
A parallel structural failure occurs regarding how permits are managed across these sections. Sections 112 and 113 state that a person cannot alter or damage a site or object "without a permit/written approval." However, both sections are completely silent regarding the conditions, criteria, or boundaries the Commissioner must follow when evaluating or issuing these permits.
In sharp contrast, Section 114 contains a razor-thin, highly restrictive exception: a permit to alter or affect a National Heritage asset can only be granted if it can be proved there is an urgent and immediate necessity for the safety of persons or property.
┌────────────────────────────────────────────────────────────────────────┐
│ THE PERMIT LOOPHOLE │
├───────────────────────────────────┬────────────────────────────────────┤
│ SECTIONS 112 & 113 │ SECTION 114 │
├───────────────────────────────────┼────────────────────────────────────┤
│ "No person shall alter/destroy │ Permits are restricted to: │
│ without a permit..." │ • urgent and immediate necessity │
│ │ • for the safety of persons │
│ [ NO CRITERIA OR LIMITS LISTED ] │ • or property │
├───────────────────────────────────┴────────────────────────────────────┤
│ LITERAL ABSURDITY: The Commissioner has unlimited, arbitrary power to │
│ sign commercial demolition permits for standard Heritage Sites, │
│ completely defeating the Act's purpose to conserve culture. │
└────────────────────────────────────────────────────────────────────────┘
If we apply a literal-only interpretation, the Commissioner is left with completely unfettered, arbitrary discretion when dealing with ordinary Heritage Sites (112) or Heritage Objects (113). Because no statutory limits are listed in those sections, the Commissioner could theoretically issue a permit allowing a commercial developer to demolish a registered heritage site for a shopping mall project, and that permit would be technically legal. The Commissioner is only legally constrained when a site climbs into the highest tier of "National Heritage" under Section 114.
Leaving a public official with unchecked power to authorize the destruction of registered heritage completely violates the Long Title’s mandate to "provide for conservation and preservation." It turns the entire enforcement arm of the Act into an administrative joke.
To cure this defect via the Golden Rule, the court must read the narrow, immediate-safety-only exception of Section 114 as the universal, implied standard governing all permit evaluations under Sections 112 and 113. The Commissioner’s power to issue permits must be bounded by the overarching purpose of preservation, preventing any arbitrary commercial destruction of the country's historic landscape.
Section 118 as the Ultimate Anchor
The final, decisive blow against the conventional view is delivered by the existence and architecture of Section 118 (the General Penalty clause) under Part XVI. The text states:
"Any person who commits an offence under this Act for which no penalty is expressly provided shall on conviction be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding five years or to both."
To fully appreciate the weight of this section, one must map out the specific criminal coverage of the preceding penal clauses:
Section 112 expressly penalizes offences against registered Heritage Sites.
Section 113 expressly penalizes offences against registered Heritage Objects.
Section 114 expressly penalizes offences against declared National Heritage.
This layout creates a fatal structural question for the conventional view: if national heritage protection only applies to items that are officially gazetted, then Sections 112, 113, and 114 already cover every single protectable asset in the entire country. If every legitimate target of the Act is already accounted for under those specific crimes, what is left for Section 118 to govern?
[ Total Universe of Gazetted Assets ]
│ │
┌─────────────┴───────────┐ │
▼ ▼ ▼
Heritage Sites Heritage Objects National Heritage
(Section 112) (Section 113) (Section 114)
│ │ │
└─────────────────────────┬───────────┘
│
▼
If ONLY Gazetted Assets Are Protected...
│
▼
=================================
Section 118 has no work to do.
It becomes completely redundant.
=================================
If the conventional view is correct, Section 118 has absolutely zero subject matter to handle. It becomes completely hollow, a major statutory drafting error that violates the core legal principle that Parliament never enacts redundant text.
Furthermore, from a constitutional standpoint, a general penalty clause cannot create an ambiguous, undefined crime out of thin air. In criminal law, a crime must be clearly defined so a citizen knows exactly what behavior is illegal (nullum crimen sine lege). You cannot lock someone up under a general penalty if the underlying prohibited act is left completely nameless.
To rescue Section 118 from becoming an unworkable absurdity, it must be interpreted to govern offences committed against generic, undesignated, ungazetted, and unlisted heritage assets.
Section 118 is the ultimate statutory anchor of your appellate theory. It is the protective net designed to catch the property owner who intentionally rushes to demolish an old building after receiving a notice of intention to register, but before the final bureaucratic signature hits the Gazette. It catches the looter who tampers with a newly discovered historic site before the Commissioner can formally process it.
Section 118 stands as definitive proof that Act 645 establishes an immediate protective custody over unlisted culture, ensuring that the country’s heritage is protected while navigating administrative channels.
Conclusion: Reconceptualising Act 645
The conventional administrative view of Act 645 suffers from a fundamental jurisprudential flaw: it confuses the administrative cataloging of an asset (the Register) which the country may be financially responsible for with the substantive jurisdiction of the Act (the National duty to protect). The Register does not create heritage; it merely lists what the Federal Government has successfully documented and chosen to fund or restore or manage itself.
When analyzed through the Rule Against Absurdity and the statutory lens of Section 17A, the National Heritage Act 2005 reveals itself not as a passive list of registered properties, but as an active shield for the country's cultural identity. Substantive, protective jurisdiction attaches to cultural property the moment it exists with heritage significance. To read it any other way reduces the Federal Government to a mere archivist, standing by powerlessly while unlisted history is erased.
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