Minister’s discretion under National Heritage Act does not exist if abuse of power can be proven!
By Joe Fernandez
Source: Aliran (https://share.google/SAv60OfnisCSF6byb)
Commentary And Analysis . . . Discretion isn’t fortress; it’s function. When it’s abused, it’s nullity.
(https://jesseltontimes.com/2026/06/29/malaysia-neglects-english-language-foundation-in-law/)
Article 8
The law does not protect the Minister who destroys the very heritage the law commands that he preserves. Article 8, neutral and inexorable, records the abuse and the resistance alike.
Truth, with life force all its own, will emerge in the courtroom, the gazette, and the memory of the land. Time will prove everything. Fiat justitia ruat caelum (Let justice be done though the heavens fall).
The Minister’s discretion under the National Heritage Act 2005 isn’t unreviewable licence for inaction. If abuse of power — in the form of bad faith, improper purpose, or systematic failure on exercising the statutory powers for the purpose for which they were conferred — can be proven with factum probatum (proven facts) that discretion was vitiated and the court will intervene.
Abuse
The claim that such abuse has occurred in Bujang Valley was currently an allegatio non probata (not proven), pending the administrative record.
The truth about Bujang Valley’s destruction lies in the planning files, the ministerial briefs, the correspondence between the Heritage Commissioner and the Kedah state government, and the land‑use approvals.
The law provides the tools for excavation; what’s needed was the political will and the forensic resources for deploying them. The GiGo (garbage in, garbage out) principle in computerisation applies: the
public fed on theories without evidence outputs distorted understanding of the problem.
Seen: A demolished temple; a ministerial discretion that appears absolute.
Beneath: The administrative law framework; the sections 31 and 34 powers; the specific evidence of abuse (currently unexcavated); the debt of destruction; the available remedies of judicial review and constitutional challenge.
Article 8 remains neutral. It records the abuse and the advocacy alike.
Again, the eternal law based on the eternal truth isn’t the discretion of the Minister; it’s
the preservation of the memory of the land.
Veritas (truth), having life force all its own, will emerge in the courtroom that compels the protection, in the gazette that comes too late, and in the stones that will not be forgotten.
PARTIES IN DISPUTE
Whether the Minister’s discretion under the National Heritage Act 2005 can be challenged on the ground of abuse of power;
Whether there’s sufficient factum probatum (proven facts) for proving abuse of power in relation on the destruction of Bujang Valley’s candi; and
Whether the failure on utilising the interim protection power under section 34 constitutes justiciable omission.
CHRONOLOGY
4th–12th centuries CE: Bujang Valley flourishes as an Indo‑Buddhist trading centre.
2005: National Heritage Act 2005 (Act 645) enacted.
2013: Demolition of candi number 11 reported.
3 July 2026: Loh Chee Seng’s article published.
7 July 2026: The present jurist commentary issued.
The proposition under scrutiny was that the destruction of Bujang Valley’s ancient candi (temple) was not merely the consequence of an inadequate statutory framework, but an instance of abuse of power, and that where such abuse can be proven, the Minister’s discretion under the National Heritage Act 2005 ceases existence as lawful shield.
The jurist must determine whether the legal architecture of the Act, when read with the constitutional and administrative law principles governing the exercise of public power, permits the challenge of ministerial decision (or inaction) on the ground of abuse of power, and what evidentiary threshold must be met for vitiating that discretion. — TJT
Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat, as jurist (legal scholar), on the nature of human relationships.
DISCLAIMER: The views expressed here are those of the author/contributor and do not necessarily represent the views of Jesselton Times.
