Does the law prohibit art based on the national coat of arms?
An artist's painting that evoked the national coat of arms has come under scrutiny for allegedly violating the law by improperly using the emblem.
While interpretations and views of artistic works are subjective, the law is less so.
An artist's painting that evoked the national coat of arms has come under scrutiny for allegedly violating the law by improperly using the emblem.
While interpretations and views of artistic works are subjective, the law is less so.
Malaysiakini spoke to lawyers to get their legal perspective on whether it is illegal to make artistic works that are either based on, inspired by, or evokes the national coat of arms.
What laws cover the use of the coat of arms?
Use of the national coat of arms is covered by Emblems and Names Act 1963 (Act 414), with improper use prohibited under Section 3(1) of the Act, which states:
"Notwithstanding anything contained in any law for the time being in force, no person shall, except with the written permission of the Minister -
(a) use any specified name or specified emblem, or any colourable imitation thereof, for the purpose of any trade, business, calling or profession;
(b) use for the purposes of, or display as an advertisement for, any business, trade, calling or profession, or sell, any photograph, drawing or other pictorial representation of the Yang di-Pertuan Agong or the Raja Permaisuri Agong;
(c) use or continue to use any specified name or specified emblem, or any colourable imitation thereof, in the title of any patent, or in any trademark or design; or
(d) make for the purposes of sale or sell or have in his possession for sale, any specified emblem."
What do the lawyers say?
The following comments have been edited for brevity and language.
Mohamed Haniff Khatri Abdulla: To a certain extent, Section 3(1) of Act 414 prohibits the use of the national coat of arms as it is.
Does it include artistic works? This goes back to Section 3(1)(a) which says that it can't be used for trade or profession. An artist can be considered a profession, and hence artistic work is covered, whether it is for a comic, or to contribute to an exhibition with or without a fee.
This includes whether the artist referred to, or used the coat of arms and modified it.
Additionally, Section 268 of the Penal Code for public nuisance may also apply.
For any nation, its flag and emblems are something that is very sacred. If anyone comes out with artistic expression, joke or cartoon based on that, it may be offensive to a certain group. Even hanging the flag upside down is an issue.
The punishment for this is light, and maybe it is time to consider increasing the punishments for such cases.
Unlike in India, there is no constitutional responsibility for citizens to respect national symbols, but this does not make it unimportant. We should know what is right or wrong.
If an artistic work is to be made using national symbols, they should get permission from the ministry in charge first.
This is different from, say, putting a clown face on Najib Abdul Razak even though he was prime minister at the time because he is not a national symbol.
New Sin Yew: Section 3(1) of Act 414 prohibits improper use of the national coat of arms.
Improper within the context means using the coat of arms or any colourable imitation of it for the purpose of any trade, business, calling or profession without permission of the minister, which then becomes an offence.
It doesn’t make it an offence to “insult” or change or turn the Jata Negara into something indecent.
As for Section 3(1)(c), this applies when you want to include it in a trademark, patent, or design, Design, in this case, is an intellectual property term, like industrial design, and does not include book covers.
And as to the question of whether the publisher depicted the coat of arms in an indecent manner, I think that's really quite subjective. I'm not very artistic so I may not appreciate the message the publisher is trying to send but those who are more artistic could be able to.
But the point is we shouldn't be censoring others simply because we may not understand or agree with the expression or arrest people or prosecute them for that matter.
Zaid Malek, Lawyers for Liberty coordinator: We must correct the erroneous claim that an offence was committed.
Act 414 only prohibits the use of the official coat of arms without the written permission of the minister. It does not prohibit any artistic rendition inspired from the nation’s coat of arms such as the one used on the cover of the book, which no sane person would mistake for the country’s actual coat of arms.
The other laws under which the case is being investigated such as the Sedition Act, Section 233 of the CMA 1998 and the Printing Press & Publication Act 1984 are notoriously oppressive and anti-democratic laws, which should not be utilised by the authorities ever again. These laws should be urgently repealed in the coming session of Parliament.
The other laws under which the case is being investigated such as the Sedition Act, Section 233 of the CMA 1998 and the Printing Press & Publication Act 1984 are notoriously oppressive and anti-democratic laws, which should not be utilised by the authorities ever again.
These laws should be urgently repealed in the coming session of Parliament.
So, now PN has a valid gripe and a great distraction. The artist should have depicted an illegal government somewhere outside, or around the coat of arms to get around the vexatious issue of altering, defacing, insulting or allegedly illegal expressions. Maybe Paliament should enact a "Prohibition Against Satire Act" to make things really serious as an immature infantile nation-state.
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