January 2019: The following draft constitution was prepared by CIJ in consultation with various journalist groups and academics. This electronic version was formatted with ease of access in mind and numbering does not follow the original document fully. For the definitive version, please access it within the CIJ-MCCHR report on page 16-22.
DRAFT CONSTITUTION FOR THE MALAYSIAN MEDIA COUNCIL
The Malaysian Media Council is a self-regulatory body for all journalists and news editors and exists to protect the freedom and independence of news organizations and journalists working within Malaysia. The media in Malaysia must be allowed to function in the manner for which it was designed and purposed, which is to build the country, uphold truth and justice, and check on abuse of power through information, opinions and ideas. In short, there is an urgent need to create a media environment that supports democracy and good governance, and promotes human and social development, protected by Article 10 of the Federal Constitution.
For this to exist, the media must be allowed to self-regulate with no intervention from the state unless invited by major stakeholders of media communication, namely the media owners, editors, journalists and the public. Self-regulation and restrictive laws cannot co-exist. The path to self-regulation needs to start with the repeal of restrictive media laws to ensure the regulatory environment supports the absence of restrictions on the media. All this to be in tandem with the move towards self-regulation and this comes in the form of a media council.
Media is a reference to the media community as a whole which includes media organizations, media owners and media practitioners or journalists and this includes publishers and editors. Media constitute a space in which the debates and issues of a society can be articulated.
Media organization is defined as an organization with an editorial structure which provides news content for public consumption. This includes, but not restricted to, organizations that produce news content in these forms: text, photographs, infographics, video and audio for print, broadcast and online media.
News content is also referred to as editorial content or media content. News content serves to inform, educate, raise public awareness and encourage public discourse. That which will not be considered as news content include: content published or broadcast in media channels owned by political party for their members as this is propaganda; content produced by advertising and public relations agencies as this is marketing content or branded content; advertorials; blog posts by individuals as these are personal views expressed in a public sphere; and sites that publishes curated content as the content is not generated by site owners but taken from another source. All these are outside the purview of the media council.
Journalism is the act of gathering, assessing, creating, and presenting news and information for public consumption and this includes news, feature stories, opinions, commentaries, analyses, radio packages, videos, photographs and infographics.
A media practitioner is person who is directly involved in the editorial operations of the media organization from the news gathering process to production and post-production.
Media council will be the term used instead of “press council” to denote a broader membership composition. Press council tends to be perceived as a body whose membership is confined to print organizations while media council is perceived as a body with a multi-channel membership that includes broadcast and online media. The media council is a self-regulated body that does not come under the purview of any government ministry, agency, official or persons appointed by the government.
Self-regulation is combination of standards (1) setting out the appropriate codes of behavior for the media that are necessary to support freedom of expression, and process how those behaviors will be monitored or held to account. Self-regulation can also drive up professional standards by requiring organizations to think about and even develop their own standards of behavior.
Editorial independence is taken to mean the right of journalists to decide what to cover, how to cover it and where to place the story in a newspaper, magazine, online or broadcast, regardless of the views of the owners. This will enable journalists to operate free of direct and indirect control of the commercial interests of the owners. In doing so, journalists are required to, at all times, uphold the Code of Conduct approved by the media council.
ARTICLE ONE: AIMS AND OBJECTIVES
1.1 To promote and protect freedom of the media in Malaysia, as guaranteed under Article 10 of the Federal Constitution of Malaysia and Article 19 of the Universal Declaration of Human Rights;
1.2 To promote ethical conduct among journalists and media practitioners, as outlined in Schedule 1, the Code of Ethics for Journalists in Malaysia;
1.3 To set standards of excellence in ethical conduct and reporting through model policies and research;
1.4 To provide the general public with a complaints and redress procedure;
1.5 To educate the legislators, journalists, media owners and the general public on the role of ethical and responsible journalism.
1.6 To collaborate with similar bodies locally or internationally with the aim of sharing best practice and improving regulation within Malaysia.
ARTICLE TWO: MEMBERSHIP AND GOVERNANCE OF THE MALAYSIAN MEDIA COUNCIL
- Membership of the Malaysian Media Council (henceforth “the Council”) shall be open to all organizations, journalists and individuals actively involved in the regular production of news content whether in print, broadcast, or published online; and
- Who agree to abide by, uphold and promote the Code of Ethics for Journalists in Malaysia (Schedule 1); and
- Who agree to abide by the decisions of the Board in matters of public complaint, including, but not limited to, the printing of retractions or apologies; and/ or the training of individual journalists and/ or editors; and
- Who has paid the requisite membership fees detailed in Schedule B; and
- In the case of organizational members, have openly and transparently declared the ownership and funding of their organization.
2.2 The Council shall be governed by a Board which shall be elected by the Membership as described in Article Three below.
- The Board shall, by simple majority, make a decision on the eligibility of any applicant or delegate such responsibility to a sub-committee.
- If an applicant for membership is found ineligible and they choose to appeal, they can bring a motion to the Annual General Assembly of the Council if they have the support of at least 50 current members.
ARTICLE THREE: ELECTION OF THE MALAYSIAN MEDIA COUNCIL BOARD
- The governing body of the Council (herein known as “the Board”) shall consist of nine members elected by current members at an Annual General Assembly, with not more than one member coming from a single media organization;
- Three elected members shall be drawn from editors and management; three members shall come from journalists, including freelancers; and three members shall be drawn from the public on a rotating basis as outlined in Article Four;
- The election of the Board is for a two year term, with an individual able to serve a maximum of four years.
- Eight weeks prior to the Annual General Assembly, the current Board shall publish a call for applications from the general public, clearly stating the criteria upon which selection for election shall be made, with a closing date for applications being no more than three weeks before the Annual General Assembly;
- Based upon the published criteria, which should include ensuring diversity of the Board, the outgoing Board shall present a minimum of six names to the Annual General Assembly, from which three shall be elected;
- Should there be less than six applicants from the general public by the closing date, the Board has the authority to approach respected individuals to ensure the requisite number of candidates are submitted to the Annual General Assembly.
- All currently paid-up Members are eligible to stand for election in either the editor or journalist category, unless constrained by Article 3.6 below;
- Members of the Council, or persons who qualify for membership, are not eligible to stand in the public category.
- The conduct of elections shall be the responsibility of outgoing Board members who are not standing for re-election;
- In the absence of an outgoing Board, a board of three eminent persons can be invited to conduct the elections.
3.4.b A list of candidates in each category shall be sent to each Member no less than two weeks prior to the Annual General Meeting,
- All currently paid-up Members are eligible to vote for the Board, whether in person, through a postal or online vote or through designating their vote to another Member; and
- Each member can vote for three candidates each in the editor, journalist and public categories.
- The three candidates in each category with the highest number of votes shall be elected to the Board.
- Should there be a dispute in the Electoral Process, the outgoing Board may appoint an Independent Arbitration Panel consisting of three members, including at least one eminent person, either a retired judge; an academic specializing in law; or a former chair of the Bar Council.
3.5 The Board shall elect from among the public members of the Board a Chairperson, whose responsibility is to convene meetings of the Board and to publicly represent the Council.
3.6 Board members shall serve a maximum of two terms.
3.7 Public members of the Board may, should they wish, serve two consecutive terms as ex-officio members, and be eligible for the rights and duties of ordinary Council members.
3.8 On the resignation or death of a Board member, an Extraordinary General Meeting may be held to elect a replacement, unless the resignation or death occurs within the four months prior to an Annual General Assembly.
3.9 Members of the Board who fail to attend three meetings of the Board in a row without written justification will be deemed to have vacated their position on the Board, triggering Article 3.8.
3.10 The Council may, by a vote of two-thirds at either the Annual General Assembly or at an Extraordinary General Meeting, remove a member of the Board if they are deemed to have brought the good name of the Council into disrepute.
ARTICLE FOUR: THE ANNUAL GENERAL ASSEMBLY AND EXTRAORDINARY MEETINGS OF THE COUNCIL
4.1 The highest decision-making body of the Council is the Annual General Assembly.
4.2 An Annual General Assembly shall be held within six months of the end of the financial year.
4.3 An Extraordinary General Meeting (EGM) of the Council shall be held if more than one fifth of the Membership sign a petition to the Chairperson requesting such a meeting, with such petition stating the purpose and extent of the EGM, including any resolutions to be debated, which shall be the full extent of the business of the EGM.
4.4 The Chairperson of the Board shall chair all meetings of the Council. In their absence, a vice-chair may be nominated from within the Board by the Chairperson or, in the absence of a nomination, as agreed upon in writing by the other Board members.
4.5 In addition to any other business, the Annual General Assembly shall:
- Confirm the minutes of the previous Annual General Assembly, as prepared by the Board, and the minutes of any EGM held since the previous Annual General Assembly; and
- receive and consider a report on the activities of the Board since the previous Annual General Assembly; and
- receive and consider audited accounts and a financial statement for the preceding financial year; and
- elect a minimum of four and maximum of five new members of the Board, to replace a similar number of outgoing members.
4.6 The Chairperson shall give Members at least eight weeks’ notice of the Annual General Assembly, and publish the date, venue and any submitted resolutions at least 14 days prior to the Assembly. Notices to all meetings should be sent out by any reasonable means, including electronic or post, and should also be published on the Council website.
4.7 Any resolutions that involve an amendment to this Constitution must be supplied in writing to the Chairperson at least 21 days prior to the Assembly. The Chairperson must provide written or electronic confirmation of receipt of such a resolution.
4.8 The quorum for the Assembly consists of at least a third or 50 persons representing the current Membership, whichever is lower.
ARTICLE FIVE: FUNDING AND FINANCES
5.1 The Council is a non-profit organization.
5.2 The Council may seek up to 75% of its funding from the Government or private bodies as long as such funding does not compromise the Council or the Board’s independence and impartiality.
5.3 Fees for organizational subscriptions and individual membership are set out in Schedule B and may be amended by a simple majority vote at the Annual General Assembly.
- The Board shall present an audited financial report to the Annual General Assembly to be debated and voted upon by the membership. The financial year of the Council shall follow the tax year.
- Should the Assembly be unsatisfied with the audited financial report, a motion passed by two-thirds of the Assembly can demand an audit of the accounts from an auditor that had not previously been associated with the Council.
5.5 Remuneration for the Board shall be determined by the Annual General Assembly.
5.6 The income and assets of the Council shall be applied solely to carrying out the purposes mentioned in Article One of this Constitution and at no time shall there be any distribution, whether in money, property or otherwise from its income or assets to its members as such or to any relative, trustee or representative of or for a Board member. In the event of dissolution of the Council from any cause, its net assets after payment of its just debts shall be distributed to such charitable or educational purposes as Council specifies.
ARTICLE SIX: COMPLAINTS AND REDRESS FUNCTION OF THE COUNCIL
6.1 Recognizing that the key public interface between the Council and the general public will be through its complaints mechanism, this Article sets out processes and procedures for public grievance mechanisms.
6.2 The Council provides arbitration free of charge, recognizing the service this function plays in ensuring public confidence in Members of the Council, and in helping to promote understanding of ethical journalism.
6.3 The Council shall provide a simple form to facilitate complaints, but shall accept all complaints regardless of format, as long as requisite information is provided. Anonymous complaints shall not be accepted.
6.4 The Board shall establish a complaints committee, which comprises at least one Board member, supported by the secretariat and outside experts as per invitation, to advise on the handling of complaints on a case by case basis. This committee has the power to dismiss or aggregate complaints for adjudication and provide advice to the board on their resolution.
6.5 The Board shall adjudicate all complaints on the basis of best practice journalism and in line with the Code of Ethics in Schedule A, publishing decisions on a public website or similarly accessible forum.
6.6 Complainants undertake to not seek redress for complaints from other bodies, including legal redress, until avenues of appeal under the Media Council are exhausted.
6.7 Complainants who make repeated, vexatious requests, as agreed upon by the Board, shall be fined RM10 and/ or be barred from accessing Media Council services.
ARTICLE SEVEN: THE SECRETARIAT, SUB-COMMITTEES AND OFFICES OF THE COUNCIL
7.1 The Board may appoint a secretariat to help with the daily administration and functions of the Council.
7.2 The Council may establish subsidiary offices to ensure that the Council is able to perform its duties in a fair manner across the territory of Malaysia.
7.3 The Board may appoint sub-committees to ensure the Council is able to carry out its aims and objectives in as representative a manner as possible. Appointments to sub-committees should take into account the need for the Council to accurately reflect the needs and aspirations of diverse populations in Malaysia, in terms of race, religion, gender, geography, and sexuality, among others.
ARTICLE EIGHT: MEETINGS OF THE BOARD
- The Board shall meet as many times in a year as the Chairperson deems necessary, but not less than five times between one Annual General Assembly and the next; or where four members of the Board require a meeting.
- In the latter instance, a Board meeting must be held within 21 days of the Chairperson receiving notice.
8.2 The quorum for the meeting of the Board shall be five members, and decisions made by a simple majority vote, with the Chairperson having a casting vote if votes are equal.
8.3 Meetings of the Board may be held in person or using electronic means of communication; regardless notice of at least seven days must be given prior to the meeting being held.
8.4 A member of the Board shall be elected Secretary and responsible for ensuring accurate minutes are taken and distributed.
ARTICLE NINE: AMENDMENTS TO THIS CONSTITUTION
9.1 Any amendment of this Constitution may be taken only by two-thirds of the Membership voting at a properly constituted Annual General Assembly either in person or in absentia.
9.2 All proposed amendments must be given to the Members in writing at least 21 days prior to the Annual General Assembly.
ARTICLE TEN: OPENNESS OF THE COUNCIL
10.1 Any member shall be able to request access to the records, books or other documents (however held) of the Council, and receive such access free of charge within a reasonable time-frame and in any instance within 21 days of the request.
ARTICLE ELEVEN: INDEMNITY
11.1 A Board or sub-committee member shall be indemnified by the Council against a loss or liability suffered or incurred by the member in the course of, and by reason of, discharging such duties as a member.
(1) The Importance of Self Regulation of the Media in Upholding Freedom of Expression, UNESCO