Malaysia: Draft Media Council Act (July 2020) – Legal Analysis

In this analysis, ARTICLE 19 reviews the draft Media Council Act, July 2020 (the Draft Act), currently being discussed in Malaysia, for its compliance with international freedom of expression standards.

ARTICLE 19 has already analysed an earlier draft of this Act (in March 2019) and offered a number of recommendations to improve it. In particular, we recommended that the drafters improve the Act’s clarity, provide for greater transparency in the consultative process, and ensure the independence of the Media Council from government, commercial, or other interests.

ARTICLE 19 appreciates that a number of our earlier recommendations were incorporated into the most recent draft of the Act. These include expanding Media Council membership explicitly to independent journalists, adding procedural clarifications, removing the veto power of the Chairperson, ensuring balanced gender representation, and remedial actions including the publication of correction and reply. Also, the Report of the Pro-tem Committee (Committee Report) makes a recommendation to review the regulations of the Communications and Multimedia Act 1998 (CMA), as well as to reform and repeal repressive legislation, including the Sedition Act 1948, the Official Secrets Act 1972, and the Printing Presses and Publications Act 1984. The Draft Act also makes a general call for reforms to address censorship, criminal defamation, and secrecy laws (though we continue to suggest that mention of the Security Offences (Special Measures) Act 2012 be included in this list). We also welcome that the Committee Report makes explicit reference to the International Covenant on Civil and Political Rights as well as the Universal Declaration of Human Rights.

While the revision of the Draft Act features many positive developments, we observe that many of the improvements do not go far enough in addressing our underlying concerns. We wish to highlight the following:

  • Numerous features of the Draft Act continue to call into question the independence of the Media Council and its Executive Committee (Exco) from government, commercial, or special interests. These include the lack of prohibition of political party members or media owners from being elected to the Exco, the lack of provisions guaranteeing functional and administrative autonomy of the Council and Exco, and the lack of clear restrictions on funding from government sources.
  • The Draft Act includes a Draft Code of Conduct—which is supposed to be provided by the Media Council and Executive Committee—before these bodies even exist. The Committee Report indicates that the Draft Code of Conduct was drafted by a “subcommittee” and it is unclear what stakeholders, if any, were included or consulted in the drafting of this Code of Conduct, as there is little transparency regarding the process. ARTICLE 19 therefore remains concerned about the process that led to drafting the Draft Act. We continue to submit that any agreement on press regulation requires broad public participation and agreement between all relevant stakeholders.
  • Finally, while the Committee Report recommends review and removal of restrictive provisions in the CMA, and the Draft Act Schedule C indicates that the proposed Draft Code of Conduct would supersede the CMA’s Content Code where there is a conflict, there is still no mention of the Malaysian Communication and Multimedia Commission (MCMC) anywhere in the Draft Act. Also, the Draft Code of Conduct would not come into effect with the Draft Act. It is thus still unclear how the proposed Media Council will interact with the MCMC, or how any overlap in their mandates will be reconciled.

ARTICLE 19 believes that these problematic aspects of the Act have significant implications for freedom of expression in Malaysia, and we urge the drafters of the Act to revise them prior to seeing the Parliamentary approval of the Act.

Summary of key recommendations

  • The Act should be a part of broader reforms in Malaysia to improve human rights protection. In particular, Malaysia should sign and ratify the International Covenant on Civil and Political Rights as a matter of urgency. This would send a strong message that international human rights standards are integral to any legislation related to the media, and freedom of expression in general, in the country.
  • The Act should clearly differentiate between the regulation of broadcast and print/online media. The relationship between the Media Council and the existing MCMC should be clarified. At the same time, we reiterate that regulatory bodies for the press should be set through an entirely voluntary process rather than legislation.
  • The Preamble of the Act should explicitly provide for the independence of the Council, the accountability of members of the profession to their peers, accountability of media outlets to the public, and protection for journalists.
  • The Act should include a provision explicitly stating that the functional, operational, and administrative autonomy of the Council and the Exco is fully guaranteed in all matters and that any economic or political interference is prohibited.
  • The Act should specify that members of the Exco cannot be members of the government or members of a political party.
  • The Act should not include a Draft Code of Conduct. Any media code of conduct should be adopted after a consultative, transparent, and inclusive process open to all relevant stakeholders and the public. The Code of Conduct should also be informed by international professional ethics and avoid vague, broad moral concepts. Bearing in mind the dynamic nature of the media and changing values in society, any code of conduct should be considered a working document subject to interpretation, rather than a set of rigid rules.
  • There should be a clearly defined procedure for additional appointments to the Exco, and definition for how additional appointments to the Exco will remedy issues of representation or balance; as drafted, the provision may be used to dilute the voice of existing stakeholders.
  • The possibility of the Exco to direct the nature, extent, and placement of corrections and replies should be limited.
  • Funding sources to the Council and Exco from the government should be explicitly restricted and only be a source of supplementary funds. Any governmental grant should not be perceived as conditional on the Council conducting its work in a manner which is not antagonistic to the government.

The Act should establish a scaled industry-specific levy as the main source of funds for the Council.