Thursday, 3 November 2011

TRICKY ISSUES ( PART 2) : DRAFTING A CONSTITUTION TO DEAL WITH OFF SITE MISCONDUCT ................... ( Article by Professor Hu Chi Ku Chi )
All club committees recognise and acknowledge the need to operate within the boundaries and perimeters laid down by the club's constitution. Rules and regulations capable of coping and dealing with all disciplinary issues need to be sufficiently wide , yet precise and clear in their meaning.
If , for instance, disciplinary proceedings can only be initiated when (a) letters of complaints (b) from members are (c) accompanied by supporting witness statements, three criteria have to be met. So how then does a club proceed when off site misconduct by a member involves a lack of credible witnesses, strangers as victims, and information which comes via a newspaper article ? It seems the committee's hands might well be tied.
What if misconduct , which involved an altercation between two members over a private matter, took place on a street corner ? What if the club has been made aware that some of its members have being ridiculed or defamed in e-mail correspondence between other club members ? What if nasty and vindictive comments were being made for all the world to see on twitter, facebook or website blog ? Has the committee the power to intervene and take disciplinary action , when no one has made a formal written complaint ?
Even though a committee might feel it is correct and proper to initiate an investigation under the disciplinary procedures laid down, has it got the authority to do so ? If the existing constitutional rules clearly suggest otherwise , the committee would be acting beyond its powers. The solution of course is to extent the scope of its powers but with all the necessary checks and balances put in place. But now we come to the nub of the problem : how to draft amendments which are sensible, unambiguous, legally watertight, effective, but with members' rights adequately safeguarded.
Drafting such an amendment, in my opinion, requires key phrases to be put in place :
- " In exceptional circumstances " .............this limits the application of the amendment to rare cases
- " the committee reserves its right " ..........this implies that the use this amendment is not automatic but discretionary
- " to consider taking disciplinary action " .... again not an automatic response but one based on careful thought and thorough review
- " providing the following criteria has been met " .....this will help to restrict the committee's powers and to provide the necessary safeguards to the members' rights.
Criteria may include the following :
- written proof of the reported misconduct arrived from a reliable source
- misconduct amounted to a serious crime , or a civil wrong which caused substantial damage to the alleged victim(s)
- misconduct has brought, or might well bring, the club into disrepute
- misconduct has caused, or might well cause, social unrest and tension within the club
- misconduct warranted disciplinary action, in that suspension or expulsion are both sanctions considered to be within the band of reasonable responses
Often clubs would be well advised to draft an amendment with its own supplementary notes to assist the interpretation and meaning of the words. Alternative drafts could also be drawn up , asking the membership to recommend which one would be most workable and acceptable. Consultation may be necessary as well as seeking outside expert opinion.

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