— Anas Alam Faizli
The Malay Mail Online
August 05, 2013
AUG 5 — Back in 2008, the Malaysian government concluded the signing of a US-Malaysia FTA with 58 red lines or “red stops”, which discontinued the two-year negotiation. Among leading protagonists was then Agriculture Minister Tan Sri Muhyiddin Yassin, who mentioned that he would not compromise the livelihood of local farmers. He was even quoted as saying “over my dead body” by some quarters. Khairy Jamaluddin even led a protest, citing that the FTA would take away Malaysia’s sovereignty, while patent protection would deny access to generic medicine. Question is, what has changed in the past five years? One thing for sure, it is definitely not the content of the FTA.
Why Trans Pacific?
We can imply that TPPA is called Trans Pacific because of the geographic locations of the countries taking part in the negotiations, and between whom the agreement aims to conclude among. TPPA is unique in the sense that it is open-ended agreement. Any country interested to join can join in as long as they agree with the concluded text and other countries agree to the entry.
Every country participating in the TPPA already has an existing FTA with America except Japan, New Zealand, Malaysia and Brunei. Japan and New Zealand are developed economies with very large trade sizes with other countries in the world, and Brunei is a resource-rich nation with a less significant trade size. That leaves Malaysia, which has most at stake as a developing nation and a new entrant to an FTA with America.
What does this mean? It means that for countries with existing FTAs with America, the TPPA will probably just result in minor additions to status quo. But for our small economy, the TPPA will entail a much bigger impact.
The first TPPA negotiation was held in March 2010 among eight countries, while Malaysia joined in December 2010, followed by Mexico and Canada in December 2012. Recently, Japan joined in at the Kota Kinabalu negotiation round.
The content of the TPPA’s texts is confidential and negotiations are held behind closed doors. What we have are five leaked chapters, namely Investment, Intellectual Property, Trade to Barrier and Regulatory Coherence. MITI reported that it has almost concluded 14 out of the 29 chapters.
Previous US FTAs have shown that they do not vary much from each, with an average variance of about less than 5 per cent. This clearly indicates standardisation on the part of the Americans and reluctance in entertaining non-conforming measures (termed as “exclusions”) at the negotiation table. It can thus be implied that one FTA will not be that much different from another. Other US FTAs with Singapore, South Korea and Chile serve as good guidance for us to know what to expect in the TPPA.
On Investment and Sovereignty
This is arguably the biggest chapter, which also has linkages to most of the other chapters. This chapter will restrict the policy space of governments through its “Investor-To-State Dispute Settlement” (ISDS) and the “State-to-state Dispute Settlement” (SSDS) clauses. TPPA in this case supposedly “strengthens” trans-national “corporate” justice (fairness and equity) — by providing ways for multinational corporations to trample over national legal systems through international arbitration tribunals comprising three judges; two international and one local.
What do fairness and equity here mean? Mainly, MNCs can expect no local condition or regulation changes affecting them once there reside in a partner country. For example, if Malaysia suddenly happens to find out that a certain ingredient in tobacco is harmful, and decides to ban it thereby affecting the profitability of a tobacco MNC, the MNC has the right to sue the government for potential profit loss for the remaining period of its permit in the country, with interest. Such was the case with Phillip Morris, when it sued the Australian government over a new law onto cigarette packaging. The same could happen if Malaysia decides to be more stringent with Lynas, for example, in the future.
To consider the extreme, we can even go to the extent of saying that legislators and Parliament will be essentially rendered redundant; their hands will be tied to enacting only new laws that will not affect MNCs’ profitability and business viability! We recall Mexico being sued for US$16 billion (RM51 billion) for disallowing removal of toxic waste harmful to its environment by an American corporation.
It is also widely known that developed nations like America and Japan are attempting the ISDS via the TPPA. ISDS is under a provision under the Investment Chapter which essentially will allow any corporation to take the Malaysian government to court for claims of damages or loss. It was not ratified previously under existing World Trade Organisation (WTO) agreements. We can only imply with no substantial certainty that these clauses were not ratified by WTO for its potential negative impacts on some signatory countries, but there is still reason to be cautious.
On Government Procurement and Petronas Vendor Development Programme
With this chapter, all government procurement including that of the GLCs and Petronas cannot have special conditions to help local contractors in any way deemed unfair to other corporations. There is a floor threshold for this ruling; deriving from previous US FTAs, we expect it to be around RM23 million and above which probably leaves room for only the small peripheral contracts for local companies. Meanwhile, the government procurement bill is sized at RM130 billion, or 25 per cent of the Malaysian GDP.
Empirical evidence has shown that 94 per cent of the American government procurement goes to American companies (Khor, 2008) and only 6 per cent goes to over 170 companies worldwide. Such limited potential gains from what is supposed to be opening our doors to America! It is in fact our floodgate that is being opened for America. What will happen to our local contractors? And what of all those local oil and gas contractors — can even our giants like Sapura Kencana and MMHE at their nascent stages survive the competitive onslaught from developed nations? Not to mention the smaller players? Even the Petronas Vendor Development Programme and licences will witness its death.
On SMEs and Agriculture
Among other things, The TPPA aims at trade liberalisation and tariff reduction, which may cause drastic loss of jobs in many sectors. A direct impact is downward pressure on workers’ wages, expanding even further the currently large income disparity gap. Mexico serves as a good reminder; following the signing of the North American Free Trade Agreement (NAFTA) with Canada and the US, three million out of 10 million Mexicans lost their jobs.
Tariff reductions will adversely impact particularly agricultural products. Promoting efficiency and healthy competition, however noble, becomes unfair when more than 90 per cent of Malaysian companies in the agriculture sector are SMEs. They will face unfair competition from giant agricultural exporters from TPPA countries such as the US, Canada, and Japan, whose governments in the TPPA will not reduce huge subsidies to their farmers. A study by Unctad showed that subsidies reduce the price of American rice by 45 per cent below cost of production, soybean by 32 per cent and cotton by 52 per cent. A rough calculation indicates that their rice can flood the Malaysian market at as low as RM1.40/kg — what will happen to Bernas and, more importantly, local planters then?
On Intellectual Property — Medicine Patent and Copyright
The Big Pharmas will get medicine patents and obtain longer patents easily. This would also render generic medicines more difficult to, or delayed, access, such as medicines for cancer, HIV and other chronic illnesses. This will definitely affect our populace. For example, Herceptin which is used for cancer, currently costs RM8,000 per cycle and is used for 17 cycles. Treating a lung cancer patient costs an average of RM44,725 per year per patient. The chance of access to these medicines for those unable to afford these exorbitant prices becomes slimmer if generic medicines are prohibited due to an extra 20 years to patents where patent law is loosened.
Just as the TPPA’s intellectual property (IP) protection measures would make medical treatment more expensive for ordinary Malaysians, TPPA countries’ educational and research activities could also be harmed — and made more expensive — due to the more stringent copyright laws proposed. These include the “digital commons” such as the Internet-based resources. Current copyright law is proposed to be extended from 50 years to 120. That’s also 70 more years of limited accessibility to students and academia due to prohibitive prices of book and references.
On Tobacco Control and Public Health
Tobacco is not our average ordinary product — it kills at least 50 per cent of its consumers prematurely. Malaysia, along with all other TPP countries except the US, is party to the WHO Framework Convention on Tobacco Control (FCTC) which requires countries to regulate tobacco, reduce its use and withhold grant incentives to the tobacco industry. The FCTC is a binding international treaty and Malaysia has been a party; this entails the aligning of national policies with the goal of reduction in tobacco use and regulating the tobacco industry. Many provisions in various TPPA chapters contradict those in the FCTC. This alone is cause for concern considering the potential conflicts between the two in the future, and more importantly the general harm to public health of a more heavily tobacco-consuming society.
On Capital Control Capability
Another major consequence of the TPPA is restriction on our capability to enforce capital control. According to Reinhart & Roghoff (2009), periods of high international capital mobility have repeatedly produced international banking crises, not only as witnessed here at home and in the region in 1997, but also historically. When financial systems are adequately regulated, the scope for damaging financial cycles can be contained, or at least leave the economy less prone to such large cyclical swings as seen in today’s more liberalized environments. The idea is not to destruct efforts for a liberalized and efficient financial sector, nor to hinder Malaysia’s competitiveness in attracting foreign investments, but rather to cushion impacts of economic shocks to the most vulnerable Malaysian businesses and entrepreneurs. It is not archaic to take some heed from temporary capital controls measures we undertook during the Asian financial crisis. Even the IMF admits to the role that capital control played in expediting our recovery compared to that of Indonesia and Thailand.
The Trade and FDI Myth
Back to trade itself, it has always been expected that the main benefits of signing an FTA with the US will be reflected through higher gains in trade benefits. How is it then that even in the case of a relatively stronger economy such Singapore, trade deficit had only widened from US$1.4 billion in 2003, when they signed the agreement, to US$4.3 billion in 2004 and US$6.9 billion in 2006 to US$10.5 billion in 2012?! Furthermore, no evidence of increased long-term quality investments and FDI were found in bilateral trade agreements, according to a report by the United Nations on FTA impacts. While trade diversion is a valid concern, the loss of incomes and benefits from trade diversion as a result of opting out of TPPA, must be determinedly greater than the various losses and costs that the TPPA entails to the larger economy.
Protests around the world against US FTA
It is not uncommon for nations worldwide to protest against FTAs with America. In Guatemala, two died protesting, and the people of Guatemala brought the government to court, claiming that the FTA would go against at least 130 Acts in the Guatemalan constitution. In Ecuador, emergency had to be declared due to massive demonstrations. Chief negotiators in Thailand and Colombia also resigned from their positions in protest. In South Korea, a protestor burnt himself to death to show protest against an FTA that it had with the US, which only passed by Parliament after the ruling government effectively locked up the opposition.
Countries like Argentina, Bolivia, Brazil, Paraguay, Uruguay, Venezuela, South Africa, Botswana, Lesotho, Namibia and Swaziland had also previously engaged in negotiations with America for an FTA, but they were never signed.
In Malaysia, the Third World Network (TWN) and the Consumers Association of Penang (CAP) have been at the forefront of engaging with US-Malaysia FTA issues since 2008, and have continued to do so with the TPPA. Notable efforts have surfaced again lately in light of the TPPA negotiations and the leaked chapters. On June 6, 2013, MP Nurul Izzah Anwar issued a press statement questioning the secrecy of the TPPA negotiation and asked pertinent questions; whether Malaysia plans to trade its sovereignty for free trade. She continued to put pressure from Pakatan Rakyat which led to the setting up of a parliamentary caucus and more engagement from MITI.
Simultaneously, momentum continues to build up with NGOs such as Blindspot, MTEM, MAC, MTUC, GBM, IKRAM continuously engaging in forums and public awareness efforts. These efforts have no other aim than to make the public aware of the need for them to demand their engagement with the government in the negotiations. Other high-profile figures like Tun Dr Mahathir Mohamad and Datuk Liow Tiong Lai also openly expressed opposition to the TPPA, further fuelling efforts for public to engage in the issue.
Badan Bertindak Bantah TPPA (The Coalition Act against TPPA)
Badan Bertindak Bantah TPPA is a coalition of 52 non-governmental organisations and seven coalition councils formed with the aim of raising the people’s awareness with regards to TPPA in a sincere effort to ensure Malaysia gets the best out of TPPA. Our view is that the TPPA is straddled between the hopes of a relatively small circle of multinational corporations, whose commercial interests stand to benefit the most from the proposals, and the fears of civil society organisations representing the people of all 12 TPPA countries. In fact, the TPPA is neither about fair trade nor even about free trade alone, since it seeks to lock in the monopolistic position of big corporations over their industries. It is about ensuring the protection and prioritisation of corporate interests above those of public welfare, safety and the socio-economic interests of less affluent economies than the obvious economic master here, which is America.
We note that America is assisted by a force of 1,000 that form a special advisory committee, mostly represented by industry experts. We demand the same here for Malaysia. A coveted UNDP study is hardly sufficient to ensure the public that our livelihoods and that of our future generations are not under threat here. Given the track record, Malaysia is not exactly a master at negotiations, having lost Block L and M, a skewed water agreement with Singapore, Batu Puteh island and many other international disputes. Negotiators from MITI alone cannot decide the fate of future generations of Malaysia.
Ultimately, the Badan Bertindak Bantah TPPA demands for the government of Malaysia to suspend or pull out its involvement in the TPPA negotiations unless and until an impartial and comprehensive cost-and-benefit-analysis and a comparative advantage study are carried out, disclosed and publicly debated by all stakeholders in Malaysia, that the texts are examined, scrutinised and assessed by Parliament to rectify the TPPA as negotiated is indeed in Malaysia’s favour and interests, that the concerns are seen to have been incorporated into Malaysia’s positions and proposals for the TPPA; and that a popular referendum is held to determine to what extent Malaysians are in support of their government signing and ratifying the TPPA.
We demand for the government to adopt a transparent stance in this and for the voices of the various stakeholders among the people of Malaysia to be considered in this negotiation round. Or else, pull out from TPPA negotiations in an absolute manner. A textbook outline of the benefits of free trade will not suffice; the TPPA may be a free trade agreement in form, but it is an imperialistic regulatory agreement in substance.
Attention and empathy is needed from civil society itself. Academics, industry experts, practitioners and even lay people who are concerned about the future of Malaysia must search, aim to understand research, speak out and write to contribute to current efforts to demanding the best out of our negotiations. Else, we really should be bidding our farewell to America and run for the door.
* Anas Alam Faizli, an oil and gas professional, is co-founder of Blindspot and Badan Bertindak Bantah TPPA and tweets at @aafaizli