19 January 2016
Parliament Must Reject the TPPA to Protect Malaysia’s Institutions and Democratic Development
BERSIH 2.0 calls on Members of Parliament across the political spectrum to reject the Trans-Pacific Partnership Agreement and signal a clear commitment to protecting the sovereignty of Malaysia’s institutions.
On 29th and 30th August 2015, hundreds of thousands of Malaysians demanded institutional reforms to strengthen parliamentary democracy and save the economy. Yet, less than six months later, the Malaysian Government is set to sign an agreement that will dent our local economy while also having devastating effects on the ability of our public institutions to implement the demands of the rakyat.
- Undermining the democratic right of the rakyat to direct public policy.
A fundamental right of citizens in a democratic country is their active participation in decision-making through elections and engagement with elected representatives. Democracy depends on the ability of voters to hold the government accountable and for the elected government to enact policies in the interest of the people.
The Investor-State Dispute Settlement mechanism in the TPPA will challenge the very essence of these democratic processes. The very risk of being sued by Multinational Corporations has already been felt it in Malaysia as the government opted to wait on the Philip Morris vs. Australia dispute before deciding on whether it should implement plain-packaging. After the TPPA, the Malaysian government would live in fear to legislate laws in public interest and this will result in the democratic rights of the people of Malaysia to be reduced.
BERSIH 2.0 is alarmed that the Malaysian SME Association has found up to 30% of Malaysia’s SMEs might close as a result of the TPPA and job losses in TPPA countries could reach 771,000. Yet, if the Malaysian government adopts policies to correct these consequences, the rakyat will bear the cost of legal action if Malaysia is sued by a foreign corporation. Malaysians have the democratic right to determine the nation’s direction, through the ballot box, Parliament and the courts. The TPPA challenges this democratic right.
- Undermining our national sovereignty.
The TPPA clips Parliament’s wings and limits its ability to legislate. In the same manner, it puts a straitjacket on the Executive body, including States, to implement its policies. Similarly, the TPPA cages our courts and allows decisions by the highest court in Malaysia to be challenged by only private foreign corporations. Ordinary Malaysians do not have access to this right. This violates the right to equality as enshrined in our Federal Constitution as it renders Malaysians as second class to foreign entities. Not only does the TPPA remove policy-making power of elected governments, it transfers powers of Malaysia’s institutions to mediate between international corporations and the state to international arbitration courts, which lack the checks and balances against abuse of the system. Instead of taking the easy way out, BERSIH 2.0 urges the government to improve Malaysia’s local courts and tackle the allegations of corruption and bias in our legal system. Access to justice is crucial to attract local and foreign investment, and Malaysia’s judiciary should be strengthened to support this.
BERSIH 2.0 reiterates the call by the United Nations Special Rapporteur Alfred-Maurice de Zayas to abolish ISDS mechanisms in trade agreements and instead subject investment disputes to national jurisdictions.
- Lacking transparency
The TPPA negotiations have failed to live up to any standard of transparency. The text was made public on 5th November 2015 and the agreement is set to be voted on in Parliament on 26th January 2016, giving the public three months to digest 6000 pages containing more than two million words full of legal jargon and complexities. This again, goes against the recommendations of Mr. De Zayas, who argues states should ensure parliaments, national human rights institutions and ombudspersons are involved in all stages of trade agreements.
In view of this, BERSIH 2.0 supports the Anti-TPPA protest on 23rd January and urges all supporters of the Bersih 1, 2, 3 and 4 rallies to join us at Dataran Merdeka at 2pm. Malaysians must fight against any attempt, foreign or domestic, to challenge the sovereign right of the rakyat to determine our future.
The Steering Committee of Bersih 2.0 comprising of:-
Chairperson: Maria Chin Abdullah; Deputy Chairperson: Shahrul Aman Mohd Saari; Treasurer: Thomas Fann; National Representatives: Ng Geok Chee, Farhana binti Abdul Halim and Fadiah Nadwa Fikri; Vice Chairs: Ann Teo (Sarawak), Ong Lai Mun (South Peninsula), Jay Jay Denis (Central Peninsula) and Dato’ Dr Toh Kin Woon (North Peninsula).
 On 23 November 2012, Deputy Minister Datuk Rosnah Abdul Rashid Shirlin said in Parliament, “The Ministry supports the action of the Australian government in implementing the plain packaging as a move to reduce smoking there… However, we have no intention at the present moment to follow suit in view of the dispute between the Australian government and the tobacco industry at the international level.” This is an illustration of the chilling effect ISDS mechanisms can have on policy-making.
MNCs have sued governments for taking measures to curb smoking, environmental restrictions and address economic disparity. Although MNCs may not be successful in their legal cases, the costs of such lawsuits against governments can run into the hundreds of millions of ringgit. Suez successfully sued Argentina for the privatisation of its water supply and forced to pay $405 million in compensation. This was despite a potentially huge increase in water prices. Uruguay and Australia were sued by Philip Morris for their anti-smoking legislation. Germany was sued by Vattenfall for environmental restrictions on coal power plants and the decision to close nuclear power plants after the Fukushima incident. South Africa was sued by Piero Foresti for their affirmative action policy.
 In India, investment treaties were used to sue the government by the recipients of corruptly issued phone licenses after the Indian High Court cancelled the licenses.
“Investment disputes should be subject to national jurisdictions under article 14 ICCPR or settled through a special international investment court with permanent judges and appeal chambers, operating transparently under the rule of law and bound by a statute that prioritises human rights, public interest and sovereignty, and disallows one-way jurisdiction, so that not only investors but also States have standing to sue.” – De Zayas, 16 September 2015, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16461&LangID=E
“States must ensure that all trade and investment agreements – existing and future – represent the democratic will of the populations concerned. Negotiations on current drafts must not be secret or “fast-tracked”, but, on the contrary, should be accompanied by pro-active consultation and broad public participation on the basis of independent human rights, health and environmental impact assessments.States should ensure that parliaments, national human rights institutions and ombudspersons are involved in the process of elaboration, negotiation, adoption and application of trade and investment agreements.” – De Zayas, 16 September 2015, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16461&LangID=E