CAP Objects to Secrecy and Non-Disclosure Clause in TPPA Town Hall and Lab Sessions

The Consumers’ Association of Penang (CAP) is perturbed that those attending the lab sessions relating to the Trans-Pacific Partnership Agreement (TPPA) are required to sign the Official Secrets Act (OSA) Declaration and Non-Disclosure Agreement (NDA).

The Ministry of International Trade and Industry had invited CAP to participate in a town hall and lab session on the TPP held on 2nd and 3rd April 2015. The invitation letter states that these sessions are conducted to improve engagement and get inputs from various parties and that this process is consistent with the Governments’ aspiration to improve the level of transparency and accountability in negotiating the TPP agreement.

Hence it is ironic that the participants are then required to sign the OSA Declaration and the NDA. CAP had earlier turned down an invitation by MITI in December 2014 to be a cleared advisor because we were required to observe confidentiality in whatever advice and suggestion we give. In our response to that invitation, CAP had stated that as a civil society organization committed to being the conscience of the people and the nation, there would be a conflict of interest if we become a cleared advisor sworn to secrecy.

In the same note, we strongly disapprove of the OSA and NDA being used in the lab sessions to stifle participants. Since the beginning of the TPP negotiations CAP has been calling for public disclosure of the text of the TPP negotiations. Thus we would be contradicting ourselves if we are required to sign the OSA Declaration and NDA. We informed MITI that we will not subject ourselves to subjugation of a treaty that we view would enslave the rakyat and concede to the demands of corporations and other nations.

Our stand on the TPP negotiations has been that Malaysia should withdraw and not sign the TPPA. CAP’s latest appeal to the government is for the following reasons:

— Multi-National Corporations (MNCs) are the initiators and drivers of the negotiations for the TPPA. The text of the agreement was prepared by their legal experts, and kept as a secret away from public view for fear of opposition to it. Even United States Senator Sherrod Brown criticised it saying: “This continues the great American tradition of corporations writing trade agreements, sharing them with almost nobody, so often at the expense of consumers, public health and workers.”

— The twin aims of the TPPA are facilitating the penetration of our markets by MNCs to the detriment of our economic and social interests and the promotion of U.S. geo-political interests, e.g. containment of China.

— It has not been convincingly demonstrated to the public what benefits we would derive from an agreement that would have serious implications on public health, environment, socio-economic policies and our sovereignty.

— The TPPA entitles foreign corporate investors to sue our government for actions that undermine their “expectations” and hurt their business. Business “expectations” should be no concern of the state but of the risk-taking investors. If measures taken by the state to protect and promote the interest and needs of its people affect the “expected” profits of the investors why must the people be made to compensate the unrealised losses? In free market ideology, businesses are supposed to shoulder their risks. Local businesses cope with such risks without government assistance. Why must large foreign corporations be insulated against business risks at our cost?

— Some future policy/legislation of the government to protect the environment, improve healthcare or promote social justice may be challenged by MNCs and we may have to pay billions of dollars in damages and the policy/law nullified. Why must we take this risk?

— On the implication of state responsibility for corporate losses, U.S. Senator Charles E. Schumer commented: “This is really troubling. It seems to indicate that savvy, deep pocketed foreign conglomerates could challenge a broad range of laws we pass at every level of government, …”

— The Investor-State Dispute Settlement (ISDS) provision allow foreign corporations to bring claims before private arbitrators, not local courts, against the state for alleged adverse impacts on their investments due to government actions. The arbitrators are not independent but rotate between being arbitrators and representing big corporations in their claims. More than 100 legal scholars, in a letter to the U.S Congress stated: “ISDS threatens domestic sovereignty by empowering foreign corporations to bypass domestic court systems and privately enforce terms of a trade agreement. It weakens the rule of law by removing the procedural protection of the justice system and using an unaccountable, unreviewable system of adjudication.

— The effect of TPPA investor protection provisions is to limit the power of Parliament to pass legislation in the interest of our people and protection of the environment because of the need to make it TPPA compliant. It would be unconstitutional to allow ISDS tribunals to override laws enacted by Parliament. It amounts to handing over a legislative veto power over laws enacted by Parliament to ISDS.

There have been countless objections from citizens of the TPP negotiating nations as a trade agreement such as the TPP deploys the power of the state in corporate, rather than public, interests. If the TPP was such a good deal for all, the negotiating governments should have the courage to show the people exactly what is in this deal, instead of keeping the content of the TPP a secret.

In conclusion, the TPPA is a disastrous trade agreement designed to protect the interests of the large corporations at the expense of workers, consumers, the environment and the foundations of our democracy. The TPPA would negatively impact millions of people especially the poor and marginalised in all the TPP negotiating countries. Thus we urge Malaysia not to sign on to this agreement and stop the secrecy.

Press Statement, 2 April 2015