Open letter from Malaysian NGOs to MITI on the Trans-Pacific Partnership Agreement (TPPA)

Y.B. Dato’ Sri Mustapa Mohamed
Minister of International Trade and Industry
Ministry of International Trade and Industry
15th Floor, Block 10, Government Offices Complex, Jalan Duta,
50622 Kuala Lumpur

21 May, 2013

Yang Berhormat,

Open letter from Malaysian NGOs on the Trans-Pacific Partnership Agreement (TPPA)

We refer to the statement issued by the Ministry of International Trade and Industry (MITI) to the press on 15 May, 2013, following the remarks made a day earlier by the chief executive officer of the Malay Economic Action Council (Majlis Tindakan Ekonomi Melayu), Mohd Nizam Mashar, in relation to the Trans-Pacific Partnership Agreement (TPPA).

MITI made three main points in response to the issues raised by Mohd Nizam.

1. MITI describes the TPPA as an ambitious deal that would bring into one free trade agreement (FTA) the economies of the 12 countries concerned. It also puts numbers to match its assertions on the improved trade performance between Malaysia and about a dozen other countries.

MITI also goes on to assert that the TPPA will help bring about a more competitive business environment and economy that is also more equitable, transparent  while turning Malaysia into a major production and investment hub.

Our reply: The TPPA is not needed to accomplish all the above, since steps can already be taken by the Malaysian government to bring about such goals without binding the country to international legal obligations and, thereby, exposing her to international legal suits, challenges, or even trade sanctions on Malaysian goods, services and investments overseas, in the event that the Malaysian government is seen to have not fulfilled its obligations to a foreign investor as the latter expects.  By making such legal commitments under the TPPA, the government will lose its ‘policy space’ and flexibility in decision-making, giving rise to irreversible consequences which can be detrimental.

2. Addressing the concerns raised regarding the fate of small and medium enterprises in the face of foreign competition and a tougher playing field, MITI said the TPPA has a specific chapter providing the steps to be taken by TPPA countries to integrate SMEs into the global supply chain.

Our reply: We understand that the SME chapter is only one out of almost 30 chapters being proposed for the TPPA. We believe that SMEs will be directly affected by legal obligations biased in favour of foreign multinationals found in many other chapters. Yet, we have been told that the SME chapter was concluded by TPPA negotiators some time ago. So, we do not have much confidence that the SME chapter would promote and protect domestic SMEs when such provisions – if they do in fact promote or protect SMEs – can be negated by others detrimental to SMEs, such as in the intellectual property chapter, the government procurement chapter, the competition chapter, etc.

3. With regard to MITI’s assertion that information on the status of the negotiations is always updated on the ministry’s web portal, the web page referred to only contains information on the timings and topics of the various rounds of negotiations that have been held.    We have not been able to find any information regarding the actual substance of the negotiations or other discussions that have been held that would  address, our concerns.

MITI admits that the government “is unable to share with stakeholders the text of the agreement as the Government is bound by ‘confidentiality agreement’.” MITI then asserts that it has held consultations with stakeholders, including government ministries, related agencies, local industries and some NGOs, including some who are signatories to this letter.

Our reply: The confidentiality claimed over the negotiation text lies at the heart of the problem. At previous consultations, NGOs were given a chance to air their concerns, and were given assurances by MITI that our concerns will be addressed. However, if we cannot see the text, then how are we to accept assurances that the public health and the environment, for example, will be safeguarded when similar provisions in other US FTAs signed with other countries have caused the deterioration of public health and environmental standards? How are we to accept assurances that the fate of thousands, if not millions, of Malaysians is in safe hands when discussions, deals and deliberations are held behind closed doors – off limits to the public and civil society organisations, and even parliamentarians? At the same time, the playing field is clearly not level, when US private corporations through their lawyers DO have access (and can propose texts) to the negotiations.

We have consistentlly called for the text to be made public, so that the actual state of the proposals being discussed for eventual incorporation into the TPPA could be seen. Secrecy as we see in the TPPA is unacceptable.

Even if were to accept in good faith the assurances by ministry officials that our interests and concerns are protected by the inclusion of provisions that address the flaws or loopholes of previous FTAs, ministry officials refuse to state how such interests and concerns will be protected. By what means? With what provisions or mechanisms? Mere assurances are not enough, given our experience with previous FTAs. The devil is in the detail, and so long as actual information on how our concerns are addressed in the actual negotiations via the text is not provided, the concerns will remain.

We have also made it clear that our participation in any consultations does not mean we have agreed to the TPPA. In addition, we have said that  we do not represent all NGOs, since there clearly were many other NGOs that were not present at the consultations and with  whom MITI should also have engaged.

Lastly, with only two rounds (at most) remaining before the most ambitious FTA in history is to be signed that sets the “gold standard” for the 21st century, we question what MITI can accomplish by “devising a comprehensive consultation process with all stakeholders… that will begin soon” at this point in time. Such consultations should have been held at least three years ago – if not earlier – when Malaysia first announced it would participate in the TPPA.

Given all the many concerns we have repeatedly raised on the TPPA, including the above, we see no other way but for our government to withdraw from further participating in the TPPA negotiations in interest of the public at large.

S M Mohamed Idris
President, CAP & SAM

On behalf of:

1. Consumers Association of Penang
2. EcoKnights
3. Jaringan Rakyat Tertindas
4. Malaysian Nature Society
5. Positive Malaysian Treatment Access and Advocacy Group
6. Malaysian Positive Network
7. PT Foundation
8. Sahabat Alam Malaysia
9. Third World Network
10. WWF-Malaysia