CIVIL SOCIETY DEMANDS & QUESTIONS
1) A senior official at the Ministry of International Trade and Industry updated stakeholders on the
state of negotiations up to the 18th round of talks in Kota Kinabalu. But where is MITI in this
forum? What is the point of this forum – given the many questions that the public and civil society
have about the TPPA negotiations – if MITI is not on the panel of speakers? Why are these
persons – none of whom have access to the content and substance of the proposed TPPA
provisions under negotiations – on the panel of speakers speaking on the TPPA? Is this merely a
public relations exercise on the part of MITI, while trying to escape the questions many people
have about the actual state of play at the negotiations? Why is MITI not on the forum of panellists
to answer questions?
2) Where are the other cabinet ministers in all this? MITI has told the public that of the 29 chapters
under negotiation, 14 chapters have been substantively concluded and their technical aspects
agreed upon. The ‘sensitive’ issues as well as the remaining 15 or so chapters have yet to see
substantive agreement and conclusion. This means that the matters now awaiting decision are at
the political level – the level of our decision-makers, the members of the Malaysian cabinet.
Furthermore, in addition to MITI, all of the members of the Malaysian Cabinet should be engaging
with civil society, other stakeholders, as well as the public at large, as our concerns are under their
areas of responsibility as ministers. While MITI is the coordinating ministry for the TPPA
negotiations, the voice of other ministries have been significantly missing amidst the public
debates and discussions in Malaysia over the TPPA. Eg. agriculture is among the most contentious
issues under negotiation and the fate and future of Malaysia’s 300,000 farmers and the country’s
food security and self-sufficiency are under question. Yet, civil society organisations have not
been invited or approached to consult with the Ministry of Agriculture and Agro-Based Industry.
Only a some ministries have held briefing exercises with civil society organisations on the TPPA,
but many others have noticeably absent in the discourse. Have they been adequately engaged in
the issue of the TPPA? Do they fear engaging with the public over the issues under negotiation?
They should be in front as panellists to explain to the forum audience and participants their
respective positions on TPPA: What do the ministries see as challenges at the negotiations? What
positions are we trying to defend? What proposals are we proposing at the negotiations to be
incorporated as part of the TPPA?
3) Malaysia previously had 58 redlines, which were the cause for the bilateral US-Malaysia FTA talks
to stop. Now, apparently many of these ‘redlines’ are of no hindrance. Everything seems to be all
fine and dandy and ‘all systems go’ for the TPPA. What has changed – including in Malaysia’s level
of development, economy and society – since 2007 that warranted these 58 redlines to have been
suddenly resolved and regarded as being of no problem to Malaysia anymore? Are they not
anymore relevant?
4) Given Malaysian government’s assurances that its policy-making, legislative and regulatory space
will not be constrained by exposure to international arbitration challenges, HOW and WHAT has
Malaysia proposed (or agreed to, if another country had proposed) to avoid cases such as Renco
vs Peru/Eli Lilly vs Canada/Ecuador vs Chevron/Ethyl vs Canada, etc. If such proposals have been
submitted, have these been accepted by all the other TPPA countries?
5) What has Malaysia proposed (and has it been accepted by all TPPA parties) to ensure that it will
still be able to undertake affirmative action without being exposed – as in the case of South Africa
– to ISDS challenges for violating fair and equitable treatment obligations and for discrimination
purportedly because of affirmative action in favour of a marginalised community?
still be able to undertake affirmative action without being exposed – as in the case of South Africa
– to ISDS challenges for violating fair and equitable treatment obligations and for discrimination
purportedly because of affirmative action in favour of a marginalised community?
6) Malaysia should not have to choose between its international obligations as enshrined in its other
treaties and agreements and the provisions of its free trade agreements. Leaked TPPA chapters
(and past US FTAs) show clear contradictions between the Framework Convention on Tobacco
Control (FCTC) and the TPPA. Health experts have concluded that the only sure way to safeguard
Malaysia’s current and future tobacco regulation and ability to comply with the FCTC is via a
complete tobacco carve out from whole TPPA. Since news reports indicate that the next round
could be the last round, will Malaysia table a tobacco control exception at the next round and
insist it be agreed to as a red line, as a non-negotiable position?’ Otherwise, how will Malaysia
ensure that it fulfils the obligations of that FCTC that it has ratified, given the provisions contained
in the TPPA that have been shown to treat tobacco as if it were just like any other good, and not
the destructive product that it is?
7) We call for a halt to all negotiations until all of Malaysia’s proposals and position on all the
chapters of the proposed negotiating text of the TPPA are presented to the rakyat and
Parliament. All texts, positions and information negotiated must be tabled and debated in
Parliament. In some of the other TPPA countries – where there are also shortcomings in terms of
transparency and secrecy – it has been suggested that upon conclusion of the negotiations, the
agreement is not signed until it is disclosed and debated by the public for a determined period of
time (, and a some kind of voting or referendum process is in place to determine the extent of
support for the TPPA. This should be done in Malaysia. While we are aware that trade and other
international treaties and agreements are constitutionally the jurisdiction of the Cabinet to ratify,
this is not a treaty that is confined to the traditional trade issues, but will impact broadly and
deeply on many aspects of life in Malaysia.
chapters of the proposed negotiating text of the TPPA are presented to the rakyat and
Parliament. All texts, positions and information negotiated must be tabled and debated in
Parliament. In some of the other TPPA countries – where there are also shortcomings in terms of
transparency and secrecy – it has been suggested that upon conclusion of the negotiations, the
agreement is not signed until it is disclosed and debated by the public for a determined period of
time (, and a some kind of voting or referendum process is in place to determine the extent of
support for the TPPA. This should be done in Malaysia. While we are aware that trade and other
international treaties and agreements are constitutionally the jurisdiction of the Cabinet to ratify,
this is not a treaty that is confined to the traditional trade issues, but will impact broadly and
deeply on many aspects of life in Malaysia.
8) We have yet to see a cost-benefit analysis of the TPPA. There have been calls for the report by the
United Nations Development Program to be disclosed to the public so that the public can see for
themselves what UNDP had to say about Malaysia’s participation in the TPPA talks. On 15
December 2011, MITI had promised NGOs that it would release the UNDP report. This has yet to
happen. If MITI is concerned that the UNDP report would reveal Malaysia’s negotiating positions,
then MITI should release a legally-scrubbed version of the report. Otherwise, the secrecy just
leads us to assume that the UNDP report presents Malaysia’s prospects in the TPPA as very
negative.
United Nations Development Program to be disclosed to the public so that the public can see for
themselves what UNDP had to say about Malaysia’s participation in the TPPA talks. On 15
December 2011, MITI had promised NGOs that it would release the UNDP report. This has yet to
happen. If MITI is concerned that the UNDP report would reveal Malaysia’s negotiating positions,
then MITI should release a legally-scrubbed version of the report. Otherwise, the secrecy just
leads us to assume that the UNDP report presents Malaysia’s prospects in the TPPA as very
negative.
A) Intellectual Property Rights
1. The TPPA must not contain provisions that reduce the ability of patients and government to
obtain medicines at affordable prices. It should not have any provisions that discourage or
prevent the viability and growth of production and use of generic medicines. (Patients to say
that they need access to cheaper generic medicines.)
2. We are against an IP chapter in the TPPA. If there is to be an IP chapter, it must not be TRIPSplus.
3. We are against the following US proposals that will make medicines more expensive:
4. Expansive patent protection for new forms, uses and methods of using
known medicines
5. Extension of patent protection beyond the current 20 years
6. Extension of patent protections to compensate for delays in issuing patents
7. Data exclusivity, including 12 years DE for biologics
8. Data linkage, linking intellectual property registration of drugs with approval
by the pharmaceutical authorities
9. What are the “principles” and common ground that make up the "principles paper" on
access to medicines tabled by New Zealand, Chile, Canada, Australia, Malaysia and Singapore
as an alternative to the U.S. proposal on access to medicines?
10. We are against copyright term extension.
11. What has Malaysia proposed – or agreed to – ensure its demands to provide affordable
access to education and educational materials is not hampered by proposals to increase
copyright protection, such as US proposals to
12. broaden copyright protections
13. lock in lengthy copyright terms
14. to create new rights that would limit efforts of libraries to share works with
the public or specialized populations, including students
15. to categorise libraries as an "internet service provider" (ISP) under the broad
definition proposed by the US in the TPPA and, therefore, subject them to
the ISP liability
16. We do not want Malaysia to agree to patents on plants, animals and naturally occurring
microorganisms. We do not want Malaysia to join the UPOV 1991 Convention. These would
go against our existing laws and have adverse impacts on biodiversity and farmers’ rights.
B) ISDS, financial services
1. We are of the position that Malaysia should not agree to the Investment Chapter. In case
there is to be an investment chapter, Malaysia should not agree to an investor-to-state
dispute settlement (ISDS) mechanism or provision as this makes the government vulnerable
to claims and lawsuits from foreign investors of TPP countries. In addition to promoting a
system that would allow foreign investors to skirt/ignore/override national/domestic judicial
systems, it also accords foreign investors greater rights than national/local investors. Foreign
investors should not have more rights than local/national investors.
2. Given the huge number of cases of foreign investors challenging governments over
regulation, policy or law allegedly impacting on their bottom line, how has Malaysia
proposed to safeguard public interests without exposing itself to ISDS challenges ala Philip
Morris vs Australia & Uruguay? Will it be a red line to have a health exception, for example,
that is easier to use than Article XX of the GATT to apply to the Investment Chapter?
3. If there is to be an investment chapter, there should not be a provision on “fair and equitable
treatment”, nor an expropriation provision. At the least, there should absolutely not be a
provision on expropriation that includes “indirect expropriation.”
4. The chapter should not restrict regulation of capital flow; and thus this chapter should not
require free movement of capital flows.
5. What has Malaysia proposed – or agreed to – to ensure that there are effective capital
controls exceptions, in addition to effective health and environment exceptions? How have
these proposals been received by other countries? What proposal has there been to ensure
Malaysia can resort to exceptions in order to tackle financial crises? We ask that Malaysia
makes it a red line that it must have an effective, broad enough, long enough etc capital
control exception (eg to allow the kind used by Malaysia in 1997).
6. The financial services chapter should not require Malaysia to liberalise its financial services or
bind its level of financial openness.
7. It should not in any way reduce the ability or policy space of Malaysia to regulate the
financial sector, especially for the purpose of financial stability.
8. Malaysia should not be prevented from having maximum policy space to introduce or
strengthen capital controls over the inflow and outflow of funds.
9. The chapter should not require Malaysia to open up to the establishment or spread of new
financial instruments, especially introduced by foreign institutions, since the risks of this are
little known.
C) Labour & Environment
1. Higher medicine costs resulting from TRIPS+ provisions affecting access to medicines means
it is bad for workers
2. What has Malaysia proposed/agreed to to ensure that there is an effective labour exception
to the Investment Chapter and/or to ISDS provisions? If there is an investment chapter with
ISDS, there must be a labour exception
3. What has Malaysia proposed to ensure that any action taken to promote/protect workers –
such as a minimum wage law – is not shot down or challenged by foreign investors, such as
post-Arab Spring Egypt was challenged by foreign investors for its minimum wage law
through a bilateral investment treaty it had signed with another trade partner?
4. Given that other chapters in TPPA harm the environment more than environment chapter is
able to protect, we are of the position that Malaysia should not agree to the Investment
chapter and to all TRIPS+ provisions.
5. What has Malaysia proposed/agreed to to ensure that there is an effective environment
exception to the Investment Chapter and/or to ISDS provisions?
6. We do not want Malaysia to agree to patents on plants, animals and naturally occurring
microorganisms. We do not want Malaysia to join the UPOV 1991 Convention. These would
go against our existing laws and have adverse impacts on biodiversity and farmers’ rights.
7. There should not be any provisions that change our existing laws (i.e. Biosafety Act 2007 and
Food (Amendment) Regulations 2010) requiring the identification and labelling of genetically
modified organisms (GMOs) and products of such organisms, including GM food.
D) Bumipteras & SOEs
1. Highlight case of South Africa in relation to its BEE affirmative action policies – possible
implications for Malaysia’s Article 153
2. Will Malaysia exclude rice from the negotiations? Many of our rice farmers are Bumiputera
and will be adversely affected if the tarriffs are lowered. The existing tarriffs on rice should
not be lowered at all.
3. The TPP should not reduce the ability of government to regulate halal products. Therefore
there should be a carve out (exception) from the TPP for regulations on halal products.
4. There should not be any provisions or section on state owned enterprises, as these would
restrict their operations or viability.
5. Questions have arisen regarding the status of SOEs and definition of SOE in the TPPA. We
have SOEs that are have both regulatory and non-regulatory (e.g. commercial) functions. For
example, Petronas is a an SOE and a SCE, a regulator as well as a commercial enterprise. How
has Malaysia proposed to resolve that issue?
6. Our SOEs play a socio-economic role, such as to promote Bumiputera business welfare and
capacity. But Petronas’ activities may be seen as violating obligations on national
treatment/non-discrimination because of its assistance and treatment for Bumiputera and
Malaysian supliers. What has Malaysia proposed/agreed to to resolve this?
7. Non-commercial assistance – this will cause a lot of inconvenience to ensure other
companies are satisfied that they are not discriminated against. It will also affect Malaysia’s
ability to provide such assistance
8. What has Malaysia proposed/agreed to to ensure that disciplines on our SOEs do not harm
them/adversely affect their role as public institutions within the national economy?
E) Student job opportunities
1. Given the demands to impose a yarn forward rule, current average tariffs, ban on export
taxes on products to other TPPA countries, there will be job losses in downstream processing
industries, eg palm oil, furniture, steel, etc).
2. Stronger copyright laws will also lead to students being on the losing end of TPPA as it will
affect access to knowledge.
3. Will we have future jobs if our industries, agriculture sector, services are adversely affected
by premature liberalization?
F) SMEs, regulatory coherence, cross cutting issues
1. There are dangers for SMEs in the various chapters: goods, services and investment
(increased competition); IP: higher input costs; Government Procurement and SOE
chapter/section will lead to reduced demand due to more competition.
2. Malaysia has proposed an SME carveout for the GP chapter, we would like this to also be
exteneded to the chapters on goods, services, investment, intellectual property chapters,
etc.
1. The TPPA must not contain provisions that reduce the ability of patients and government to
obtain medicines at affordable prices. It should not have any provisions that discourage or
prevent the viability and growth of production and use of generic medicines. (Patients to say
that they need access to cheaper generic medicines.)
2. We are against an IP chapter in the TPPA. If there is to be an IP chapter, it must not be TRIPSplus.
3. We are against the following US proposals that will make medicines more expensive:
4. Expansive patent protection for new forms, uses and methods of using
known medicines
5. Extension of patent protection beyond the current 20 years
6. Extension of patent protections to compensate for delays in issuing patents
7. Data exclusivity, including 12 years DE for biologics
8. Data linkage, linking intellectual property registration of drugs with approval
by the pharmaceutical authorities
9. What are the “principles” and common ground that make up the "principles paper" on
access to medicines tabled by New Zealand, Chile, Canada, Australia, Malaysia and Singapore
as an alternative to the U.S. proposal on access to medicines?
10. We are against copyright term extension.
11. What has Malaysia proposed – or agreed to – ensure its demands to provide affordable
access to education and educational materials is not hampered by proposals to increase
copyright protection, such as US proposals to
12. broaden copyright protections
13. lock in lengthy copyright terms
14. to create new rights that would limit efforts of libraries to share works with
the public or specialized populations, including students
15. to categorise libraries as an "internet service provider" (ISP) under the broad
definition proposed by the US in the TPPA and, therefore, subject them to
the ISP liability
16. We do not want Malaysia to agree to patents on plants, animals and naturally occurring
microorganisms. We do not want Malaysia to join the UPOV 1991 Convention. These would
go against our existing laws and have adverse impacts on biodiversity and farmers’ rights.
B) ISDS, financial services
1. We are of the position that Malaysia should not agree to the Investment Chapter. In case
there is to be an investment chapter, Malaysia should not agree to an investor-to-state
dispute settlement (ISDS) mechanism or provision as this makes the government vulnerable
to claims and lawsuits from foreign investors of TPP countries. In addition to promoting a
system that would allow foreign investors to skirt/ignore/override national/domestic judicial
systems, it also accords foreign investors greater rights than national/local investors. Foreign
investors should not have more rights than local/national investors.
2. Given the huge number of cases of foreign investors challenging governments over
regulation, policy or law allegedly impacting on their bottom line, how has Malaysia
proposed to safeguard public interests without exposing itself to ISDS challenges ala Philip
Morris vs Australia & Uruguay? Will it be a red line to have a health exception, for example,
that is easier to use than Article XX of the GATT to apply to the Investment Chapter?
3. If there is to be an investment chapter, there should not be a provision on “fair and equitable
treatment”, nor an expropriation provision. At the least, there should absolutely not be a
provision on expropriation that includes “indirect expropriation.”
4. The chapter should not restrict regulation of capital flow; and thus this chapter should not
require free movement of capital flows.
5. What has Malaysia proposed – or agreed to – to ensure that there are effective capital
controls exceptions, in addition to effective health and environment exceptions? How have
these proposals been received by other countries? What proposal has there been to ensure
Malaysia can resort to exceptions in order to tackle financial crises? We ask that Malaysia
makes it a red line that it must have an effective, broad enough, long enough etc capital
control exception (eg to allow the kind used by Malaysia in 1997).
6. The financial services chapter should not require Malaysia to liberalise its financial services or
bind its level of financial openness.
7. It should not in any way reduce the ability or policy space of Malaysia to regulate the
financial sector, especially for the purpose of financial stability.
8. Malaysia should not be prevented from having maximum policy space to introduce or
strengthen capital controls over the inflow and outflow of funds.
9. The chapter should not require Malaysia to open up to the establishment or spread of new
financial instruments, especially introduced by foreign institutions, since the risks of this are
little known.
C) Labour & Environment
1. Higher medicine costs resulting from TRIPS+ provisions affecting access to medicines means
it is bad for workers
2. What has Malaysia proposed/agreed to to ensure that there is an effective labour exception
to the Investment Chapter and/or to ISDS provisions? If there is an investment chapter with
ISDS, there must be a labour exception
3. What has Malaysia proposed to ensure that any action taken to promote/protect workers –
such as a minimum wage law – is not shot down or challenged by foreign investors, such as
post-Arab Spring Egypt was challenged by foreign investors for its minimum wage law
through a bilateral investment treaty it had signed with another trade partner?
4. Given that other chapters in TPPA harm the environment more than environment chapter is
able to protect, we are of the position that Malaysia should not agree to the Investment
chapter and to all TRIPS+ provisions.
5. What has Malaysia proposed/agreed to to ensure that there is an effective environment
exception to the Investment Chapter and/or to ISDS provisions?
6. We do not want Malaysia to agree to patents on plants, animals and naturally occurring
microorganisms. We do not want Malaysia to join the UPOV 1991 Convention. These would
go against our existing laws and have adverse impacts on biodiversity and farmers’ rights.
7. There should not be any provisions that change our existing laws (i.e. Biosafety Act 2007 and
Food (Amendment) Regulations 2010) requiring the identification and labelling of genetically
modified organisms (GMOs) and products of such organisms, including GM food.
D) Bumipteras & SOEs
1. Highlight case of South Africa in relation to its BEE affirmative action policies – possible
implications for Malaysia’s Article 153
2. Will Malaysia exclude rice from the negotiations? Many of our rice farmers are Bumiputera
and will be adversely affected if the tarriffs are lowered. The existing tarriffs on rice should
not be lowered at all.
3. The TPP should not reduce the ability of government to regulate halal products. Therefore
there should be a carve out (exception) from the TPP for regulations on halal products.
4. There should not be any provisions or section on state owned enterprises, as these would
restrict their operations or viability.
5. Questions have arisen regarding the status of SOEs and definition of SOE in the TPPA. We
have SOEs that are have both regulatory and non-regulatory (e.g. commercial) functions. For
example, Petronas is a an SOE and a SCE, a regulator as well as a commercial enterprise. How
has Malaysia proposed to resolve that issue?
6. Our SOEs play a socio-economic role, such as to promote Bumiputera business welfare and
capacity. But Petronas’ activities may be seen as violating obligations on national
treatment/non-discrimination because of its assistance and treatment for Bumiputera and
Malaysian supliers. What has Malaysia proposed/agreed to to resolve this?
7. Non-commercial assistance – this will cause a lot of inconvenience to ensure other
companies are satisfied that they are not discriminated against. It will also affect Malaysia’s
ability to provide such assistance
8. What has Malaysia proposed/agreed to to ensure that disciplines on our SOEs do not harm
them/adversely affect their role as public institutions within the national economy?
E) Student job opportunities
1. Given the demands to impose a yarn forward rule, current average tariffs, ban on export
taxes on products to other TPPA countries, there will be job losses in downstream processing
industries, eg palm oil, furniture, steel, etc).
2. Stronger copyright laws will also lead to students being on the losing end of TPPA as it will
affect access to knowledge.
3. Will we have future jobs if our industries, agriculture sector, services are adversely affected
by premature liberalization?
F) SMEs, regulatory coherence, cross cutting issues
1. There are dangers for SMEs in the various chapters: goods, services and investment
(increased competition); IP: higher input costs; Government Procurement and SOE
chapter/section will lead to reduced demand due to more competition.
2. Malaysia has proposed an SME carveout for the GP chapter, we would like this to also be
exteneded to the chapters on goods, services, investment, intellectual property chapters,
etc.
