When this TPPA Motion came up, it was already 6.30pm at the Malaysian Bar AGM which started at 10.30am(14/3/2015), and had proceeded without breaks. After the AGM, there was to be the Bar Council meeting which will elect the new President and office bearers, and I believe the Annual Dinner was also that night. In short, people were tired and this was a motion that required some explanation being about a subject matter which many may not really be familiar with.
I was asked to withdraw the Motion, and I did so after getting the assurance that objects, concerns and principles contained in this motion will be considered by the Bar Council and will be reflected in its actions/responses concerning the TPPA, ISDS and matters related. Wish we had more time to have a real debate and discussion, which was been followed by a vote - which I am confident would result in this motion being adopted.
When the next AGM comes up in March 2016, it may be too late... and Malaysia may have already signed this agreement - and if there is the ISDS provision, it will have serious implication for all in Malaysia - Malaysia may no more increase minimum wages for fear of being 'sued' by some foreign investor for millions...
The said motion that I submitted on 4/3/2015 is as follows, and will hopefully now help us all get a better understanding of the TPPA and the ISDS
See also:-
Resolution for Provision of Legal Aid for Workers adopted in Malaysian Bar AGM
Motion On TPPA And 'Investor-State Dispute
Settlement'(ISDS) Provisions
Whereas:
1)
It is
disturbing that Malaysia may be signing Trans-Pacific
Partnership Agreement (TPPA), whereby the contents of the said Agreement have
been kept secret from Malaysians, and even Parliament. In a democracy,
transparency is fundamental, and the current government should not be signing
any such agreements like the TPPA, Bilateral Investment Treaties
(BITs) or other trade agreements without first fully disclosing
the contents to all Malaysians, for the purpose of getting public feedback, inputs
and even objections. It is unconscionable for current governments to sign ‘secret’
agreements that will in effect bind future governments and the people of
Malaysia for many years to come.
2)
It has been revealed that the TPPA
does have a section or chapter, commonly known as 'investor-state dispute
settlement'(ISDS) which empowers the foreign investor, which includes the
shareholder, to sue or commence legal action against Malaysia, and disturbingly
the dispute will not be before Malaysian courts, but some foreign court or
tribunal.
3)
The
ISDS clauses will open up a government to legal action by the foreign investor
if the government introduces or changes a law or policy that will result in
businesses having to expend more monies, or has the effect of decreasing
profits.
4)
This
will have the effect of deterring governments in putting in place laws that may
be necessary for improving the welfare and wellbeing of persons in Malaysia.
This would include laws or policies that
may require businesses to expend monies or adhere to certain requirements to
improve, amongst others, environmental protection, improve occupational safety
and health standards, better rights for workers, and even matters concerning
public health and safety. Potential investors' suits and a potential award may
cause governments to abandon necessary public measures for improving life in
Malaysia.
5)
The above concerns are very real, as
seen by actions that have already been undertaken in reliance of such ISDS provisions:-
a) Veolia
group, a French multinational, is suing the Egyptian government because of a
rise in the monthly minimum wage. The company is using the ISDS provisions in
an investment treaty between France and Egypt.
b) The
Canadian government banned a gasoline additive on environmental and public
health grounds. Ethyl Corporation took action against it, and after the ISDS tribunal decided that it had
jurisdiction over the claim, Canada settled and agreed to remove the ban,
declare publicly that the gasoline additive was not an environmental or a
health risk, and pay $19 million in compensation to the US firm.
c)
The
tobacco company Philip Morris did sue Uruguay for requiring cigarette packs to display graphic
health warnings, and also Australia for requiring plain packaging for its
cigarettes.
d) Indonesian government was sued for $2
billion by a London-based mining company Churchill, which claims its right to
mine in Busang (East Kalimantan) was violated when the local government revoked
the concession rights held by a local company in which it had invested.
6) The ISDS is also be discriminatory – as it is a remedy only available
to foreign investors coming from certain nations, and not all. The local
investor in Malaysian companies will not have this right. The ISDS provisions
may also be abused by foreign investors investing just at the point before some
new law or policy is being formulated or comes into effect.
7)
The Trans-Pacific Partnership
Agreement (TPPA) will make medicine more expensive in signatory nations
including Malaysia, according to a study by the University of New South Wales.
8)
TPPA will also impact on the
exercise of freedom of expression and opinions especially internet freedom by requiring Internet service providers
to police our online activities.
9)
Signing such agreements with such
provisions is also a vote of no confidence on our judiciary and the
administration of justice in Malaysia, and will be to the detriment of people
in Malaysia generally.
10) Cost Benefit Analysis(CBA) done by certain
entities, without the full disclosure and participation of Malaysians,
including people’s elected representatives in Parliament, is meaningless and
results of such CBAs is questionable.
We hereby resolve:
(1)
That Malaysia immediately suspend
the signing of the Trans-Pacific Partnership Agreement (TPPA), Bilateral Investment Treaties (BITs) or other trade
agreements until the said contents are disclosed to all Malaysians for the
purposes of getting feedback, discussions and approval. At the very least in a
parliamentary democracy, approval must be sought and obtained in Parliament
before the government signs any agreements that will bind and impact future
governments and the people of Malaysia for many years to come.
(2)
That Malaysia do
not sign any agreements which have 'investor-state dispute settlement'(ISDS)
clauses and provisions, which amongst others, may open the door to the
possibility of vesting foreign investors with rights to take our government to
court in some foreign arbitration tribunals, when our government imposes new
laws for improving the wellbeing and welfare for the people in Malaysia, for
public health reasons, for safeguarding our environment, for improving
occupational health and safety standards at the workplace, for according
workers better rights including higher rates of minimum wages.
(3)
That Malaysia do not sacrifice
its sovereignty, by signing agreements that will allow foreign investors and
businesses to take legal action against Malaysia in any foreign court or
tribunal. Any such actions, that can be taken against Malaysia must be in
Malaysian courts.
(4)
That Malaysia do not sign
inter-State agreements like the TPPA that, amongst others, will cause an
increase of the cost of medicines and healthcare, impact on the freedom of
expression and information, and privacy of Malaysians, that are discriminatory
in nature, or will impact the cost of living.
(5)
That the Malaysian Bar do the
needful to educate the Malaysian public of the possible dangers and risk of the
TPPA and such agreements, and the need for transparency and accountability
before any government binds Malaysia, its peoples and future governments to
such agreements.
(6)
That the Malaysian Bar do the
needful to actively put into effect the essence and principles as stated in
this Resolution for the wellbeing and welfare of people in Malaysia.
Charles Hector Fernandez
BC/C/712
4th March 2015
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