Malaysia's Human Rights Commission mulling investigation into human rights impact of FTAs
8 February 2012
By Fauwaz Abdul Aziz
The Human Rights Commission of Malaysia (Suhakam) is mulling over the possibility of carrying out a human rights impact assessment of the free trade agreements (FTA) that the government is currently negotiating with a number of countries, such as the European Union-Malaysia FTA and the Trans-Pacific Partnership Agreement (TPPA). The latter involves eight other nations.
This conclusion followed a meeting held on 3 February with a number of civil society organisations, including the Malaysian Trades Union Congress (MTUC), that had voiced their concerns over the trade talks and their potential impacts on workers’ rights and the right to health.
Speaking on behalf of Suhakam were commissioners Khaw Lake Tee and Muhammad Sha'ani Abdullah, who said they were aware of the concerns that had been raised over the possible impacts of the EU-Malaysia FTA and the TPPA on human rights, particularly with regard to intellectual property (IP) and the related issues of patenting and access to medicine.
“The investigating committee will be deliberating on this, and we will bring it up to the attention of the (head) commissioner (Hasmy Agam) to determine the scope of investigations as well as the contents of your memorandum,” Sha'ani told a delegation of civil society organisations led by the MTUC president Khalid Atan during the meeting at Suhakam headquarters in Kuala Lumpur.
Echoing his remarks, Khaw asked: “What are the human rights impact and what fundamental rights will be affected by both FTAs? This (proposal for an assessment) is good if Suhakam can collect all the information and bring (them) to the government.”
The EU-Malaysia FTA is entering its eighth round of negotiations. Ambassador and Head of the Delegation of the EU to Malaysia, Vincent Piket, had said in mid-January that he believes the agreement can be signed between the EU and the Malaysian government by the end of this year.
According to the media, the nine TPPA leaders – including Prime Minister Najib Razak – who met in November last year, had reportedly agreed to work to complete the main text of a pact by July 2012.
During the meeting, Khalid said that the 'optimism' expressed by government leaders over the ability to settle the broad framework of trade issues that will have momentous consequences for the ordinary citizens of Malaysia was bewildering, given the total absence of consultation with sectors of the population, particularly workers, who will bear the brunt of the costs of the FTAs.
“We [MTUC] have never been consulted on what has been happening. This is one thing that should not have happened. We should know that is going on and the implications on the people, especially workers,” said Khalid, whose organisation represents some 800,000 workers nation-wide.
The concerns of Malaysian workers are based on concrete examples and findings of adverse circumstances facing workers elsewhere in the world in countries whose governments signed onto FTAs similar to the EU-Malaysia FTA and with provisions similar to those currently under negotiation by TPPA leaders, said Khalid.
Workers’ rights: Unaddressed grievances
Khalid also raised several other substantive issues, in particular:
The reduction of import tariffs raises the real spectre of US and EU products flooding Malaysia and outcompeting local products and services. Tariffs are an important tool for developing countries such as Malaysia still seeking to develop their small- and medium-sized enterprises and industries.
If tariffs are brought down to zero percent, which the US and EU would like to see for 100 percent and 80-90 percent of their products, respectively, this will have an adverse impact on local industries and, ultimately, workers employed in them.
In the agricultural and husbandry sectors, local players will be threatened by the influx of US agricultural products which are heavily subsidised by the US government. Local rice farmers and workers, for example will be affected if US imports, which are cheaper, make a greater presence. Rice imports from the US are currently import-taxed up to 40 percent. If these taxes are done away with, local rice producers have no chance of surviving.
A similar scenario faces the local chicken industry if the EU is allowed to import their chicken products sans tariffs. Khalid raised the issue of Ghana, where local breeders' market share reduced from 95 percent to 11 percent following the huge increase of imported chicken from the EU when Ghana had to lower its chicken tariffs.
The reduction of export taxes on raw materials has implications for local industries, given the high-technology capacity and production capacity of EU countries in exporting, for instance, furniture made from Malaysian forest products. In this way, workers in the local furniture industry will face a bleak future if their companies face stiff competition from EU companies able to import raw materials cheaply and re-export finished products such as furniture to Malaysia. Malaysian furniture makers can also lose market share in the EU and third countries if it has to remove export taxes on raw materials like wood.
Opening up the services sector
In addition, Khalid asked, what will prevent the influx of EU and US service providers, which generally have greater capital and technical advantages over providers in developing countries such as Malaysia, from dominating the banking, Internet, finance, utilities and other sectors? The consolidation and merger of local banks and other domestic players in order to compete with European and US firms may lead to significant job losses.
Impact on access to affordable medicines
Speaking after Khalid, Edward Low of the Positive Malaysian Treatment Access & Advocacy Group (MTAAG+) group raised worries over intellectual property (IP) provisions in FTAs such as the EU-Malaysia FTA and TPPA. Many quarters, he said, have raised concerns about the way intellectual property provisions found in FTAs such as those signed with the US make medicines and medical treatment more expensive, thus violating the right to health.
The TRIPS+ provisions in US FTAs, in particular, may harm access to affordable medicines since these tend to prolong the patent period and limit the ability to produce the medicines' generic counterparts. Workers again will bear the brunt of the gradual restrictions and decreasing of space in which pharmaceutical companies provide cheap medicines to lower-income and vulnerable groups. People living with HIV/AIDS, cancer, diabetes and other life-threatening conditions face a stark choice between life and death in the event treatment and medicines become prohibitively more expensive due to the unavailability of cheaper generic medicines, said Low.
Protection of investors’ rights at all costs?
Member of Parliament for Klang and spokesperson of a coalition of groups against the US and EU FTAs, Charles Santiago, said FTAs with the EU and US have in general contained provisions that protect corporations and their investments but no clauses to effectively promote or even protect the welfare and interests of their employees.
There are real concerns that such agreements also lock into place legal mechanisms to prevent the formulation and legislation of policies that would protect workers if these are seen as denting the ability of foreign investors to maximise profits.
Will there be laws against minimum wage legislation? Will benefits such as 90-days maternity leave be seen as poor productivity? Will collective agreements be framed in such a way as to limit the ability of trade unions to promote the benefits and allowances of workers?
The jury is still out on these questions, especially since there are no clear assurances to prove otherwise. Recounting the suit by tobacco company Philip Morris against the government of Uruguay for its moves on cigarette packet labeling, Santiago said there is a very real possibility that the Malaysian government's constitutional mandate to put in place laws and policies to protect the public will be curtailed by fears that foreign corporate investors will sue for infringing on their ability to determine their own 'bottom line'.
Sarajun Hoda of reform movement Aliran, meanwhile, raised concerns about workers in industries where legislation may change on account of a trade agreement such as the EU-Malaysia FTA and the TPPA. Malaysia, for example, has cargo-sharing agreements with several countries whereby cargo containing Malaysian products will be transported by ships from either country. If the EU-Malaysia FTA, for example, stipulates that no such arrangements can stay in place once the trade agreement is signed, then local workers employed at ports or by local shipping companies will face the brunt of job cuts if EU corporations insist on the right to use the shipping companies from their own countries.
Potential human rights violations
Another spokesperson for the FTA coalition, Sivarajan Arumugam, summarised the requests of the delegation to Suhakam, and urged that the commission take immediate action on the matter, since statements have already been made expressing hope that both the EU-Malaysia FTA and the TPPA could be wrapped up by year-end.
He called on Sha'ani and Khaw to take cognisance of the fact that their counterparts in Thailand, the National Human Rights Commission of Thailand, had already carried out a human rights impact assessment of the (now abandoned) US-Thailand FTA and found that the FTA would violate the human rights of Thai people and affect the country's sovereignty.
According to the United Nations' Special Rapporteur on the Right to Health, access to medicines forms an indispensable part of the right to health and states have an obligation under the right to health to ensure that medicines are available and financially affordable. Developed states, meanwhile, have a responsibility to take steps towards the full realization of the right to health through international assistance and cooperation. Moreover, all UN state parties to the International Covenant on Economic, Social and Cultural Rights have a legal obligation not to interfere with the rights conferred under the Universal Declaration of Human Rights and the Covenant, including the right to health.
Many others have expressed their concerns about the way the intellectual property provisions found in US FTAs make medicines more expensive, including the World Health Assembly, WHO’s Commission on Intellectual Property Rights, Innovation and Public Health, Ministers of Health from ten Latin American countries, the Ministers of Health of the African Union, the African Union’s Ministers of Trade and the UK government’s Commission on Intellectual Property Rights. The Convention the Rights of the Child (CRC) Committee also has already asked pointed questions as to how Malaysia will ensure that FTAs do not affect the provision of generic medicines, especially for HIV/AIDS.
Given such concerns, MTAAG+'s Low appealed for Suhakam to work towards safeguarding the rights of Malaysians to life, health, affordable medicines and medical treatment, rights which he said were at risk if the EU-Malaysia FTA and TPPA were signed.
In addition to reiterating the need for Suhakam to carry out a human rights impact assessment of the FTAs, including on the right to health, Low called on Suhakam to make representation with the government to ensure that the latter does not include in any FTA an intellectual property chapter or any TRIPS+ or other provisions that will harm the health of Malaysians.
Both MTUC and MTAAG+ submitted their respective memoranda on the EU-Malaysia FTA and TPPA to Sha'ani and Khaw.