Malaysia has since October 2010 been negotiating a Trans-Pacific Partnership Agreement (TPP) with the United States and seven other countries involved in the negotiations including Australia, Brunei, Chile, New Zealand, Peru, Singapore and Vietnam.
On 13 June, the proposed investment chapter for the TPP was leaked and posted online by the Washington-based non-governmental organisation Public Citizen.
After perusing the leaked document, the Consumers Association of Penang (CAP) feels compelled to express its grave concern at some of its provisions.
The leaked text shows that Malaysia has agreed to provisions that give extended rights and privileges to foreign investors and private corporations and limit the power of our government to regulate how those firms operate within our borders. This is tantamount to placing foreign corporate interests above the welfare and interests of our own citizens.
The leaked investment chapter confirms the fears expressed by CAP in a letter to the press in December 2011 that the TPP would create a two-track legal system that would empower foreign firms to skirt our domestic courts and directly sue our government in foreign arbitration tribunals for taxpayer-funded monetary compensation if they deem that the domestic financial, health, environmental, land use and other laws put in place to regulate their investments have harmed their investments.
This means the Malaysian government has agreed that if an investor feels his/her rights have been violated by a law, regulation, policy or programme — even if it were put in place in the interests and welfare of the citizenry — the investor can sue the Malaysian government at an international tribunal, for unlimited monetary compensation and interest.
As revealed in Section B of the leaked text, furthermore, these tribunals would not meet standards of transparency, consistency or due process common to any of the TPP countries’ domestic legal systems or provide fair, independent or balanced venues for resolving disputes between sovereign nations and private investors. The tribunals would be staffed by private sector lawyers that rotate between acting as ‘judges’ and as advocates for the investors suing the governments.
It is instructive to note that while all the other TPP countries agreed to this oppressive provision, Australia refused to do so. If the Australian government could reject this provision, why could not the Malaysian government have done the same?
The leaked investment chapter reveals that Malaysia has already agreed to give foreign companies a number of extensive rights including:
A broad definition of ‘investment’ that includes protecting: existing investments in Malaysia, shares and derivatives, public-private partnerships, intellectual property rights, mining and manufacturing licences and permits and expected future profits of other TPP investors.
Abiding by the principle of ‘fair and equitable treatment’ (FET), which has been interpreted by these international tribunals to mean that regulations cannot be changed and no new regulations can be imposed on investors from TPP countries for as long as they are in Malaysia. This would greatly restrict Malaysia’s ability to continue developing its regulations including in response to new threats such as climate change and financial crises or to new information (on, for example, the toxicity of a chemical or food ingredient).
An ‘expropriation’ provision which requires governments to give fair market value compensation and interest for any government actions that have been found to reduce the value of the investment from other TPP countries, including reducing the investor’s profits.
A ‘Most-Favoured Nation’ provision that requires Malaysia to provide the protection it has given foreign investors in other treaties to TPP investors as well, unless TPP governments including the US agree to allow it as an exception. This would circumvent any exceptions that are put into the TPP by allowing other treaties which do not have these exceptions to override the TPP.
Binding state and local governments and authorities to the commitments made by the Malaysian government.
The above means, for example, that in the area of tobacco control (an area where CAP has been active for many years), tobacco companies could challenge Malaysia’s regulations (as they have already been doing, using equivalent treaty provisions to sue Uruguay and Australia for their tobacco control measures). Other than the damages an international arbitration panel may award against Malaysia that may amount to hundreds of millions of dollars, even just the prospect of such suits would have a ‘chilling effect’ on regulations including tobacco control measures seeking to regulate the production, distribution, marketing or consumption of tobacco- and tobacco-linked products.
Given all the above, CAP calls for:
The TPP negotiations to be suspended until the texts and all relevant documents have been disclosed for public scrutiny by the Malaysian public, and a publicly-disclosed and comprehensive cost-and-benefit analysis has been carried out over the areas covered by the TPP.
The investment chapter to be removed from the TPP.
However, if the government persists in negotiating an investment chapter in the TPP, CAP calls on the government to:
Insist on being exempted from investor-to-state dispute settlement, as Australia has in the TPP
Not agree to the investment chapter until the issues above have been effectively fixed in the main text of the investment chapter.
The Ministry of International Trade and Industry to clarify whether it is asking for:
restrictions on performance requirements to apply to all investments, even those by non-TPP countries
restrictions on performance requirements to extend to services; and
restrictions on technology transfer requirements
A nation that cannot uphold its law cannot preserve its order. When Anderson was smuggled out to safety, the authority of state abandoned the responsibility of state. Excuses, evasions and lies have shifted over 26 years; this central truth has not.
It is odd that the government should have chosen law and order as its final alibi after some exhausting self-laceration in its search for a credible explanation for the escape of Union Carbide’s Warren Anderson on December 7, 1984.
Why do we say “law and order” rather than “order and law”? Simple. Law comes before order. Law defines the nature of order. Law is the difference between civilization and chaos. Law is evolutionary: the edicts of tribes, chiefs and dynasties lifted human societies from scattered peril to structured coexistence. The laws of democracy have vaulted us to the acme of social cohesion, for they eliminated arbitrary diktat and introduced collective will. The divine right of kings is dead; it has been reborn as the secular right of an elected Parliament.
A nation that cannot uphold its law cannot preserve its order. When Anderson was smuggled out to safety, the authority of state abandoned the responsibility of state. Excuses, evasions and lies have shifted over 26 years; this central truth has not.
Unsurprisingly, Anderson sneered at the establishment that knelt before him; contempt is the umbilical chord of the colonial, or neo-colonial, relationship. The crux of the Bhopal tragedy is summed up in a few sentences uttered by Anderson as he was escorted out of India on December 7, 1984: “House arrest or no house arrest, or bail or no bail, I am free to go home…There is a law of the United States… India, bye bye, thank you.”
‘House or no house arrest’: he could not care a damn about those funny-looking policemen (in lathis and khaki shorts?) who had dared to arrest a pillar of the American corporate establishment. ‘Bail or no bail’: what was a rotten piece of paper signed in an Indian court worth to a lord of Wall Street? Not even the decency of silence. Anderson was publicly, even proudly, contemptuous of those who did not have the courage to interrupt his freedom for a mere industrial disaster in which a few thousand semi-slave Indians had been gassed to death within hours and thousands more would die over years.
‘There is a law in the United States’: Anderson had twigged on to a basic truth that the law is a malleable reality for those who are “well-connected” in India. How could Anderson have respect for India’s law when those entrusted with its sanctity had defiled it? Anderson laughed at Indian law, and jeered at the Indian state. Compare this with the fact that his company was scared witless at the prospect of an American trial. Carbide fought hard, and successfully, with predictable help from a comprador Indian establishment, to shift the trial from America to India. Their subsequent collusion with Indian courts touched Supreme heights.
British Petroleum knew the perils of entanglement with American justice and shelled out within six weeks of the Gulf of Mexico oil spill. Big Oil (which is far bigger than Big Chemical) has been forced to put aside $20 billion for the repair of the environment after an ecological disaster that has not killed a single innocent human being. Technically, BP need not have paid more than $75 million. The first demand on Carbide, 26 years ago was for $15 billion. It has paid the equivalent of just one billion dollars (at today’s prices) for the death of nearly 20,000 people and the horrific maiming of over 100,000.
Barack Obama slipped on a bit of oil himself when the spill began. He thought playing to the gallery would subdue the clamour, while BP contained the damage. He upped the ante (it became an environmental 9/11) even while his National Guard helped BP by hiding affected bird-life from media cameras. Obama began to taunt the British in British Petroleum, perhaps because he found it easier to attack a nation than a multinational; but public opinion was not to be mollified by rhetoric.
BP paid America out of fear, not because of a demand order from its conscience. Carbide had nothing to fear, and never possessed a conscience. QED. BP will not pay a dividend this year. Carbide paid a dividend even after Bhopal.
‘India, bye bye, thank you’: those famous last Anderson words. Bye bye; this is a divorce, not a separation. There might be some alimony in it, but don’t start shopping until the cheque is in the bank.
Accusation is the easy exit route from Bhopal. Introspection will take us back to the beginning. Betrayal is impossible without trust. We did not trust Carbide to be honest. We trusted our political class, and it continues to search for new and inventive ways to betray us again.
The record-setting settlement has raised several questions about the system of justice. What can the $3 billion fine for GlaxoSmithKline (GSK) mean to people who have been affected adversely or have even lost loved ones because of the side effects of drugs, which GSK failed to report? Is justice served in allowing offenders to buy their way out?
What about the people in GSK who took the decisions to not report safety concerns or to bribe doctors to push the drugs for uses not approved by the regulating agency, the Food and Drug Administration (FDA)?
The hefty fine settles criminal and civil charges of unlawful promotion of certain drugs including failure to report safety data and concerns about side effects, and for alleged false price reporting practices.
While $3 billion might be a record settlement, is it that hefty? Is it really hard on the company? Take the case of Avandia, an oral anti-diabetic, one of the drugs GSK is charged with marketing illegally. Avandia marketed since 1999 raked in over $2 billion annually. GSK is also charged with unlawful promotion of Paxil, an anti-depressant. On the market since 1994, Paxil too brought in over $2 billion annually. These two drugs alone helped GSK rake in several billions every year for over a decade. This is not even counting all the other drugs that are part of this settlement such as Wellbutrin, Advair, Imitrex, Lotronex, Flovent and Valtrex and the billions they must have earned for GSK. For being able to net sales worth so many billions, a one-time settlement of $3 billion does seem like a small price to pay to do big business.
Most major pharma companies have been accused of bribing doctors, hiding side effects of drugs and promoting drugs for uses not approved by the FDA, called off-label marketing. In 2009, Pfizer had set the record paying $2.3 billion fines for illegal marketing of 13 different drugs. In the same year, Eli Lily had to pay $1.4 billion over the marketing of Zyprexa, an anti-psychotic. Astra Zeneca and Novartis too have had to settle charges with huge fines. Over 180 pharmaceutical fraud cases, covering more than 500 drugs, are now under investigation by the U.S. Department of Justice.
Obviously, the continuing violations by pharmaceutical companies, despite such huge fines, shows that these fines are no deterrent to the companies. It is said that, to the industry, the hefty fines have simplybecome a cost of doing business.
Director of the Public Citizen’s Health Research Group, Dr Sidney Wolfe pointed out that the settlement was nothing new for GSK, which like many pharma companies has been a repeat offender. “Until more meaningful penalties and the prospect of jail time for company heads who are responsible for such activity become commonplace, companies will continue defrauding the government and putting patients’ lives in danger.”
In this context, unctuous statements by the US administration about the “historic” multi-billion dollar settlement being “a sign of the US government’s firm commitment to protecting the American people and holding accountable those who commit health care fraud ” merely masks the fact that companies and the executives are being allowed to buy their way out of punishment for willful and deliberate harm they cause to people.
Trust me: if thousands of politicians, or their cousins, the nouveau riche, had died on that apocalyptic night in Bhopal, Anderson would still be in an Indian prison, rather than in America, protected by his company, and the company that his company keeps. But only the poor died in Bhopal. We treat our poor as dispensable chattel whose death is meaningless in the economic calculus, since there is no shortage of supply. Bhopal is class war.
Cynicism is never irrational. The irrational, often wrong, sometimes right, are impelled by instinct, heart or even conscience. Cynics are morality-proof. They prefer data to truth.
Delhi has set the gold standard for cynicism. It operates on four axioms: public memory is a dwarf; anger is effervescent; media can be massaged at the appropriate moment; any public crisis can be assuaged with crumbs, while the promotion of private interests continues off-screen.
Jairam Ramesh’s promise of a Green Tribunal in Bhopal is a classical instance of a crumb dipped in the pickle of hypocrisy. Where was this or any other tribunal in the last 26 years when the dead, the deformed and blind babies and the stillborn fetuses were a reminder that justice must be done? Or is this tribunal meant for the next onslaught by the dogs of chemical war upon the sleeping slums of Bhopal? Who was Veerappa Moily trying to fool when he claimed that the case against Warren Anderson had not been closed? Why doesn’t he keep the case open for a few more years, until God closes the chapter by taking Anderson away to whichever destination has been allotted to the butcher of Bhopal? A Group of Ministers has been appointed — merely to buy time until the return of amnesia.
The true Bhopal verdict was delivered within four days of the tragedy, in December 1984, not on June 7, 2010, when Anderson was smuggled out of Bhopal on a state government aircraft and then put on a plane to America. Since then we have witnessed a pretend-justice farce played out by government, police and the judiciary, including the Supreme Court. The last is most culpable, since we hold a Chief Justice of India like A M Ahmadi to higher standards of probity than we do politicians or policemen. Ahmadi got his proper thank you note after he retired.
Chief judicial magistrate Mohan Tiwari’s judgment served only one useful purpose. The sheer scale of its magnanimity towards the accused lit a fuse under the volcano of collective guilt. The lava is spewing from myriad crevices, scorching and burning many-layered masks that have hidden deceit for a generation. As memories were stoked, officials, some perhaps frustrated by the fact that their silence had not been rewarded, revealed how successive governments had intervened to slow down the judicial process and sabotage any chance of Anderson’s extradition. Union Carbide and its collaborators, including Indians of course, have sustained themselves with a lie, that it was an Indian disaster since the plant was built and run by Indians. The design is an exact replica of an American plant, and an American who was terrified of being tried in India was in charge of management.
The political establishment assumed that June 7 would be just another day in a long calendar, possibly punctuated by an occasional, futile scream. The court was fortified, and entry denied to petitioners, victims and media. My one memory of this courtroom, gleaned from television, shall be of the smug grin of an obese policemen laughing at two old women, their faces contorted by rage and frustration, who knew that the system which had stolen their lives had also cheated their children in death.
Trust me: if thousands of politicians, or their cousins, the nouveau riche, had died on that apocalyptic night in Bhopal, Anderson would still be in an Indian prison, rather than in America, protected by his company, and the company that his company keeps. But only the poor died in Bhopal. We treat our poor as dispensable chattel whose death is meaningless in the economic calculus, since there is no shortage of supply. Bhopal is class war.
Is it surprising — or not? — that while even the Obama administration jumped in with some gratuitous advice, Dr Manmohan Singh had nothing to say? Perhaps the Prime Minister would have been repetitive. In essence, the signal from Washington and Delhi is the same: forget the dead, get on with multinational life.
Barack Obama was not elected to ensure justice for the Indian victim. He is in the White House to protect American business, and defend the two-laws theory that motivates American international relations, whether in war or peace. When 11 American workers were killed in an oil rig blow-up in the Gulf of Mexico, Washington demanded $1.5 billion from BP. Nearly 20,000 dead in Bhopal, half a million affected, and the total compensation is $470 million. Do the math. Obama has promised to penalize BP for the current oil spill to the extent of many billions of dollars. Magistrate Manoj Tiwari wants only Rs 5 lakh as reparation from Carbide for mass slaughter.
When Exxon was fined $5 billion for the Alaska oil spill, nearly $40,000 was spent on the rehabilitation of every affected sea otter. The victims of Bhopal are, so far, entitled to $200 each.
Don’t do the math. It may turn you into a cynic.
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