Government Trade Policy Shift: What has Changed?

 When I attended the 15^th Round of Trans-Pacific Partnership Agreement (TPPA) negotiations in Auckland last December, it hit me that the campaign for access to medicines and fair trade really doesn’t have much time left. The rumours at that time were that negotiations would conclude in October 2013.

The TPPA, a US-led free trade agreement that has very little to do with trade, is a beefed-up version of previous US free trade agreements (FTAs) designed to maximise corporate power and profits, while ignoring and minimising patient rights, worker rights, internet user rights, and environmental rights. It is being negotiated between 11 countries: Australia, Brunei, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Viet Nam.

In 2007-2008 when the Barisan National-led Malaysian government was negotiating the US-Malaysia FTA, there seemed to be no shortage of objections to TRIPS-plus and other provisions in the TPPA that would negatively impact access to medicines, farmer’s rights, and tobacco use in Malaysia. The then Agriculture Minister Tan Sri Muhyiddin Yassin (now Deputy Prime Minister) said that the Government would not compromise on the livelihood of local farmers, and excluded tobacco and rice from the ambit of the agreement.[1] Meanwhile, the Member of Parliament for the constituency of Rembau, Negeri Sembilan and UMNO Youth Chief wrote in his blog that the US-Malaysia FTA was ‘a serious test to our sovereignty’ and stringent patent protections in US demands were a ‘real danger’, denying access to more affordable generic medicines[2] for longer.

The negotiations for the US-FTA broke down, with the Malaysian Cabinet having over 50 ‘red lines’ or matters that the Malaysian government simply would not compromise.

Today, the TPPA negotiations seem to be proceeding without so much as a squeak from dissenting Barisan politicians. What has changed? The TPPA is a stronger trade agreement, not weaker. Have farmers’ and patients’ rights become acceptable to sacrifice for short-term economic gains? What (or who) has been the catalyst for all this change?

Prime Minister Najib Razak may just be it. On 29 and 30 May 2012, he received American Senators John McCain and Joseph Lieberman, notorious free trade advocates, at a meeting in Kuala Lumpur. Senator McCain later commented in a tweet that PM Najib was ‘improving US-Malaysia relations.’[3]  In September 2012, the PM said that the TPPA was a ‘promising pathway for free trade’.[4] On 20 November 2012, he attended a TPPA meeting in Phnom Penh with President Obama, PM Gillard, Sultan Hassanal Bolkiah, and other TPPA country leaders.[5] It may very well be that PM Najib’s keenness for the TPPA and Malaysia-EU FTA is being reflected throughout the party.

The only Barisan politician who has spoken up, quite surprisingly, is the Minister of Health Liow Tiong Lai, who said in an interview after the Malaysian AIDS Council forum on the TPPA at the Bar Council on 4 August 2012, ‘We are against the patent extension.’[6] (Patent extensions are part and parcel of US free trade agreements, and they result in delays of entry of more affordable generic medicines into markets.) Also relevant is MP Khairy Jamaluddin’s response to me in regard to his 2008 blog post on twitter today:

What may have also changed is the level of tobacco industry interference in government policy. During my 6-month tenure as a Research Officer in the Ministry of Health from October 2010-March 2011, I noticed personally that Big Tobacco companies had direct access to the Minister when even MOH officers did not have access. This interference may be reflected in the decision not to raise tobacco taxes last year. It may also be reflected in trade negotiators’ very strong pro-tobacco stance in the TPPA, and their referring to statistics released by the tobacco industry in Malaysia, statistics usually only known by the tobacco industry themselves and tobacco control professionals. (Note: Tobacco industry interference in policymaking is specifically prohibited in Article 5.3 of the Framework Convention on Tobacco Control or FCTC, a Convention to which Malaysia is a party)

The reason I’ve written this article, really, is to implore Barisan politicians to speak up, or at the very least, meet with the Malaysian Chief Negotiator J. Jayasiri of MITI to express your concerns personally before it is too late.

Here is a short timeline of notable events that have occurred in recent years on TPPA:

Date	Event
October 2010	Malaysia announces that it has joined the TPPA negotiations
5-9 December 2011	Mini-round of negotiations held in Ritz-Carlton Kuala Lumpur, health groups protest outside negotiation venue and Tan Sri Mohd Zaman Khan, President of Malaysian AIDS Council hands petition to US negotiators.
29-30 May 2012	PM Najib meets with pro-free trade American senators John McCain and Joseph Lieberman in Kuala Lumpur
2-10 July 2012	San Diego round of negotiations held, Malaysian health coalition Joint Statement handed out to US and Malaysian negotiators. Joint Statement endorsed by Malaysian AIDS Council, MTAAG+ and National Cancer Society of Malaysia (NCSM)
4 August 2012	Public Forum on Medicines and the TPPA co-hosted by Malaysian AIDS Council and Breast Cancer Welfare Association
6 August 2012	Minister of Health Liow Tiong Lai states that MOH against patent extensions proposed by US in TPPA
September 2012	PM in Vladivostok for APEC meeting, comments that TPPA ‘promising pathway for free trade’.
20 November 2012	PM in Cambodia, meets with TPPA country leaders including President Obama and PM Gillard.
3-12 December 2012	15th Round of negotiations held in Auckland, New Zealand. At Stakeholder Briefing, I (Fifa Rahman) asked US Chief Negotiator Barbara Weisel: “We have been waiting 9 months for the new patent proposal that we understood was to be forthcoming, if it is coming, when can we expect it? Or will it be decided at the political level?” She answered that as it was a controversial issue, they will take their time and wait for congressional approval. US Chief Negotiator Barbara Weisel at far right, Malaysian Chief Negotiator J Jayasiri fourth from left.
11 December 2012	My interview with Meera Sivasothy on BFM Radio on the Auckland Round of Negotiations.

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[1] Zulfakar, Mergawati. ‘Tobacco, rice excluded in FTA negotiations with US’ (January 15, 2007) The Star Online http://biz.thestar.com.my/news/story.asp?file=/2007/1/15/business/20070115145508&sec=business Accessed 12 February 2013.

[2] Jamaluddin, Khairy. ‘FTA must promote fair, not free trade’ (May 26, 2008) http://rembau.com.my/2008/05/fta-must-promote-fair-not-free-trade/ Accessed 12 February 2013

[3] New Straits Times ‘McCain: Najib an impressive reformer.’ (June 6, 2012) http://www.nst.com.my/nation/general/mccain-najib-an-impressive-reformer-1.91514 Accessed 12 February 2013

[4] Wong, Sai Wan. ‘PM: Msia, US want Trans-Pacific Partnerships talks to be wrapped up by end 2013’ The Star Online  (September 9, 2012) http://thestar.com.my/news/story.asp?file=/2012/9/9/nation/20120909150540&sec=nation Accessed 12 February 2013

[5] ‘PMs visit abroad’ (November 20, 2012) Office of the Prime Minister of Malaysia, Official Portal http://www.pmo.gov.my/?menu=visit&id=37328&page=1951&e=1&bln=all&thn=all Accessed 12 February 2013.

[6] Walton, Zach. ‘Malaysia Health Minister says TPP is no good.’ (August 9, 2012) WebPro News/Technology http://www.webpronews.com/malaysia-health-minister-says-tpp-is-no-good-2012-08 Accessed 12 February 2013.

15th Round TPPA Negotiations Update: Auckland, New Zealand

Reporting direct from Auckland on the TPPA negotiations. I have just met with some negotiators for the TPPA, and they said that negotiators from many different countries are united against American demands for greater monopolies of medicines. Malaysians will pay more for medicines and medical treatment if we aren't strong against the American demands. This is a huge trade agreement and Najib Razak wants it. Please voice out. YOU will be affected in the end.

Follow me on twitter at @fifarahman for live updates.

Malaysian Police Views of Harm Reduction for Persons who Use Drugs

Last week, on 30-31 May 2012, I was in Canterbury for the International Society for the Study of Drug Policy conference and presented on Malaysian Police Views of Harm Reduction. 52.8% of respondents stated that they would seize state-provided needles-and-syringes. They also recommended that police change their KPIs from "persons arrested" to "persons arrested diverted to treatment." The full paper can be accessed here: https://docs.google.com/file/d/0B62R_9AekiRXR1VQRW5JZzVEU00/edit?usp=sharing

The Trans Pacific Partnership Agreement and Access to Medicines

On July 31, 2011, I wrote very informally and perhaps very simplistically about how the TPPA will affect health. At this point of time I am better informed of specific parts contained in US demands that will arbitrarily and devastatingly affect Malaysian access to generic medicines. In the past week, negotiators from the United States Trade Representative were in Kuala Lumpur for a mini-round with Malaysian negotiators. From several meetings with negotiators and other events during the week, what can be gleaned from reactions of negotiators towards activist engagement is that Malaysian patients may be in very dire straits.

But first, the actual effect of TPPA provisions on medicines. The US is demanding patent extensions, which basically mean that patents on medicines post-TPPA could last for another 5-10 years or more on top of the required 20 years. This means that generic companies would not be able to produce more affordable generic drugs during this period of time. Malaysians would be forced to pay for the more expensive patented versions.

Persons I speak to question: 'Okay, but the government will subsidise the difference, no?'

Well, the chances of that seem slim. I spoke to an oncologist from HUKM last Sunday, and according to him costs of cancer meds alone for Malaysia would come up to RM 1 billion. According to him, this exceeds the Ministry of Health budget for all medicines.

In addition to patent extensions, the US is demanding something called 'data exclusivity'. This effectively requires that on top of patent extension periods, for an additional period, generic companies would not be able to obtain data on chemical content of the patented medicine, efficacy, information on side effects, etcetera, from the patent company. The only way for generic companies to do obtain this information would be to conduct their own scientific trial, which would cost money that generic companies do not have, and would be medically unethical as during scientific trials the control group is not given that particular medicine and the other group is.

As a result of the above provisions and more, Malaysians can expect the reduction of generic medicines available in the market. HIV/AIDS patients, cancer patients, mental health patients, Parkinson's patients, etcetera, many use generic drugs. Some of these patients pay for expensive patented medicines out of their own pockets. After the TPPA, this occurrence is bound to increase unless the Malaysian negotiators insist for an exemption of pharmaceuticals from the agreement.

Word is that the imperative from higher up is that negotiations are concluded by July 2012. It is incredibly important that health groups and patient groups rally together to assert their right to health and right to life before that time. Malaysia, don't let them trade away our lives.

Decriminalisation versus Legalisation

Throughout the world, drug policy advocates continue to confuse decriminalisation and legalisation. When this happens, the general public inevitably confuses them too. This is an issue because public citizens are even more confused now about the rationales behind the two ideologies.

I was in Los Angeles from November 1st to 7th 2011 for the Drug Policy Alliance conference and noted that people used the terms interchangeably. It is incredibly important to maintain the distinction between one and the other, as this influences policy ideas, advocacy efforts, and treatment strategies. In the following paragraphs, I will attempt to define in simple terms what both of these ideas mean, and hopefully be able to help disintegrate some of the confusion that exists.

Decriminalisation of drug possession is a policy that no longer treats a drug user as a criminal, but rather as a patient. Basically, there could be a law which states that persons in possession of a certain amount of drugs is deemed a consumer. This does not mean that the individual escapes scot-free, however. In Portugal, if a person is caught with an amount less than 1 gram of pure heroin (the statutory amount for 10 days consumption), they go to a body called the Dissuasion Commission. This body designs a treatment program for them. Treatment could include psychiatric treatment, psychosocial interventions, and harm reduction measures such as methadone and needle-and-syringe exchange programs.

Legalisation is an ideology whereby drugs would be regulated in the same way as drugs and alcohol. The rationales behind include that crime bosses who run major drug syndicates would run out of business, and that less harm would be done as a result of incarceration.

This is, in a nutshell, how the two are different. What is similar between both of them is to prevent harms caused by incarceration policies. Incarceration, judicial corporal punishment, and capital punishment has been practised for 60 years in Malaysia. These policies have not reduced drug use, increased HIV/AIDS infections, increased risk of psychiatric comorbidity, not reduced drug supply, broken up families, and have stigmatised drug users to such a point that they cannot reintegrate into society as a productive human being, and must instead resort to crime.

The success of Portugal's policies and treatment modalities can be seen in this report by Open Society Foundations: http://www.soros.org/initiatives/drugpolicy/articles_publications/publications/drug-policy-in-portugal-20110829

Our delegation at the Dissuasion Commission, Lisbon, Portugal

The UN Refugee Convention: To Sign or Not to Sign

On 9 August 2011, I wrote about refugees and healthcare ethics, mainly focusing on obvious illegality by international law on the part of both Australia and Malaysia.

Today I write on developments that have occurred after the decision of the High Court of Australia, and the eventual deadlock on what is lovingly referred to as ‘The Malaysia Solution’. Fact is, the Malaysia solution is no solution.

First of all, many Malaysians responded with: ‘sign the UN Refugee Convention!’ which is indicative of the lack of knowledge on just how outdated this Convention is. It may well be that many Malaysians do not understand the issues surrounding refugees and how the UN Convention works.

The UN Refugee Convention quite simply does not guarantee protection for refugees because of their restrictive definitions of what constitutes a refugee. In fact, if you follow this link, you’ll read about one Mr Hussain who was returned to Afghanistan by Australia because he did not fall within the definitions of a refugee within Australian law and International Law (meaning the aforementioned ratified Convention). Mr Hussain was then post-return tortured and decapitated. All of this would directly contravene the principle of non-refoulement (non-return). But what is a nation to do when refugee issues are highly political and they are a signatory to a gappy little Convention with national laws that are no better?

Recently, Australia tabled a bill on Complementary Protection that will increase protection for refugees. At present, refugees are defined as persons who have a well-founded fear of persecution as a result of the individual’s race, religion, nationality, political opinion, or membership of a particular social group. The Complementary Protection Bill would widen the definition of refugee to include persons who face a real risk of torture or cruel, inhuman or degrading treatment or punishment if returned home, or would be exposed to the death penalty or other arbitrary deprivation of life.[1]

We would need both definitions, and additional definitions for dependents of persons coming under these definitions. For a read on the 2011 Australian Migration Amendment (Complementary Protection) Bill 2011, click here. It should be noted that these amendments were drafted to be consistent with the International Covenant on Civil and Political Rights and the Convention against Torture[2], both of which Malaysia has not signed.

The UN Refugee Convention does not guarantee protection of the rights of refugees, but it may well be a good start. Optimal protection, however, shall not exist with the ratification of the Refugee Convention alone. In addition to the Convention, we would need a well drafted national law and most importantly, political will.

For once, I'd also like to share a picture I took when volunteering with Somali refugees here:

They are gorgeous kids, aren't they? Gorgeous kids that have no right to education, and no right to healthcare.

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[1] BRIEFING NOTE FOR PARLIAMENTARIANS Migration Amendment (Complementary Protection) Bill 2009 (5 November 2010) <;http://www.hrlrc.org.au/files/Complementary-Protection-Bill-Briefing-Note-to-MPs-Nov-2010.pdf>;

[2] Jane McAdam, ‘Complementary protection: Labor’s point of departure’ (03 December 2008) Inside Story

Alder v Khoo Birth Injury Litigation Update: Test Results show Medical Negligence and NOT Genetic Abnormality

In my 8 May 2011 post on the Queensland case of Alder v Khoo[1], I stated: ‘While it is true that the majority of cases can be diagnosed via a DNA test, what is contentious is that the minority of those children may have been misdiagnosed as having cerebral palsy, when indeed they had Angelman’s syndrome.’[2]

In an email to me dated 26 August 2011, Lance Alder (litigation guardian for Trent Alder) rightly pointed out that the opposite is also true: there may be children out there who have been misdiagnosed as having Angelman’s syndrome, when indeed they had cerebral palsy.

These inferences are significant for the reason that cerebral palsy post-hypoxic event is caused by doctor’s negligence whereas Angelman’s syndrome is a genetic condition, meaning that if medical tests prove that the child has Angelman’s syndrome, the condition is not doctor-caused and so the doctor is held not liable for the injury. It should be noted that due to the plausible chance of misdiagnosis, there may be doctors who have gone scot-free due to a misdiagnosis as Angelman’s syndrome, which was very nearly the result in this case.

I have to thank Lance Alder in this blog post for emailing me the most recent results of Trent Alder’s medical tests[3] which show that he has in fact global brain damage and complex epilepsy caused by the medical negligence of Obstetrician Dr Paul Khoo and the Rockhampton Hospital on 3 January 1989. The test results can be found here.

The facts of the case and judgement can be found here. The appeal at the Supreme Court of Queensland (i.e. the 2011 case of Alder v Khoo[4], Dalton J did not decide on question of liability but rather on the issue of the plaintiff undergoing medical tests. Nevertheless, the above test results prove that Trent Alder did not have Angelman’s syndrome, and that his condition was caused by the negligence of the Defendants.

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[1] Alder v Khoo & Ors [2010] QCA 360

[2] ‘Alder v Khoo: When One Test Can Signify the Difference Between Medical Negligence and Genetic Abnormality’ (8 May 2011) Malaysian Health Law Debates <http://msianhealthlawdebates.blogspot.com/2011/05/alder-v-khoo-when-one-test-can-signify.html> (Accessed 7 September 2011)

[3] The test results can be found here: <https://docs.google.com/document/d/1GHl7nF6-PVufrjiboYEAka1UlIzjiCKJOjIHvVkUV3E/edit?hl=en_US> (Courtesy of Lance Alder)

[4] Alder v Khoo & Ors [2011] QSC 126