Interpreting ‘under management and control’ in the Malaysian context

A ‘National Stakeholders’ Workshop on the Implementation of the ITPGRFA/MLS’ is currently under way in Kuala Lumpur, Malaysia (March 14-15).  One of the main purposes of the workshop is to allow participants an opportunity to comment on a study conducted during the last two years, by Center of Excellence for Biodiversity Law (CEBLAW), of policy options for implementing the multilateral system (MLS).   

Gurdial Singh Nijar, CEBLAW (right) with Michael Halewood, Bioversity International (center) and Kent Nnadozie, Treaty Secretariat (left).

CEBLAW’s Director, Professor Gurdial Singh Nijar, presented a framework for identifying PGRFA that are ‘under the management and control’ of the Malaysian national government and ‘in the public domain’.  PGRFA that fits this description are automatically included in the multilateral system.  He addressed the situation of statutory organizations, with their own legal identities and their own boards of trustees, which host ex situ collections of PGRFA. He analyzed the legislative acts that created a range of such organizations in Malaysia, focusing in particular on provisions for governance and the organizations’ relative degrees of autonomy (from the federal government) to set policies and make decisions concerning those collections. Ultimately, what needs to be determined, on a case-by-case basis, is whether the organization is controlled by the government in ways that it is basically exercising governmental functions vis-à-vis the management and use of the PGRFA collections. Participants were asked to comment on the framework of analysis and how it applies to different Malaysian organizations, including the Malaysia Agricultural Research and Development Institute (MARDI), which holds the largest collections in the country (approximately 23,000 accessions) and universities.     

Dr. Rosliza binti Jajuli

Dr. Rosliza binti Jajuli, a senior research officer with MARDI, confirmed that MARDI is gearing-up its efforts to implement the multilateral system. MARDI is assembling a list of PGRFA accessions and related information to send to the Treaty Secretariat, to confirm that they are in the multilateral system. MARDI has not yet adopted wide-spread use of the SMTA. On a few occasions it has used the SMTA when distributing Annex 1 materials outside Malaysia. Not yet for domestic exchanges.    

The Malaysian government has been considering a draft national access and benefit sharing law to implement the Convention on Biological Diversity for many years. The draft extends to all genetic resources, but includes a provision empowering the Minister of Environment to make declarations excluding application of the law to genetic resources that are the subject of international agreements ratified by Malaysia (which includes the International Treaty). National consultations with respect to that draft law will commence in the next months. While the relationship/interface between the operation of the ABS law under the Ministry of Environment and the MLS under the Ministry of Agriculture should not be problematic, it will take some time until it is clearly reflected in operating national laws.

**Professor Nijar is a member of the Faculty of Law, University Malaysia, and Director of the Centre of Excellence for Biodiversity Law (CEBLAW). The CEBLAW paper, and the workshop, were supported by the FAO/Bioversity International/Treaty Secretariat Joint Programme with financial support from the governments of Sweden and the Netherlands. The paper will be published, and linked to this blog, in the next few months.