Implementing UPOV 1991 Violates the Federal Constitution and Will Create Conflicts with National Laws

Forum Kedaulatan Makanan Malaysia (FKMM) urgently raises the alarm that, despite widespread objections from farmers and civil society organisations, the Ministry of Agriculture continues to push for Malaysia to accede to the 1991 Act of the International Convention for the Protection of New Varieties of Plants (UPOV 1991).

UPOV 1991 is a draconian international agreement that threatens to hand over control of Malaysia’s seed sector to foreign commercial interests. It will result in higher seed prices, increased risk of biopiracy of local genetic resources, and the systematic erosion of the rights of farmers including indigenous peoples and local communities (IPLC).

Every upcoming sitting of Parliament now represents a critical turning point — a moment of reckoning for the very communities whose rights Parliament is constitutionally mandated to uphold and protect.

The existing Protection of New Plant Varieties Act 2004 (PNPV 2004) strikes a careful balance — protecting breeders’ rights while also safeguarding farmers, IPLC, biodiversity, as well as constitutional rights. Implementing UPOV 1991 would require dismantling this law, stripping away critical protections and undermining Malaysia’s sovereignty.

 It will result in undermining of and direct conflict with Malaysia’s Federal Constitution as well as other national laws such as the Access to Biological Resources and Benefit Sharing Act 2017, the Biosafety Act 2007, the Sabah Biodiversity Enactment, the newly amended Sarawak Biodiversity Centre Ordinance 1997 and the Dangerous Drugs Act 1952. 

Firstly, Article 5 of the Federal Constitution guarantees the right to life — a right that has been interpreted to include the right to livelihood. UPOV’s restrictions on farmers’ customary freedoms to save, use, exchange, and sell farm-saved seeds directly threaten the livelihoods of local communities and indigenous peoples who rely on such practices for seed access and food production. Article 76(2) of the Constitution is also clear that overriding of native law and custom in Sabah and Sarawak requires consultation with the State.

Notably, in both Honduras and Colombia, the Constitutional court intervened to declare acceptance of UPOV 1991 to be unconstitutional.

Secondly, Section 15 of PNPV 2004 gives the government discretion to deny granting breeder’s rights for varieties that may threaten public order, morality, or the environment. This safeguard aligns with other national laws, such as the Dangerous Drugs Act 1952, which restricts the cultivation of certain plants. However, accession to UPOV 1991 would require the removal of Section 15, as it is incompatible with UPOV’s rigid framework. Removing Section 15 would open the door for breeders to claim monopoly rights over plant varieties that Malaysia has explicitly banned from cultivation — an outrageous violation of national sovereignty and public interest.

Third, Section 12 of the PNPV 2004 includes critical safeguards against the biopiracy of local genetic resources, including those belonging to IPLCs. It requires breeders to disclose the source of the genetic material used in developing a new variety, obtain the prior informed consent of IPLCs in cases where the plant variety is developed from traditional varieties; and demonstrate compliance with the 2017 ABS Act.Removing this provision would allow monopoly rights to be granted even where local plant genetic resources have been misappropriated — effectively legitimising biopiracy and undermining the rights of IPLCs. Similar legal protections also exist under the Sabah Biodiversity Enactment and the Sarawak Biodiversity Centre Ordinance, which could likewise be undermined.

Further under Section 12 of the PNPV 2004, applicants for plant breeders’ rights must submit documents demonstrating compliance with laws governing genetically modified organisms (GMOs). As highlighted above, Section 15 gives the authority discretion to refuse the grant of breeders’ rights where necessary to protect health and the environment. However, both provisions are considered inconsistent with UPOV 1991.

Their removal will create a clear conflict with the Biosafety Act 2007, which aims to minimise potential adverse effects of GMOs on human, animal, and plant health, the environment, and biological diversity. The Act requires rigorous risk assessments and prior approval before any GMO can be released into the environment. Without the safeguards in Sections 12 and 15, a breeder may be granted exclusive rights over genetically modified varieties — even if those varieties pose serious risks to health or the environment.

The proposed amendments to the PNPV 2004 to align it with UPOV 1991 would create serious and unacceptable conflicts with the Federal Constitution and other national laws. Yet, the government appears to be rushing ahead with these changes without adequate consultation or justification. It is also a fundamental principle that IP should not be granted for subject matter whose exploitation would violate the law or contravene public order.

Forum Kedaulatan Makanan Malaysia (FKMM) has consistently highlighted that the existing PNPV 2004 already provides a well-balanced and functional plant variety protection system — one that recognises both breeders’ rights and the rights of farmers and local communities and safeguards to protect public interests. There is simply no need to adopt the rigid and restrictive UPOV 1991 framework.[i]

A growing number of biodiversity and food security experts have cautioned that UPOV 1991 is ill-suited to the needs of developing countries[ii], and instead recommend adopting alternative, non-UPOV systems that can be tailored to national agricultural priorities and realities. We thus urge the Malaysian Government and Parliament not to bow to pressure to join UPOV 1991 and instead to:

1. Defend Malaysia’s existing PNPV 2004 and immediately cease all efforts to amend/repeal the PNPV 2004 to bring it in line with  UPOV 1991;
2. Engage and consult meaningfully with farmers, indigenous communities, local communities and concerned citizens and organisations, all stakeholders, especially those in Sabah and Sarawak.
3. Uphold the Federal Constitution constitutional norms, existing protections for farmers, and fulfil Malaysia’s international treaty obligations under the ITPGRFA and other human rights instruments.

The Government and Parliament must act decisively to protect the rights and livelihoods of the rakyat, uphold constitutional and human rights, and defend our agricultural heritage for present and future generations.

[i] See the Potential Impact of UPOV 1991 on the Malaysian Seed Sector, Farmers and their Practices, https://apbrebes.org/sites/default/files/2023-07/Potential%20Impact%20UPOV%20Malaysia_fin.pdf

[ii] A Compilation of Selected Literature on the Impact of the UPOV Convention, Alternative sui generis PVP Laws and the Effect on Farmers’ Rights,
https://www.apbrebes.org/sites/default/files/2020-12/APBREBES_UPOV-LitRev_EN_12-20_fin.pdf

Forum Kedaulatan Makanan Malaysia (FKMM)

Press Release, 29 September 2025

FKMM is a network comprising academics, professionals, NGOs, and associations of farmers, fishers, and livestock breeders. It is a discussion and action platform to strengthen food security and food sovereignty in Malaysia. FKMM advocates for farmers’ rights and policy changes towards agrobiodiversity and agroecology.