Governance and Micropolitics of Traditional ... - IPRsonline.org

3.5 Legislation and Bureaucratic Micropolitics
Thailand has developed sui generis laws which provide for protection of plant varieties, herbs
and in various ways may contribute to TK protection. These have only been recently passed
and therefore associated regulations, rules and implementation are only partial. These Acts
were developed with little external pressure but utilised the experience of other countries such
as India, the Philippines, South American and Central American countries. They represent
unique examples of sui generis systems relating to the protection of plant genetic resources
and TK. Furthermore they were initiated by, or with the consultation of public interest groups,
farmers groups, NGOs and cross-department involvement. They provide good examples of
how laws may be developed openly and democratically to suit a country’s level of
development, culture and environmental conditions.
The implementation of these acts will be the real test of their effectiveness. There is still a
considerable amount of trial and error involved in their administration and operation. The
following sections should thus be read with an understanding that this progress is being made
currently and there is continual bureaucratic change.
3.5.1 The Constitution of the Kingdom of Thailand B.E. 2540 (1997)
There are several provisions in the Constitution relating to community rights, traditional
knowledge and biodiversity conservation. Most importantly the Constitution recognises the
right of traditional communities to conserve their local knowledge and participate in the
management of natural resources:
“Section 46. Persons so assembling as to be a traditional community shall have the right to
conserve or restore their customs, local knowledge, arts or good culture of their community
and of the nation and participate in the management, maintenance, preservation and
exploitation of natural resources and the environment in a balanced fashion and persistently
as provided by law.” Constitution of the Kingdom of Thailand, B.E. 2540 (1997).
Section 46 has been regularly cited by local communities and supportive academics, NGOs
and government officials as a source of the protection of traditional knowledge. It provides an
important and forceful means for greater involvement of communities in conservation and a
whole range of other broader activities. The final few letters ‘as provided by law’ have
however meant that little action has formally been taken to make possible the intentions of the
provision.
Also important are principles of participation in the use and preservation of biological
resources:
“Section 56. The right of a person to give to the State and communities participation in the
preservation and exploitation of natural resources and biological diversity and in the
protection, promotion and preservation of the quality of the environment for usual and
consistent survival in the environment which is not hazardous to his or her health and
sanitary condition, welfare or quality of life, shall be protected, as provided by law.”
Constitution of the Kingdom of Thailand, B.E. 2540 (1997).
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