CASE DOCUMENTATION: INDONESIAN FARMERS PROSECUTED FOR BREEDING THEIR OWN SEEDS
Februari 08, 2009
Hira Jhamtani and Dey Patria
Some Indonesian farmers were recently prosecuted at the behest of a seed marketing company for breeding their own seeds instead of purchasing them from the company. Although the cases did not involve genetically modified seeds or seed multinationals, they have some disturbing implications.
IN early 2005, without too much media and public scrutiny, Indonesian farmers were issued a warning by a seed company: "Do not be too creative, do not breed your own seed, or you will be prosecuted." This warning was given through the prosecution of several farmers who tried breeding their own corn seed in Nganjuk and Kediri Regencies, East Java.
One of those farmers was Tukirin, a simple 53-year-old corn grower in Nganjuk Regency. He was punished with a suspended prison sentence and was ordered not to plant his own corn seeds for one year. The following is his story.
The Tukirin case
One Friday afternoon in October 2003, Tukirin had the shock of his life when he was told that a couple of police officers were looking for him.
He had never had to deal with the police in his entire life. They had come with employees of the seed company PT Benih Inti Subur Intani (BISI) and several government extension officers serving as witnesses. They charged him with "stealing parent seeds from PT BISI".
Back in 1994 Tukirin and a few other farmers in Nganjuk were involved in a cooperation project between PT BISI and the local government to develop corn seeds. PT BISI was established in 1983, a joint venture between the Thailand-based Charoen Phophand (80% share) and a national company PT Central Pertiwi Indonesia (20%). It leads the hybrid corn seed market in Indonesia.
Tukirin was asked to participate in the project without being informed of the objective, except that the farmers would be taught the skill of breeding seeds. The farmers bought seeds from the shop while PT BISI provided the male seeds. Then the seeds were planted on each farmer's land in a particular way: three rows of female seeds and one row of male seeds. The corn seeds harvested from the farmers' plots were bought and marketed by PT BISI. The project ended in 1998 and Tukirin was named the second best seed developer in the project. There were never any legal terms of contract between the farmers and the project management or PT BISI.
In 1999, Tukirin continued to plant corn by buying seeds every season. He needed 10 kg of corn seeds for his half-hectare plot of land. At the current price, BISI-produced seeds cost Rp. 26,000-30,000 per kg (about US$2.90-3.30). Thus the cost of seeds would come up to around Rp. 300,000.
In 2003 Tukirin wanted to breed his own seeds using the skills he had acquired during the project. He selected the larger corn type with seeds which were pale in colour, which he considered as male. He planted them with seeds from normal corn that were considered female. He used a modified method of planting in which he inserted male seeds among the rows of female plants. He succeeded in breeding seeds this way, although they were not of the same quality as the seeds from PT BISI.
The best price for corn harvest was Rp. 1,200 per kg, but the actual price was always lower than that. In other words, farmers like Tukirin do not make much money. Therefore anything that could cut production costs was welcome. Thus, Tukirin's colleague was happy when he started breeding seeds and selling them at Rp. 6,000 per kg. He sold them without labels and just among his neighbours. He also wanted to continue to experiment further but had to stop when he was arrested.
Trial without a defense lawyer
PT BISI somehow got hold of this information and filed a case against Tukirin and his friend Suprapto, accusing them of distributing seeds illegally without certification. Typical of the Indonesian legal system, the case was handled in a bizarre manner indicative of legal flaws and collusion.
First of all, police officers, employees of PT BISI and witnesses from among the government agriculture extension officers confiscated two female and two male corn plants from Tukirin's field without prior consent or proper authorisation. These plants were two months old and the flowers had not matured. Later on in the court, different corn plants were exhibited whose flowers had bloomed.
Secondly, Tukirin was never represented by (or provided with) a lawyer during both interrogation as well as the court proceedings. The judge did not offer him the services of a state-paid lawyer, to which Tukirin had a right.
Initially Tukirin's family tried to settle the dispute out of court. His wife Amenah told the PT BISI executives that they were prepared to apologise, despite their belief that they did not steal any BISI seeds.
Tukirin's son-in-law sought the help of the local government, which then arranged a meeting between the local agriculture office, Tukirin and PT BISI. At that meeting, the government officials told Tukirin to stop using his own seeds and buy seeds from the shop. Also, when the Regent of Nganjuk heard of this case, he said the government would facilitate an out-of-court settlement and specifically warned, "None of my citizens will be prosecuted". He instructed his officials to make sure that Tukirin was not brought to court, but there was no real action to that effect. This is indicative of either pressures on the local government or collusion. For, after some time, when everyone thought the case had been closed, Tukirin and Suprapto were asked to appear in court in January 2005.
In a very unjust court proceeding, where he was not defended by any lawyer, Tukirin explained how he bred his own seeds, but the expert witness from the government's seed supervision and certification office said that it was impossible to breed seeds using Tukirin's method. It was ironic that a government official actually testified against farmers.
When asked about legal representation, Tukirin said he did not know or understand that he had a right to be represented by a lawyer. "I do not know the law. I have rarely been out of my village and I simply do not understand the system," he said.
Finally, it was not very clear what Tukirin was actually charged with: stealing parent seed, selling seeds without proper certification, or copying BISI's breeding method. Initially, PT BISI accused Tukirin of stealing its parent seeds but it was difficult to prove this in court. Tukirin pleaded not guilty to these accusations. He said he did not steal seeds, he did not copy the methodology of PT BISI and he did not market uncertified seeds as he only sold them to his neighbours and did not make a big business out of this.
The judge ruled that Tukirin violated Article 14(1) of Law No. 12/1992 on plant cultivation system. This article says that seed certification is to be undertaken by the government, or by individuals or legal bodies that are authorised to do so. (But Tukirin did not certify his seeds!)
Article 61(1) b says that unauthorised seed certification as provided in Article 14(1) is liable to a penalty of a maximum three years' imprisonment and a maximum fine of Rp. 150 million. The judge handed down a six-month imprisonment, but suspended it and instead imposed a one-year probationary sentence. It also prohibited Tukirin from planting his own corn seeds for a year.
Tukirin and Suprapto were not the only farmers prosecuted by the court. Three other corn farmers from Kediri were also prosecuted. The Kediri court also imposed suspended prison and probationary sentences on Slamet and Kusen, and one-month imprisonment on seed seller Djumadi. In addition, the Kediri court prohibited Djumadi, Slamet and Kusen from planting and breeding corn seeds. Local non-governmental organisations (NGOs) report similar but undocumented cases from Nganjuk, Kediri and even Tulungagung regencies, where farmers dared not talk to reporters or NGOs of their prosecution.
One such case involved Budi Purwo Utomo, a young farmer from Kediri who learnt seed breeding techniques from books. He was accused by PT BISI of conducting unauthorised seed certification, trademark violation and copying breeding technique. This time BISI brought the case in two areas: Tulungagung, where the seeds were distributed and Kediri where Budi stayed. Budi was acquitted by the Tulungagung court, but still has to face the Kediri court. Unlike Tukirin, he is helped by lawyers from the Muhammadiyah University of Malang.
Legal flaws
Indonesian legal expert Sulistiono Kertawacana contends that the court verdicts had four serious legal flaws. First the courts said Tukirin and friends had copied BISI's patented corn-breeding method, based on Law No. 12/1992. In effect, though, this law does not have provisions on patent violation.
Secondly, if indeed this was a case of patent violation, the Trade Court should have been charged to handle the case, as provided for in Article l118 of Law No. 14/2001 on patents. Thirdly, Tukirin and Djumadi could only be tried for patent right violation if it had been proved that a violation had indeed occurred. Tukirin, as the one accused of patent right violation, should have been imprisoned but was not, while Djumadi as the seed seller was prosecuted. Yet, in an interview, PT BISI insisted that it was accusing Tukirin not of patent violation but of "illegal" certification of seeds.
Company response
For poor farmers like Tukirin, having to appear in court to answer the questions of strangers like a criminal while not understanding what he was actually charged with, may be more of a penalty than imprisonment itself. Thus the whole case was pursued to convey an important message: "Buy your seeds from the companies or else..."
This was partly confirmed in an interview with a staff member from PT BISI who admitted that they found it difficult to control what they termed as "piracy of seeds" by farmers. "They (farmers) have more faith in local seeds that they breed. It took us a long time and a lot of effort to persuade them to switch to our hybrid seeds," he said. The Tukirin case, according to him, was the tip of the iceberg of the seed piracy network. He said recently farmers in Kalimantan, Sumatra and Sulawesi who bought BISI-produced seeds complained of low quality, poor performance and longer planting period. PT BISI found that the seed supply came from East Java and therefore they suspected a seed piracy network may be operating in this province. When asked who was involved in the seed piracy, he declined to respond. He just said that if farmers were allowed to breed their own seeds, the efforts of PT BISI would go to waste.
The main issue for PT BISI and the seed supervision and certification agency was: how and from where did the farmers get the parent seeds? It is well known that when hybrid seeds are replanted (from the first harvest), plant performance declines up to 50%. Thus PT BISI and government officials suspected that farmers were given parent seeds by other parties. This is merely an unproven allegation, yet PT BISI can have its way in the courts.
Government's views
The provincial government of Nganjuk released a statement deploring PT BISI's actions. The statement said that it was the government's understanding that the dispute between the farmers and PT BISI had been settled and so the prosecution of farmers came as a surprise. It also revealed that the Nganjuk government did not get any financial gain from the project with BISI. They agreed to the project as a means to teach farmers modern seed breeding skills. Yet when the farmers mastered the breeding technique they were taken to court instead of being appreciated. However, the government of Nganjuk did not take any further step beyond issuing the statement.
The seed supervision and certification agency, for its part, blamed the farmers. In an interview with the authors, the head of the agency said that the moment the government enacted a piece of legislation, the citizens must know about it. In the case of farmers, extension officers would have told them about Law No. 12/1992 and the illegality of selling uncertified seeds. Thus, he said, Tukirin and his friends lied in court when they said that they did not know they had to register their seeds at the agency. He accused farmers of "wilfully pirating company seeds".
This is a very strange statement as, in an archipelago as vast and with many far-flung islands as Indonesia, even local government officials sometimes have no knowledge of legislation enacted in the capital city by the central government. In a workshop in East Nusa Tenggara, for instance, when asked if they knew about Law No. 29/2000 on plant variety protection, local officials from the agriculture service responded that they had no idea at all, or that they might have heard about it but did not know the substance of the law. When even local government officials are not aware of the laws, how can farmers be expected to fully understand the consequences of breeding seeds?
Future implications
There are three implications for the future. First, unlike the Percy Schmeiser case in Canada, the Tukirin case did not involve genetically modified seeds. But this is indicative of what could happen next once Indonesia allows corporate-produced genetically modified seeds to be distributed in Indonesia. The issue would then revolve not around farmers like Tukirin breeding seeds but farmers becoming victims of genetic contamination.
Secondly, having ratified the World Trade Organisation (WTO)'s TRIPS Agreement on intellectual property rights, Indonesia now has two laws that would make Tukirin-style prosecution possible: Law No. 29/2000 on plant variety protection and Law No. 14/2001 on patents as mentioned above. The first is based on the 1991 UPOV (International Union for the Protection of New Varieties of Plants) and the government treats this as the sui generis system for plant variety protection as mandated by the TRIPS Agreement. The second is based on the TRIPS Agreement, including a full translation of its controversial Article 27.3(b). Both will provide maximum intellectual property protection to companies and "intellectual" plant breeders, at the expense of farmers' rights over seeds. If Tukirin's case had been based on Law No. 29/2000, the court would have handed him an even more severe sentence.
Third, PT BISI is not a multinational in the real sense of the word even though it is a joint venture company with a domestic presence. In the future, farmers may have to face pressures from giant seed multinationals such as Monsanto or Syngenta. A different story might emerge then.
What says Tukirin?
Tukirin himself has several things to say about his case. First, he wonders why PT BISI felt he posed a competitive threat. "The quality of their seeds is much better than mine. They have a wider distribution network. I just want to make seeds for myself and some friends, get a little income. I am just a small fish. Why fear farmers like me?" he says. All he wanted to do was to cut production costs without harming anyone.
Secondly, he laments the lack of government support. He says government officials often stress that farmers must be skilled and independent. He wanted to be skilled in breeding seeds and to use his own seeds. Why then, he wonders, was he prosecuted for doing so? Also, he wants the government officials to communicate the legal aspects of seed breeding so that farmers can understand the system.
Thirdly, after the one year is over, he will continue to breed his own seeds. He says as long as he does it on his land, he feels he has a right to do so. He wants to continue experimenting on seeds bought in the shops to see if he can breed different seeds of better quality.
-----IN early 2005, without too much media and public scrutiny, Indonesian farmers were issued a warning by a seed company: "Do not be too creative, do not breed your own seed, or you will be prosecuted." This warning was given through the prosecution of several farmers who tried breeding their own corn seed in Nganjuk and Kediri Regencies, East Java.
One of those farmers was Tukirin, a simple 53-year-old corn grower in Nganjuk Regency. He was punished with a suspended prison sentence and was ordered not to plant his own corn seeds for one year. The following is his story.
The Tukirin case
One Friday afternoon in October 2003, Tukirin had the shock of his life when he was told that a couple of police officers were looking for him.
He had never had to deal with the police in his entire life. They had come with employees of the seed company PT Benih Inti Subur Intani (BISI) and several government extension officers serving as witnesses. They charged him with "stealing parent seeds from PT BISI".
Back in 1994 Tukirin and a few other farmers in Nganjuk were involved in a cooperation project between PT BISI and the local government to develop corn seeds. PT BISI was established in 1983, a joint venture between the Thailand-based Charoen Phophand (80% share) and a national company PT Central Pertiwi Indonesia (20%). It leads the hybrid corn seed market in Indonesia.
Tukirin was asked to participate in the project without being informed of the objective, except that the farmers would be taught the skill of breeding seeds. The farmers bought seeds from the shop while PT BISI provided the male seeds. Then the seeds were planted on each farmer's land in a particular way: three rows of female seeds and one row of male seeds. The corn seeds harvested from the farmers' plots were bought and marketed by PT BISI. The project ended in 1998 and Tukirin was named the second best seed developer in the project. There were never any legal terms of contract between the farmers and the project management or PT BISI.
In 1999, Tukirin continued to plant corn by buying seeds every season. He needed 10 kg of corn seeds for his half-hectare plot of land. At the current price, BISI-produced seeds cost Rp. 26,000-30,000 per kg (about US$2.90-3.30). Thus the cost of seeds would come up to around Rp. 300,000.
In 2003 Tukirin wanted to breed his own seeds using the skills he had acquired during the project. He selected the larger corn type with seeds which were pale in colour, which he considered as male. He planted them with seeds from normal corn that were considered female. He used a modified method of planting in which he inserted male seeds among the rows of female plants. He succeeded in breeding seeds this way, although they were not of the same quality as the seeds from PT BISI.
The best price for corn harvest was Rp. 1,200 per kg, but the actual price was always lower than that. In other words, farmers like Tukirin do not make much money. Therefore anything that could cut production costs was welcome. Thus, Tukirin's colleague was happy when he started breeding seeds and selling them at Rp. 6,000 per kg. He sold them without labels and just among his neighbours. He also wanted to continue to experiment further but had to stop when he was arrested.
Trial without a defense lawyer
PT BISI somehow got hold of this information and filed a case against Tukirin and his friend Suprapto, accusing them of distributing seeds illegally without certification. Typical of the Indonesian legal system, the case was handled in a bizarre manner indicative of legal flaws and collusion.
First of all, police officers, employees of PT BISI and witnesses from among the government agriculture extension officers confiscated two female and two male corn plants from Tukirin's field without prior consent or proper authorisation. These plants were two months old and the flowers had not matured. Later on in the court, different corn plants were exhibited whose flowers had bloomed.
Secondly, Tukirin was never represented by (or provided with) a lawyer during both interrogation as well as the court proceedings. The judge did not offer him the services of a state-paid lawyer, to which Tukirin had a right.
Initially Tukirin's family tried to settle the dispute out of court. His wife Amenah told the PT BISI executives that they were prepared to apologise, despite their belief that they did not steal any BISI seeds.
Tukirin's son-in-law sought the help of the local government, which then arranged a meeting between the local agriculture office, Tukirin and PT BISI. At that meeting, the government officials told Tukirin to stop using his own seeds and buy seeds from the shop. Also, when the Regent of Nganjuk heard of this case, he said the government would facilitate an out-of-court settlement and specifically warned, "None of my citizens will be prosecuted". He instructed his officials to make sure that Tukirin was not brought to court, but there was no real action to that effect. This is indicative of either pressures on the local government or collusion. For, after some time, when everyone thought the case had been closed, Tukirin and Suprapto were asked to appear in court in January 2005.
In a very unjust court proceeding, where he was not defended by any lawyer, Tukirin explained how he bred his own seeds, but the expert witness from the government's seed supervision and certification office said that it was impossible to breed seeds using Tukirin's method. It was ironic that a government official actually testified against farmers.
When asked about legal representation, Tukirin said he did not know or understand that he had a right to be represented by a lawyer. "I do not know the law. I have rarely been out of my village and I simply do not understand the system," he said.
Finally, it was not very clear what Tukirin was actually charged with: stealing parent seed, selling seeds without proper certification, or copying BISI's breeding method. Initially, PT BISI accused Tukirin of stealing its parent seeds but it was difficult to prove this in court. Tukirin pleaded not guilty to these accusations. He said he did not steal seeds, he did not copy the methodology of PT BISI and he did not market uncertified seeds as he only sold them to his neighbours and did not make a big business out of this.
The judge ruled that Tukirin violated Article 14(1) of Law No. 12/1992 on plant cultivation system. This article says that seed certification is to be undertaken by the government, or by individuals or legal bodies that are authorised to do so. (But Tukirin did not certify his seeds!)
Article 61(1) b says that unauthorised seed certification as provided in Article 14(1) is liable to a penalty of a maximum three years' imprisonment and a maximum fine of Rp. 150 million. The judge handed down a six-month imprisonment, but suspended it and instead imposed a one-year probationary sentence. It also prohibited Tukirin from planting his own corn seeds for a year.
Tukirin and Suprapto were not the only farmers prosecuted by the court. Three other corn farmers from Kediri were also prosecuted. The Kediri court also imposed suspended prison and probationary sentences on Slamet and Kusen, and one-month imprisonment on seed seller Djumadi. In addition, the Kediri court prohibited Djumadi, Slamet and Kusen from planting and breeding corn seeds. Local non-governmental organisations (NGOs) report similar but undocumented cases from Nganjuk, Kediri and even Tulungagung regencies, where farmers dared not talk to reporters or NGOs of their prosecution.
One such case involved Budi Purwo Utomo, a young farmer from Kediri who learnt seed breeding techniques from books. He was accused by PT BISI of conducting unauthorised seed certification, trademark violation and copying breeding technique. This time BISI brought the case in two areas: Tulungagung, where the seeds were distributed and Kediri where Budi stayed. Budi was acquitted by the Tulungagung court, but still has to face the Kediri court. Unlike Tukirin, he is helped by lawyers from the Muhammadiyah University of Malang.
Legal flaws
Indonesian legal expert Sulistiono Kertawacana contends that the court verdicts had four serious legal flaws. First the courts said Tukirin and friends had copied BISI's patented corn-breeding method, based on Law No. 12/1992. In effect, though, this law does not have provisions on patent violation.
Secondly, if indeed this was a case of patent violation, the Trade Court should have been charged to handle the case, as provided for in Article l118 of Law No. 14/2001 on patents. Thirdly, Tukirin and Djumadi could only be tried for patent right violation if it had been proved that a violation had indeed occurred. Tukirin, as the one accused of patent right violation, should have been imprisoned but was not, while Djumadi as the seed seller was prosecuted. Yet, in an interview, PT BISI insisted that it was accusing Tukirin not of patent violation but of "illegal" certification of seeds.
Company response
For poor farmers like Tukirin, having to appear in court to answer the questions of strangers like a criminal while not understanding what he was actually charged with, may be more of a penalty than imprisonment itself. Thus the whole case was pursued to convey an important message: "Buy your seeds from the companies or else..."
This was partly confirmed in an interview with a staff member from PT BISI who admitted that they found it difficult to control what they termed as "piracy of seeds" by farmers. "They (farmers) have more faith in local seeds that they breed. It took us a long time and a lot of effort to persuade them to switch to our hybrid seeds," he said. The Tukirin case, according to him, was the tip of the iceberg of the seed piracy network. He said recently farmers in Kalimantan, Sumatra and Sulawesi who bought BISI-produced seeds complained of low quality, poor performance and longer planting period. PT BISI found that the seed supply came from East Java and therefore they suspected a seed piracy network may be operating in this province. When asked who was involved in the seed piracy, he declined to respond. He just said that if farmers were allowed to breed their own seeds, the efforts of PT BISI would go to waste.
The main issue for PT BISI and the seed supervision and certification agency was: how and from where did the farmers get the parent seeds? It is well known that when hybrid seeds are replanted (from the first harvest), plant performance declines up to 50%. Thus PT BISI and government officials suspected that farmers were given parent seeds by other parties. This is merely an unproven allegation, yet PT BISI can have its way in the courts.
Government's views
The provincial government of Nganjuk released a statement deploring PT BISI's actions. The statement said that it was the government's understanding that the dispute between the farmers and PT BISI had been settled and so the prosecution of farmers came as a surprise. It also revealed that the Nganjuk government did not get any financial gain from the project with BISI. They agreed to the project as a means to teach farmers modern seed breeding skills. Yet when the farmers mastered the breeding technique they were taken to court instead of being appreciated. However, the government of Nganjuk did not take any further step beyond issuing the statement.
The seed supervision and certification agency, for its part, blamed the farmers. In an interview with the authors, the head of the agency said that the moment the government enacted a piece of legislation, the citizens must know about it. In the case of farmers, extension officers would have told them about Law No. 12/1992 and the illegality of selling uncertified seeds. Thus, he said, Tukirin and his friends lied in court when they said that they did not know they had to register their seeds at the agency. He accused farmers of "wilfully pirating company seeds".
This is a very strange statement as, in an archipelago as vast and with many far-flung islands as Indonesia, even local government officials sometimes have no knowledge of legislation enacted in the capital city by the central government. In a workshop in East Nusa Tenggara, for instance, when asked if they knew about Law No. 29/2000 on plant variety protection, local officials from the agriculture service responded that they had no idea at all, or that they might have heard about it but did not know the substance of the law. When even local government officials are not aware of the laws, how can farmers be expected to fully understand the consequences of breeding seeds?
Future implications
There are three implications for the future. First, unlike the Percy Schmeiser case in Canada, the Tukirin case did not involve genetically modified seeds. But this is indicative of what could happen next once Indonesia allows corporate-produced genetically modified seeds to be distributed in Indonesia. The issue would then revolve not around farmers like Tukirin breeding seeds but farmers becoming victims of genetic contamination.
Secondly, having ratified the World Trade Organisation (WTO)'s TRIPS Agreement on intellectual property rights, Indonesia now has two laws that would make Tukirin-style prosecution possible: Law No. 29/2000 on plant variety protection and Law No. 14/2001 on patents as mentioned above. The first is based on the 1991 UPOV (International Union for the Protection of New Varieties of Plants) and the government treats this as the sui generis system for plant variety protection as mandated by the TRIPS Agreement. The second is based on the TRIPS Agreement, including a full translation of its controversial Article 27.3(b). Both will provide maximum intellectual property protection to companies and "intellectual" plant breeders, at the expense of farmers' rights over seeds. If Tukirin's case had been based on Law No. 29/2000, the court would have handed him an even more severe sentence.
Third, PT BISI is not a multinational in the real sense of the word even though it is a joint venture company with a domestic presence. In the future, farmers may have to face pressures from giant seed multinationals such as Monsanto or Syngenta. A different story might emerge then.
What says Tukirin?
Tukirin himself has several things to say about his case. First, he wonders why PT BISI felt he posed a competitive threat. "The quality of their seeds is much better than mine. They have a wider distribution network. I just want to make seeds for myself and some friends, get a little income. I am just a small fish. Why fear farmers like me?" he says. All he wanted to do was to cut production costs without harming anyone.
Secondly, he laments the lack of government support. He says government officials often stress that farmers must be skilled and independent. He wanted to be skilled in breeding seeds and to use his own seeds. Why then, he wonders, was he prosecuted for doing so? Also, he wants the government officials to communicate the legal aspects of seed breeding so that farmers can understand the system.
Thirdly, after the one year is over, he will continue to breed his own seeds. He says as long as he does it on his land, he feels he has a right to do so. He wants to continue experimenting on seeds bought in the shops to see if he can breed different seeds of better quality.
Hira Jhamtani is a Third World Network associate based in Bali.
Dey Patria is a researcher in Mojokerto, East Java who investigated this case
