The right to life is a basic human right. Provision of health facilities; including availability of medicines effective in both efficacy and affordability is a primary concern for the government, responsible to safeguard the basic rights of its civilians. Right to life is directly linked with the health of a human being; so enjoying the highest attainable health, its rehabilitation and access to affordable treatment facilities is one the fundamental human rights as well.

Right to health is enshrined in several international treaties recognized and ratified by states throughout the world, [1] like, Article 12 of the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR). It is a very important article, at one side it recognizes the right of everyone to highest attainable standard of health and at the other side it obliges the state parties to take some solid steps for the prevention, treatment and control of endemic, epidemic, occupational and other diseases and to create conditions for assuring medical service and attention to all without discrimination of any kind. [2] Other international instruments include but is not limited to Article 12 of the Convention on Elimination of all Forms of Discrimination against Women, 1979 (CEDAW), Article 24 of the Convention on the Rights of the Child, 1989 (CRC), Article 5 of  the Convention on the Elimination of all forms of Racial Discrimination, 1965 (ICERD), Article 25 of the Convention on the Rights of Persons with Disabilities, 2006 (CRPD), Article 17 of the Cairo Declaration on Human Rights in Islam, 1990,  Article 55(b) and 62(2) of UN charter, and Preambles to the Constitutions of the World Health Organization, 1946 (WHO) and  International Labor Organization, 1944 (ILO).

World Health Organization (WHO) has been advocating for access to essential medicines to people at all time at prices that individual and community could afford. Nowadays, despite large scale governmental infrastructure investment to improve their basic public health services, lack of access to essential medicines remains a crucial health problem in developing countries. [3]

High medicine prices and low affordability are key impediments to access to medical treatment in third world countries. Certainly, in those countries where the public sector does not provide adequate medical facilities and majority of people are compelled to buy medicines through out of pocket (OOP) expenditure, the high cost of medicines means that an illness in a family exposes that family to the risk of catastrophic expenditure and starvation. [4] People living with chronic diseases face additional problems of affordability due to the lifelong nature of treatment required. Spending a day’s wages as a onetime expenditure to treat a disease may not be within reach of most of the people and affording such a treatment on regular basis could be beyond the financial capacity of public at large. [5]

Article 38 of “The Constitution of Pakistan, 1973” obligates state authorities to ensure the well being of the citizens of Pakistan. Clause “d” of the Article 38 says that “The State shall provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment”.[6]  Under provision of Article 38(d) of the constitution, it is the primary duty of the Pakistani government to provide people basic necessities of life, including effective and affordable medicines. [7]

Right to life and also dignity of man is guaranteed by the Constitution under Article 9 and 14 respectively; reading of both the articles together transpires that a person could not be said to have a dignified living if his right to life is below the basic and bare necessities of shelter, food clothing, education, health care, unpolluted environment and clean atmosphere. [8]

Article 9 of the Constitution has granted protection to human life while covering all the facets of human existence; state should not only refrain from intentional and unlawful deprivation of life but should also take necessary steps to safeguard life of those within its jurisdiction. In a welfare State, it is obligatory on government to provide adequate medical facilities to its citizens; such obligation is discharged by Government by establishing and running hospital and health care centers and proving medicines to those seeking to avail these facilities.  Government is morally and constitutionally bound to provide medical assistance to those in need, failure of which would result in violation of one’s basic human right. [9]. Providing adequate medical facilities for people was an essential part of obligations undertaken by government in a welfare State, failure on the part of government hospital to provide timely medical treatment to a person in need of such treatment would result in violation of his right to life guaranteed under the Constitution. [10]

Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) grants to the holder of intellectual property a bundle of rights to prevent others from making use of it. For example, a patent grants to the patentee right to exclude others from making, using, selling, offering for sale, or importing the patented invention till the expiration of term of the patent, which is 20 years.  Article 30 of the TRIPS agreement provides exception to the general rule, according to which a member states can issue compulsory license infringing the rights of patentee and the local pharmaceutical corporations are permitted to make cheaper generic version of medicines against the will of the patent holder[11]. But Article 31(f) puts the condition that the products manufactured under compulsory license must be for domestic use only.[12]The issue gets complicated in poor states where they have no Pharmaceutical industry, therefore, the World Trade Organization (WTO) decision of 30 August 2003 by the name of Doha Declaration on the TRIPS Agreement, seeks to overcome this difficulty by allowing WTO members to grant compulsory licenses for the production and sale of patented pharmaceutical products to states with insufficient or no manufacturing capacity.

We can clearly see that the medicine prices are very high in Pakistan as compared to our neighbour states; and the price further elevates in case of patented drugs. In October 2012, the prices of some lifesaving drugs increased by 5-10%.[13] To tackle the alarming situation of unaffordable treatment, Pakistan has two choices; either to go for parallel importation and put its local pharmaceutical corporation’s business at stake or issue compulsory licenses and manufacture generic version of expensive patented drugs.

Brazil, India, Thailand, United Stated, Canada, Germany, Malaysia, Indonesia and Uganda have started to challenge pharmaceutical patents, arguing that human lives are more important than patents, international trade laws, and the economic interest of the pharmaceutical industry.[14] Anti-retroviral therapy has long been affordable for people suffering from HIV/AIDS in developing countries, and proponents of generic antiviral drugs argue that the human need justifies the breach of patent law. Seeing the situation, some of the richest countries of the world like Canada, United Sates, Germany etc who have been opposing compulsory licenses throughout the time, issued licenses in the best interest of their nationals.

In March 2012 the Indian government granted its first ever compulsory license and allowed Natco pharma to manufacture and sell sorafenib, a drug which is effective in the fight against liver and kidney cancer. The generic drug costs Rs. 165 for a pack of 120 tablets while the Bayer pharmaceuticals company was charging Rs. 280,000 for the branded drug with same efficacy. [15] Pakistan is also party to TRIPS agreement but ironically, the option of compulsory license has never been used.

Pakistan Pharmaceutical Manufacturers Association (PPMA), a representative group of local pharmaceutical industry is trying hard competing with Pharma Bureau Pakistan, a representative body of the Multinational pharmaceuticals operating in Pakistan. PPMA is breathing its last competing the Globalists in an affordable price, yet striving to have a good therapeutic efficacy. Price and efficacy are the two main arguments they use against each other. The former claiming for affordable products while the later drives the healthcare system beyond affordability in the name of quality services and intellectual property rights. The current system governing the trade in patent protected pharmaceutical, privileges the right of large multinational companies to continue to make profit as against the right of poor people to receive treatment for fatal diseases.[16] Big pharmaceutical corporations justify the high prices for patented drugs due to the excessive cost of developing new drugs; this rationale is based on the fundamental principle “high risk deserves high reward”.[17] Adopting such a notion intends to encourage investment of efforts, time and resources in making inventions, especially patent is considered as labor of hard work as well as an incentive for further research to develop new and improved products. Patent is therefore an acceptable evil in order to foster innovation; however in some extra ordinary situation such an exclusive right could be breached. For example, in case of outbreak of epidemic disease, article 30 of the TRIPS agreement provides exception to the general rule, according to which a member states can issue compulsory license infringing the rights of patentee and the local pharmaceutical corporations are permitted to make cheaper generic version of medicines against the will of the patent holder.

While it is clear now that many developing as well as developed WTO member countries have granted compulsory licenses for patented essential medicines, and many more would be considering doing so, it is crucial that Pakistan undertakes compulsory licensing to ensure availability of essential drugs in the domestic markets at affordable prices as lives and health of millions of its people is suffering from fatal diseases.

References:

[1] WHO and Health Action International, Measuring Medicine Prices, Availability, Affordability and Price Components (Geneva: WHO, 2008), 1. http://www.who.int/medicines/areas/access/medicines_prices08/en/index.html (Last accessed September 12, 2012).

[2]  ICESCR, Art 12.

[3]  Jakkrit Kuanpoth, Patent Rights in Pharmaceuticals in Developing Countries: Major Challenges for the Future (UK: Edward Elgar Publishing, 2010), 163

[4]  Alexandra cameral et al., The World Medicines Situation 2011: Medicines Prices, Availability and Affordability (Switzerland: WHO, 2011), 2 http://apps.who.int/medicinedocs/en/m/abstract/Js18065en/ (Last accessed August 23, 2012)

[5]  Ibid, 9

[6]The Constitution of Islamic Republic of Pakistan, 1973, Art. 38 (d)

[7]2004 YLR 2077, Nazim, U.C. Allah Bachayo Shore versus The State

[8] PLD 1994 S.C 693. Shehla Zia versus Wapda

[9] M. Mahmood , The Constitution of Islamic Republic of Pakistan, 1973, (Lahore: Pakistan Law Times Publishers, 2010), 209

[10] 2007 PLD 346 Lahore, Muhammad and Ahmad versus Government of Pakistan

[11]  TRIPS Agreement 1995, Art. 30

[12]  Ibid, Art. 31(f)

[13]  http://tribune.com.pk/story/463468/no-increase-in-drug-prices-since-april-says-awan/ (Last accessed  November  15, 2012)

[14] https://www.dawn.com/news/241360 (Last accessed, July 15, 2017)

[15]Anand Kumar, “Low cost version of patent medicines”, Inpaper Magzine , May 14, 2012.  http://dawn.com/2012/05/14/low-cost-version-of-patent-medicines/ (Last accessed  August 28, 2012)

[16] Christopher May and Susan K. Sell, Intellectual Property Rights: A Critical History (New York: Lynne Rienner Publishers, 2006), 3

[17] Peg Tittle, Ethical Issues in Business: Inquiries, Cases, and Readings ( Canada: Broadview press,    2000), 444