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| Multinational
drug firms and Intellectual Property To change legislation that suppresses the fundamental rights of the people, guaranteed under the Constitution, the public is expected to petition the Supreme Court under the provisions of Article 121 (1) of the Constitution within one week after such a Bill being placed on the Order Paper of Parliament. The time limit of one week is often nullified and negated by unscrupulous ministers who place the controversial Bill on the Order Paper on Friday, so that Saturday and Sunday are inclusive of the seven days making it more difficult for the public to draft the petition and present it in court. The other method adopted by such designing politicians is to prevent and/or not permit and/or encourage the Government Printer not to publish sufficient number of copies of the Bill on the day the Bill is published in the Gazette so that anyone or even a group of persons interested in the welfare of the public or the fundamental rights of the people are often impeded and restricted in challenging such a Bill. Most petitioners believe sincerely that if the Bill becomes law it would be highly detrimental to the democratic process. Further some of the provisions would most probably be ultra vires of the constitution. It is an incontrovertible fact that several legislations have become law though they are intrinsically in variance with the Constitution. When the Bills were presented due to lack of public interest and awareness no one had challenged those Bills that were passed in Parliament. Recently a Bill to provide for the law relating to Intellectual Property was published in the Gazette dated April 25, 2003. The Bill was challenged in the Supreme Court by three petitioners under Article 121(1) of the Constitution. Even with regard to the Bill under reference the Petitioner had to plead to the Supreme Court that it was not available to the public though it was gazetted. While the Bill was included in the Order Paper on May, 21, 2003, it was only available for sale on May 27, 2003. The Intellectual Property Bill which was in the Order Paper is to provide a law relating to intellectual property and a procedure for registration, control and administration of the Intellectual Property Law. The Code of Intellectual Property which has been in operation for several years is to be repealed. The Bill in its present form has 213 sections and runs into 15 pages. If we are to examine the Bill very carefully, we would come to the conclusion that this Bill was presented in Parliament to appease the vast international conglomerates comprising the rich nations, multinationals, drug cartels that would profit immensely at the expense of poor nations and their people. The economies of Third World countries are controlled by the developed countries to an extent that until the time the Cold War ended, handouts were grudgingly distributed to the Third World to prevent revolution and the expansion of Communism in Asia and to prevent the domino theory from taking effect. After the end of the Cold War, with the establishment of a sole superpower, the economies of the Third World and developing countries tend to be controlled by many agencies affiliated to these superpowers. These agencies have their own methods of controlling the world economy. The International Monetary Fund (IMF) and the World Bank (WB) are two such agencies that control and mould the political thinking in these countries. It is no longer possible or viable to change the economic pattern of an existing regime that follows reverently the dictates of these two agencies, by a new regime, which has promised to help the poor who have suffered due to the faulty economic policies dictated by of these two agencies. Each year, other agencies are added to the list. It is piously believed that the United Nations makes rules for the better governance of countries which are developing. Apart from the UN, other agencies are formed and various new agreements and working papers are discussed; treaties formulated and signed in agreement with the developing countries. The World Trade Organization is one such organization. It is said to reduce distortions and impediments to international trade. Anyone would laud this concept and believe that the distortions in international trading relating to developing countries and developed countries would be looked into duly. For instance, the entire garment industry in Sri Lanka is dependent upon very oppressive tariff barriers and quota systems imposed on Sri Lankan exports to developed countries. The reality is the WTO is there to protect the rich nations, treating them on the same terms as poor nations. Not even countries like India, China or Russia could do much to reverse the negative impact that the treaties have on Third World countries. When the the Ministers of Commerce of all countries met at Doha to discuss the issues and impediments of the TRIPS Agreement created by the World Trade Organization (WTO), the Indian Commerce Minister said with disdain, "A WTO is not a global government and should not appropriate to itself what legitimately falls on the domain of national governments and Parliaments". The WTO formulated an agreement now known as the TRIPS Agreement, TRIPS being the acronym for Trade Related Aspects of Intellectual Property rights. The rationale of the Agreement stems from the desire that international trade needs to promote effective and adequate protection of intellectual property rights and ensure measures and procedures to enforce intellectual property rights that do not themselves become barriers to legitimate trade. We have become signatories to this international trade agreement. In order to ensure that the agreement is followed in Sri Lanka, the Bill on Intellectual Property law was tabled in Parliament mainly to comply with Sri Lanka's obligation under the TRIPS Agreement. In keeping with the international agreement the drafters of the Bill have rushed into Parliament with the Bill ignoring many aspects of the TRIPS agreement which is not in the interests and welfare of the public. In the process
of pleasing our masters in the WTO and helping the international
community to think positively about our bona fides, the poor undernourished,
malnourished people of Sri Lanka will be the ultimate victims and
sufferers. For example, Clause 83 and 84 Chapter XIV and XV provides for the rights of patents. The patent right is extended for 20 years. Section 84 provides for the owner of a patent the right to exploit the patent invention. The word "exploit" is defined in the Oxford dictionary as "to use or treat in an unfair and selfish manner to our own advantage or profit". The Bill has sanctioned and given a legal right to the patent holder to exploit the patent. The petitioner has contended that by these clauses the foreign patent holder of any product or process including medical drugs and the processes for their manufacture, control, the supply and price of such drugs will remove the power of the Sri Lankan authorities or citizens from obtaining medicinal drugs at the cheapest available price and/or from the source of their choice. This would obviously raise the price of drugs and the cheap alternatives will cease to be available and the poorer sections will be gravely prejudiced. In fact we have become so impatient to draft this Bill to satisfy the international authorities and have a positive impact of the foreign agencies that we have failed to include even mitigating features. For instance Article 30 and 31 of the TRIPS Agreement provides for the State to make provision for the use of a patent for the domestic market without the authority of the patent holder in certain situations like national emergencies. Article 30 of the TRIPS Agreement also provides for the limited exceptions to the patent rights taking into account legitimate interest of third parties. Article 31 permits the use of a patent without the authorization of the patent holder provided the law of the member country allows it. The DOHA declaration made provision for compulsory licensing and parallel imports of pharmaceutical drugs in national emergencies especially in the event of a public health crisis including HIV/AIDS, tuberculosis, malaria and other epidemics. Though the drafters of the Bill may not be aware, many countries even countries like Thailand gathered a number of important persons and called them the World Health Assembly. And this is what they said: "The World Health Organization (WHO) has noted a number of concerns expressed by many countries on the potential implementation of the agreement on the availability and accessibility of drugs. The concerns are more serious in countries where large sections of the population are living in absolute poverty with minimal access to basic healthcare needs including essential drugs. In most of the developed countries, 30 to 40% of the expenditure on healthcare is on drugs. Some may even spend more. The aim of the national health policy must be to ensure equitable access to essential drugs. This is in keeping with the fundamental rights of the people to healthcare. Now, the question arises: How can the issue of equitable access be addressed within the concept of globalization?" The petitioners who were interested in the welfare of the public with all odds against them rushed to the Supreme Court and the Court was able to strike down clauses which would make the multinational drug firms rich at the expense of the poor of the country. The question
of unbridled access to inexpensive medicinal drugs is a matter that
is riddled with the hydra head of drug cartels and their lackeys
in positions of power in the developed countries. Their power is
so immense that no amount of friendly persuasion or rational argument
will change their evil ways. It is up to us victims in the Third
World countries to address this matter. |
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