Por: Kishanie S. Fernando
Daily Mirror
With the Supreme Court striking down several patent rights provisions in the abortive Intellectual Property Bill as a violation of the people’s fundamental rights, top officials and health activists met yesterday to discuss proposals for a new Bill.
The aim was to ensure that millions of Sri Lankans would be able to obtain safe and efficacious drugs at affordable prices and that the rights of patients were given priority over the patent rights of global companies.
This came after the Supreme Court in a powerful act of judicial activism reminded government officials that their main duty was to protect the rights of the people and not of global companies.
Ministry Officials, doctors, pharmacists, local manufacturers, lawyers, and health activists took part in yesterday’s motivating dialogue at the BMICH, with the focus on the "TRIPS Agreement, the Intellectual Property Bill and Public Health.
The driving force behind the move to put patients rights before patent rights was Dr. K. Balasubramaniam, Advisor and Coordinator of Health Action International Asia Pacific. He said the long term objective of the seminar was to ensure that Sri Lanka had regular access to quality medicines which were safe and effective at prices consumers in Sri Lanka could afford.
However this is dependent on the National Patent Law which is the policy instrument to make available low cost quality drugs and also develop the national pharmaceutical industry. The Intellectual Property Bill 2003 including the patent laws was introduced to meet Sri Lanka’s international obligations under various conventions and the World Trade Organisation (WTO) agreement on the Trade Related aspects of Intellectual Property Rights (TRIPS).
Attorney M. Sumathiran discussed the Supreme Court’s June 17 decision which struck down the Intellectual Property Bill as inconsistent with the Constitution of Sri Lanka. The judges determined that several clauses of the Bill dealing with patents were inconsistent with Article 12 (1), which guaranteed equal rights as well as equal protection. Therefore the provisions of the TRIPS agreement cannot be applicable to developed and developing countries equally.
The Judges said there could not be equality among those who were unequal pointing out at there was no level playing field when powerful multi-national companies were pitted against defenceless people.
It was observed that although the TRIPS agreement strengthens the position of the patent holders, who are predominantly based in developed countries, it also provides for mitigatory measures to ensure patients are treated in a more ‘equitable’ manner.
These measures were deliberately included in the TRIPS agreement to minimise abuse of the monopoly rights granted under a patent and to ensure that the needs of public health are met.
While these measures are widely prevalent in other countries, Sri Lanka has failed to fulfill its international obligations and the health needs of the public, by not incorporating these mitigatory measures into the final Draft Bill.
Dr. D. M. Karunaratne, Director of the National Intellectual Property Office replying to the allegations that the provision for compulsory licensing was removed at the last minute from the Bill said in 1998 the Committee on Intellectual Property removed it because it could be a deterrent to foreign investment.
Attorney Sharmila Anthony of the Centre for Policy Alternatives said the whole process of presenting the Bill lacked in transparency.
She said although the Bill was published in the gazette on April 25 this year, and despite repeated inquiries and requests, it was only made available to the public on May 26, leaving just two days for the public to examine the Bill and to challenge it for any inconsistencies with the Constitution.
Rohan Edirisinghe of the Centre for Policy Alternatives reiterating the position said a mere publication of an advertisement in the paper calling for suggestions for the draft Bill was not adequate notice. The final version of the Bill should have been made available for public scrutiny.
He also said that the State had an obligation under International law, TRIPs and the Constitution. The Attorney Generals Department in particular has a responsibility to ensure that the state obligations under human rights are protected in draft legislation of this kind.
Gothami Indikadahena, Deputy Director of Commerce made a presentation on TRIPS consistent provisions to safe guard public health objectives of the Government including some proposed amendments in conformity with the decision of the Supreme Court.
Prof. Tuly de Silva, Past President of the Pharmaceutical Society of Sri Lanka said if the new Bill with TRIPS consistent provisions on parallel importing and compulsory licensing becomes law, health professionals and consumers need to be assured that the drugs that are put on the market are of good quality safe and effective He stressed that quality control should be sustained at the point of manufacture, transport and sale. This cannot be done by Drug control authorities due to the lack of qualified graduate pharmacists and also due to some 8,000 varieties of drugs being imported. (According to Professor Senaka Bibile only 300-400 varieties would be sufficient). He stressed that public health protection should not be guided by multi nationals. Sri Lanka cannot afford to go to international courts to protect its rights and as such all measures should be taken for protection in the new laws.
The seminar was organized by the Ministry of Health in collaboration with the Department of Commerce and HAIAP with the support of the South East Asia Regional Office of the World Health Organisation.
Fonte: http://www.dailymirror.lk/2003/07/05/News/5.html
Consultado em 05/03/2007