KARACHI -  A two-member bench of the Sindh High Court has passed a landmark judgment to lay down a detailed mechanism for fixing prices of essential medicines in the country, especially medicines for hepatitis C.

The bench comprising Chief Justice Sajjad Ali Shah and Justice Zulfiqar Khan concluded that access to affordable medicine is a fundamental right protected under Articles 9 and 14 of the country’s Constitution.

The case was originated on the complaint of arbitrary fixation of the price of Sofosbuvir medicine being provided in the country for three-month course of hepatitis C treatment at a high price of Rs 114,000 by only one company, whereas the said drug is available in the neighbouring country at one-fifth of that price.

The court issued directions that generic companies should be immediately granted licenses to either import or produce the same medicine in Pakistan for their requested price of Rs 17,604.

The court was informed that there were more than 13 million hepatitis C sufferers in Pakistan that ranked it No 2 in the world on account of prevalence of this disease.

The court observed that while generic manufacturers were waiting for issuance of licenses, one company was allowed by the drug authorities concerned to import patented molecule and sell this medicine at extremely higher prices. 

This, the court held, was against public interest and in violation of public rights to have medicines provided to them at affordable prices and that it also failed to take benefits provided under Trade Related Aspects of Intellectual Property Rights (TRIPs) agreement of which Pakistan is a member.

According to the petition, the company which was granted sole license to import and sell this medicine pocketed more than Rs 5 billion by this single product.

The court while at one point held that the mechanism used for setting up of the prices of such an essential and lifesaving drug was not transparently followed, on the other hand questioned when other companies were willing to bring this medicine in Pakistan at one-fifth of the cost, why the drug authorities did not allow those generic companies to import the said medicine.

Under the price fixation formula, it is the duty of the authorities concerned to compare price of the same medicine in the neighbouring countries before it fixes price of any medicine, which the court held was not followed.

In the judgment questions were raised as to when the said medicine was available at one-fifth price in a neighbouring country, why the medicine was allowed to be imported at extremely high price and that too, by granting monopoly to one company to import this essential medicine.

The judgment also highlighted that there was a proper mechanism available under the patent laws, in terms of which if a manufacturer of essential medicine was not catering to the demand of large public, or selling it at an unreasonably high price, the authorities concerned must before granting any monopoly to a person, use the mechanism provided under Section 58 of the Patent Ordinance by allowing generics compulsory licensing, so that drugs could be made available at very reasonable price.

In the last part of the judgment, the court while reemphasising that the country’s Constitution has no explicit recognition to right to health, maintained since the right to life is protected under Article 9 and dignity of man is provided under Article 14, therefore, these two rights when put together, give birth to the right to health. This right is enshrined in many constitutions of countries around the globe.

Pakistan being also a member of International Covenant on Economic, Social and Cultural rights is bound to provide essential drugs at affordable prices, the judgement observed.