A judgment for the poor of the world

The Island Asia News Network Colombo, Sri Lanka

The end of empires and colonialism does not mean the end of imperialism or colonialism, Marxists, historians and the like tell us. New forms of imperialism and neo-colonialism manifest themselves in various ways, it is claimed.

Whatever the "ism" that holds sway in the world today, it is quite apparent that the Developed World, former colonial empires, their allies and descendants -- have a stranglehold over the Third World -- poor nations most of whom have been former colonies -- both politically and economically.

As the Cold War was thawing away, we witnessed the emergence of a sudden desire of these developed countries for establishment of democracy in the Third World tied up to human rights, development of globalised free trade with patent rights, labour rights protection of the world environment etc. All these have resulted in shackles being placed on a developing world struggling to achieve basic standards of living.

The World Trade Organization (WTO) came into being immediately after the end of the Cold War was meant to promote free trade to the benefit of all countries. While poor nations such as Sri Lanka have brought down trade barriers and permitted free flow of imports for over a decade, we still do not see substantial trade benefits. In the wake of the WTO came the Agreement on Trade Agreement on Property Rights (TRIPS) which all countries had to abide with.

It conferred terrific advantages on the Industrialized World, which held the great majority of patents that included not only industrial goods but also attempted to patent commodities vital for the survival of the poor of the world such as pharmaceuticals and even agricultural products.

The greatest human tragedy that occurred in the 1990s was the global spread of AIDS killing millions, most of the victims being Africans and Asians. Through rapid development of anti-AID drugs, western nations were able to bring AIDS under control but even today millions of poor Asian and Africans are dying of the disease because they cannot afford the expensive anti-AID drugs manufactured by the Developed World.

Following very strong protests by Third World countries such as South Africa, concessions were made under the TRIPS Agreement and later at the Doha Conference which provided mitigatory clauses from patents to Third World countries under certain circumstances.

Recently, in Sri Lanka under very strange circumstances, an Intellectual Property Act that was gazetted and placed on the Order Paper of parliament did not include the mitigatory clauses provided in the TRIPs Agreement as well as the recent Doha declaration. That omission would have denied Sri Lankan consumers access to cheap drugs.

The Bill also ignored certain provisions that could have led to the abuse and exploitation of micro organisms found in this country by drug companies through patents.

It is indeed strange why that the mitigatory clauses that would have benefited Sri Lankans had earlier been included in the draft of the bill, but dropped in the bill gazetted and presented to parliament.

A public explanation is required why these provisions that were meant to protect the interests of the Sri Lankan public, but to the detriment of the pharmaceutical industry, were dropped in the gazetted bill.

This bill was successfully challenged in the Supreme Court by public interest lawyers -- two of them columnists of The Island -- Ruana Rajapakse and Jagath Gunawardena. The Supreme Court comprising Chief Justice Sarath N Silva, Justicer Shirani Bandaranayake and Justice J.A. N. de Silva in a historic judgment held that the refusal of the Attorney General's representative to consider amendments suggested by the petitioners left the court no option but to rule that certain clauses objected to were inconsistent with the constitution.

The judges noted that the TRIPS Agreement included several mitigatory measures but none of these measures had been included in the Bill. The TRIPs Agreement clearly specifies that such mitigatory provisions had been incorporated, as the agreement would be applicable to developed as well as developing nations,

They went on to point out that the WTO had recognized the inequality of nations in respect to TRIPS by prescribing a staggered timeframe for implementation of the agreement among countries of different economic levels.

Holding that TRIPS would be applicable to countries developed as well as developing which cannot be treated as equals and noting that article 12 (1) of the Constitution not only guarantees equality before the law but also provides equal protection of the law the judges held that just as much equals should not be placed unequally, at the same time, unequals should not be treated as equals.

The court also held that Article 12 (1) guarantees protection not only from the executive but also from the legislature and went on to say: Although the legislature has a wide choice in articulation of subject matter of its laws, it should not treat unequal as equals and equals as unequal.

This judgment is significant particularly in view of the fact that it has brought the rights of people of the Developed World and the Third World to a level playing field: In economic affairs they cannot be treated as equals, but as human beings they are equals.