The protection of intellectual property rights, particularly patents, is essential for promoting innovation and incentivizing research. However, these rights are not absolute. In situations where public health and safety are at risk, the state has both the moral and legal obligation to intervene. The doctrine of compulsory licensing is one such mechanism that balances private rights with public welfare.
Pakistan, being a developing country with a fragile healthcare infrastructure, faces recurring challenges in ensuring the availability and affordability of essential medicines. The high cost of patented drugs, combined with artificial shortages created through hoarding or limited supply, often prevents access to lifesaving treatments. In such circumstances, the government must act decisively to protect its citizens.
The Constitution of Pakistan, 1973, under Article 9, guarantees the right to life and obligates the state to safeguard the lives of its people. This responsibility extends to ensuring the availability of essential medicines at affordable prices. In line with this, the Patent Ordinance 2000, under Section 58, empowers the federal government to grant compulsory licenses “in the public interest” or “for health purposes.” This provision allows the government to authorize local pharmaceutical manufacturers to produce patented medicines without the consent of the patent holder, thereby making them accessible at lower prices.
Similarly, the Drug Regulatory Authority of Pakistan Act, 2012 (DRAP Act) provides statutory tools to stabilize supply, regulate pricing, and enforce measures necessary for the protection of public health. Under Section 7, the federal government has the authority to ensure a stable supply of medicines, procure foreign expertise, and fix prices in the public interest.
Judicial interpretation has also reinforced this principle. In Getz Pharma vs. Federation of Pakistan (PLD 2017 Sindh 157), the court held that when a drug is required to treat a large segment of the population, even if it is under patent protection, the federal government has the power to invoke Section 58 of the Patent Ordinance and issue a compulsory license to local manufacturers only in the public interest.
At the international level, compulsory licensing is also recognized under the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights). Article 31 allows member states to issue compulsory licenses “in cases of national emergency, other circumstances of extreme urgency, or in cases of public non-commercial use.” This framework empowers states to act in the interest of public health, preventing the abuse of patent rights.
No doubt, throughout the history of Pakistan, every government has faced challenges, but the present circumstances demand urgent and decisive action. Setting aside excuses and difficulties, the state must prioritize the welfare of its citizens, as it is a proven truth that where there is a will, there is always a way. The government must demonstrate its resolve by exercising its constitutional and statutory powers in the best interest of the people. One such meaningful course is the effective use of compulsory licensing of patents, which provides a lawful mechanism to ensure the availability of essential medicines and medical supplies at affordable rates.
By invoking the provisions of the Patent Ordinance 2000, the DRAP Act 2012, and international commitments under the TRIPS Agreement, the government can establish its writ, protect public health, and fulfill its moral duty to safeguard the lives of Pakistanis. Compulsory Licensing offers Pakistan a practical and lawful mechanism to improve access to affordable medicines while upholding the constitutional right to health. The country continues to grapple with a heavy burden of disease, weak healthcare infrastructure, and the soaring costs of patented drugs. These issues disproportionately affect low-income communities, leaving them with little to no access to essential treatments under the existing healthcare model.
Although Pakistan has faced several health emergencies in recent decades, the provisions for compulsory licensing have not yet been meaningfully applied. Experiences from other countries in the region show that CL can serve as a powerful tool to close healthcare gaps and promote equitable access to life-saving drugs. While Pakistan’s Patent Ordinance is consistent with the TRIPS Agreement and the Doha Declaration on Public Health, the government has yet to fully utilize the potential of compulsory licensing.
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