Other countries protected their share by legislating. Pakistan still has only a policy
The point is a simple one. When a new disease appears here, our laboratories take a sample of the virus or the
bacterium and send its genetic code, the sequence, to an international database. Foreign companies use that
sample and that code to make tests, vaccines and medicines, and we then buy the vaccine back at a price,
usually after the wealthy countries have taken what they need. When our sample goes abroad, what comes
back to us? That is the question now being settled in Geneva, in an annex to the Pandemic Agreement.
Pakistan has taken the correct position there. At the eighth meeting of the Intergovernmental Working Group,
reported on 14th September 2026, Pakistan, speaking for the Eastern Mediterranean Region, said that
goodwill and voluntary contributions cannot replace the link between access and benefit sharing, and that
legal certainty requires binding contracts. In a negotiation, however, weight comes not from the position
stated but from the law standing behind it. Three countries have shown what that law looks like.
One. Indonesia stopped the samples, and then legislated
In 2007 Indonesia stopped sharing its H5N1 bird flu samples with international bodies, because the vaccine
made from its own samples was being sold back to it at a price it could not meet. The step was criticised, but
it opened the argument. Indonesia has since moved the matter into statute: under Article 340 of Law No. 17 of
2023 and Regulation No. 28 of 2024, no biological material leaves the country without the permission of the
Minister of Health, and that permission issues only with a written material transfer agreement fixing the
sharing of benefits.
Two. Brazil fixed the share itself
Brazil’s Law No. 13.123 of 20th May 2015 covers micro-organisms and their sequences alike, and
deliberately keeps human genetic heritage outside its scope. The benefit is not left to negotiation after the
event: one per cent of net revenue is written into the law. Article 115 of Decree No. 8.772 of 2016 then opens
an emergency lane, so that research in an outbreak is not delayed, while the duty to share the benefit survives.
Brazil learned that lesson during the Zika epidemic of February 2016, and it is the balance Pakistan needs: the
science must not stop, and the country’s share must not die.
Three. South Africa was candid, and paid for it
On 24th November 2021 South African scientists told the world at once that they had found the Omicron
variant. The reward was a set of travel bans. The lesson is that a country which reports promptly must have
both protection and return written down in advance. South Africa’s own law, Chapter 6 of the Biodiversity
Act, 2004, already requires a permit, prior consent and a benefit-sharing agreement before material leaves,
and it excludes human genetic material. Malaysia took the same route in Act 795 of 2017, which punishes
unpermitted commercial access with up to ten years in prison.
What Pakistan is doing
Pakistan is the one country in this comparison which is negotiating without a statute. The Nagoya Protocol
has been in force for Pakistan since 21st February 2016. In the ten years since, no access and benefit sharing
law has been enacted, and the draft of the Ministry of Climate Change remains in preparation. The Protocol
requires a national focal point, a competent national authority, publication through the international Clearing-
House and compliance checkpoints. On the public record not one of them has been designated. The
consequence is direct: a foreign institution which takes a Pakistani pathogen or its sequence breaks no
Pakistani law, signs no terms, and owes us nothing.
The next fact is harder still. Our own National Genomic Surveillance Strategy for Priority Pathogens, 2025 to
2030, directs at paragraph 3.4 that pathogen genomic data shall be routinely submitted to the international
databases. It contains no provision for benefit, for attribution or for traceability. What we resist in Geneva, we
concede in Islamabad with our own hand. The controls which do exist, the national guidelines on human
biological material and the bioethics framework, carry no S.R.O. number and no Gazette notification, so they
bind Pakistani institutions alone and place no duty upon a foreign recipient. Upon human genomes the
position is worse: 173,303 Pakistani exomes and genomes already sit in the public database of the United
States, and the flow has not stopped.
All of this reaches the ordinary citizen, as everyone saw in 2021, when the vaccine went first to the wealthy
countries and our people waited in queues for months. Where doses, tests and technology are secured in
writing against the sample and the data, the next outbreak finds Pakistan standing upon its entitlement rather
than at the end of the queue. That is the difference between a law and a wish.
The old draft: the language of 2012 in the world of 2026
The draft presently put forward rests upon the plan of 2012. In that period the thing of value was a sample in a
vial. Today the thing of value is data. The world has changed in three ways since 2018. First, the sequence
travels and the sample stays: when the COVID-19 sequence was published in 2020, a vaccine design followed
within days, and nobody needed a vial from Pakistan. Secondly, a law written for physical samples alone is
now an empty page; the international argument upon digital sequence information opened in 2018, a
multilateral mechanism was agreed in 2022, and the Cali Fund was established in 2024, into which companies
pay a share of their profits. Thirdly, the Pandemic Agreement was adopted in 2025, and its annex is deciding
at this moment what a benefit is to mean.
If the old draft is passed, the loss falls upon the ordinary Pakistani. Its definitions do not reach data, so a
foreign body downloads the sequence and answers that it took no sample and accepted no condition. Without
traceability it cannot be proved that a medicine or a vaccine was built upon Pakistani material. If human
genomic data is not excluded in terms, it continues in the same flow. And because the old draft carries no link
to the annex of the Pandemic Agreement, there is no legal footing upon which to claim doses, tests or
technology when the next outbreak comes. In two lines: the old draft does not confer protection, it confers the
appearance of protection. What is required is a new law, with new definitions, which settles in plain words the
treatment of sequence data, traceability, the exclusion of human genomes, and the link with the international
annex.
What should be done
The first step needs no legislation and can be taken today: the Ministry should issue the data-sharing rules
contemplated by paragraph 3.4 of the Surveillance Strategy, making every foreign submission subject to
attribution, traceability and benefit sharing. Secondly, the National Public Health Act, 2026 should be carried
through, section 107 of which fixes the terms upon which pathogen specimens and sequence data may be sent
abroad, requires every despatch to be registered with the National Institute of Health, and requires human
sequence reads to be cleared first. Thirdly, the access and benefit sharing law should be brought forward with
the focal point, the competent authority and the checkpoints named in it. Fourthly, since health is a provincial
subject, the federal law should rest upon Entry 3 of Part I of the Federal Legislative List and bring the
Provinces in under Article 144 of the Constitution. Fifthly, the draft of 2012 should not be passed as it stands;
it should be rewritten upon the new definitions. And our delegation at Geneva, the Ministry of National
Health Services, the Ministry of Climate Change and the National Institute of Health should argue one written
position.
The annex may be adopted at the World Health Assembly next year. Whatever definition of a benefit is
written into it becomes the operative law for Pakistan. If we hold no law of our own upon that day, our
position will remain a moral one and our share will be credited to somebody else. The order is therefore
settled: the law first, and then the negotiation.
Syed Aun Mohammed Bokhari, Barrister-at-Law of Lincoln’s Inn, Advocate of the High Courts, Founding Partner,
Mohammedan Law Associates, Islamabad
aun@mohammedan.law
