CONTENTS
INTRODUCTION
IN Bangladesh, the people who have to buy the various commodities on sale in the market for their consumption should, at least, according to definition, be called consumers. However, when it comes to the rights that define a consumer in modern parlance, one is really at a loss about how to define the consuming public of Bangladesh. For compared to societies where rights of the consumer folk are duly protected, in Bangladesh they are the neglected lot. In the prevailing situation, the traders, whether retailers or wholesalers, exercise and enjoy all the powers, often to the chagrin of the consumers. Such a state of affairs has been going on for too long in Bangladesh. As a consequence, a kind of imbalance has been created in society so much so that the consumer public has been left entirely to the whims and caprices of a section of unscrupulous traders.
DESCRIPTION
THREE ASPECT OF CNSUMER RIGHTS
There are three aspects of consumer rights protection, which every country must consider.
First, the aspect of ‘voluntary protection’ which means that consumers themselves would voluntarily set up associations and/or organisations to safeguard their own rights and interests. These associations/orgnaisations generally work as pressure groups on the government for consumer rights issues. There are many such voluntary organisations in India, Pakistan, Sri Lanka and other countries of the world. In Bangladesh, the Consumers’ Association of Bangladesh (CAB) was established in 1978.
Second, the aspect of ‘institutional protection’. By establishing national institutions to safeguard and promote consumer rights of citizens this aspect of consumers’ protection can be ensured. For example, in 1914 the Federal Trade Commission, in 1927 the Food and Drug Administration and in 1970 the National High Traffic Administration were set up in the USA; the United Kingdom established the office of Director-General of Fair Trading; Sweden set up the Consumer Agency KOV and Consumer Ombudsman KO; India established National Consumer Protection Council, various State Consumer Protection Councils, National Consumer Disputes Redressal Commission with State Commissions and District Forums; Pakistan set up the Islamabad Consumer Protection Council; Sri Lanka and Nepal set up the office of the Commissioner of Internal Trade and the Consumer Protection Council respectively.
Third, the aspect of ‘statutory protection’, which can be guaranteed by enacting relevant laws for protecting the rights and interests of the consumers. Many countries of the world, including those in Asia, have already enacted comprehensive laws in this regard. For example, the Consumer Protection Fundamental Act 1968 in Japan, Consumer Protection Act 1979 in both Thailand and Sri Lanka, Consumer Protection Act 1986 in India, Consumer Act of the Philippines 1990 in the Phillippines, Islamabad Consumers Protection Act 1995 in Pakistan, Consumer Protection Act 1998 in Nepal, The Law on Consumer Protection 1999 in Indonesia and Consumer Protection Act 1999 in Malaysia were enacted. However, Bangladesh is yet to enact such a comprehensive Consumers Protection Act.
Current status of legal protection to consumers in Bangladesh
It has already been mentioned that the current system of legal protection to the consumers in Bangladesh is inadequate and outdated. Further whatever little laws are available, they are not strictly enforced for the protection of the rights of the general consumers. The consumers in Bangladesh are thus deprived of their rights at every sphere of their lives.
The Constitution of Bangladesh, under its ‘fundamental principles of state policy’ part, recognises the rights of consumers to a limited extent. The provisions of consumer protection can be found at Articles 15 and 18 of the Constitution. However, these provisions are mainly focussed on the vital issues of ‘health’ and ‘food’ than on other consumer rights. Moreover, the said provisions are mentioned under the ‘fundamental principles of state policy’ part and not under the ‘fundamental rights’ part of the Constitution. Hence, they remain mostly non-enforceable in the courts of law.
Further, there are certain legislations, part of which has got direct bearings on consumer protection. For example, sections 264-267, 272-276, 478-483 of the Bangladesh Penal Code 1860, the Poison Act 1919, the Dangerous Drug Act 1930, the Trade Mark Act 1940, the Animals Slaughter (Restriction) and Meat Act 1957, the Special Powers Act 1974, the Standards of Weights and Measures Ordinance 1982, the Bangladesh Standards and Testing Institute Ordinance 1985, the Narcotics (Control) Act 1990, and the Safe Blood Transfusion Act 2002, etc.
(a) The current laws are faulty and do not meet the present needs;
(b) Under the existing legal regime, the aggrieved consumers themselves cannot go to the court to sue against the violators. It is only the designated government officials empowered under these laws, who can initiate and sue against the violators.
(c) The provisions of penalty or punishment under the current laws are so negligible that nobody cares to abide by such laws; and
(d) Finally, the laws are not effectively enforced.
Historical background of consumer rights
The root of consumer rights protection Laws is found in the religious books. In the Bible, it is mentioned „to be good to one?s neighbour?. In Islam, a list of rights and duties are mentioned in the holy Qura?n to protect consumer?s rights. Islam prohibits falsification in representing goods; directs to use proper weight and measurement instruments, not to involve in usury; prohibits hoarding and haram food and inspires and directs to eat and drink halal foodsi. Islamic law enumerates guidelines for good trade practices.
However, it would not be improper to claim that the concept and rules of consumer protection primarily evolved within the system of common law.
If we go further into the history, we shall see that a set of rights were enumerated in the Twelve tables and also in the ancient Code of human civilization, the Hammurabi Code, that ultimately protects consumers from the fraudulent and negligent activities of the seller, manufacturer, builder, lender, service provider, physician etciv.
In Bangladesh, the consumer rights protection Law is purely a new-one. In 2006, a draft law was prepared but not presented before the parliament. The Non-party Care-taker Government in 2007 took the initiative to pass a law on Consumer rights under the pressure of NGO?s and civil societies. The president finally promulgated the “Consumer Rights Protection Ordinance in 2008. The Ordinance became ineffective and invalid for not presenting within 30 days for its approval by the Parliament after the elected government came to the power. And finally, the Government enacted the Consumer Rights Protection Act, 2009v with a little modification of the previous Ordinance.
Concept of consumer rights protection Law
According to a leading European author on the subject, consumer law comprises “the body of standards, rules and instruments representing the juridical fruit borne by the various efforts that have been made to secure or improve the protection of the consumer on the economic market and to promote the interests of the consumervi” to establish a balance of power between consumers and their economic partners or, probably more realistically, to define the means whereby the existing imbalance can be reduced.
In a narrower sense, consumer law “focuses mainly on citizens entering transactions to obtain products and services from commercial enterprises…vii”.
It is now accepted in Sweden and other Scandinavian countries that the “legal consumer concept must be confined to private persons who are acquiring goods, services or anything else of value mainly for their own use and not for resale or use in businessviii.”
Importance of the protection of consumer rights
It is now universally acknowledges that the observance of basic human rights is the cornerstone of peace and security for all nations. A consumer right is considered as a basic human rights as part of right to life. Many European countries have already inserted „consumer rights? in their constitution for giving special preferences e.g. Spain.
The constitution of Bangladesh enshrines „right to life? as a fundamental right that indirectly protects consumer rights. The constitution also states that it is the fundamental responsibility of the State to ensure the basic necessities of life, including food, clothing, shelter, education and medical care with special regard to public health and morality.
In this digital era, the world is considered as a global village. So, concern for consumer rights rarely begins or ends at any single nations boundaries, and effective action to protect and promote consumer rights, whether at home or abroad, can be furthered by the imaginative use of national, regional or international techniques. In the European Countries a consumer?s right is protected through common directives applicable equally for all the EU nations. The World Trade Organisations (WTO) has a great role in regulating trade affairs through different agreements among various nations. The United Nations (UN) has adopted guidelines for the protection of consumer rights.
It is widely accepted by the scholars that „trade and business? relates to the socio-economic and religious conditions of a particular community. Bangladesh, a developing country with over population, is dependant upon the foreign countries for its essential commodities and imports huge quantities of food, cosmetic and essential products every year especially from India, Japan, China, the USA and the EU countries. It has very good relations with the Middle East countries and earns huge foreign exchanges by exporting goods, medicines and apparels.
The religious prohibition on consumption of some food and food items has a great impact over consumer rights. It is the prime responsibility of the state to ensure all those rights to its citizens.
So, the importance of the protection of consumer rights carries a great value towards humanity. To ensure security and safety in life, the consumer rights protection related Laws should be effectively enforced. The number of immature and unnatural death will be reduced if the consumer rights are duly ensured. Effective enforcement of consumer rights shall impact widely on economic progress in national and international level. The consumer related laws should be enforced equally for all the citizens irrespective of their nationalism or race, sex, colour, language, religion etc.
Consumer rights Protection under the different Laws of Bangladesh
The term „consumer? is used in different senses. The right of a consumer has got recognition by the Government only in 2009 with the enactment of the “Consumer Rights Protection Act, 2009.” Before the enactment, a set of consumer rights were mentioned in different Laws in a fragmented way. In Bangladesh, consumers can be divided into two types: (i) service consumer and (ii) product consumer.
In the opinion of Professor Ulf Bernitz, the term „consumer? indicates to a person who purchases goods “mainly for private use and which are sold in the course of the merchant?s professional activities.”
In the UK, the Consumer Protection from Unfair Trading Regulations 2008 states that“consumer” means any individual who in relation to a commercial practice is acting for purposes which are outside his business;
Section-2 (19) of the Consumer Rights Protection Act, 2009 in Bangladesh states the definition of consumer as follows:
Consumer” means any person who:
(a) Except for the purpose of resale and commercial purpose-
i) purchases any product by payment of a price or promise to pay of a price;
ii) purchases any product by partly paid and partly promised; or
iii) purchases any product with the promise of paying price in extended term or by installments;
(b) uses the product purchased under clause (a) with the consent of the purchaser;
(c) who, after purchasing a product, uses it commercially for the purpose of making a living by self-employed;
(d) Any person who:
(i) hires or receives otherwise any service by payment or promises to pay the price;
ii) hires or receives otherwise any service by part payment or promises to pay partly the price.
(iii) hires or receives otherwise any service by paying the price in an extended term or by installments.
(e) Any person who consumes the service received under clause (d) with the consent
of the service consumer
So, consumer is a person who hires or purchases a product or service for his own use or for the use of someone with his consent without any commercial purpose except a living by self-employed.
Rights of a consumer
The declaration made by former US President John F. Kennedy in 1962 outlined only four basic consumer rights: (1) the right to safety; (2) the right to be informed; (3) the right to choose; and (4) the right to be heard. Worldwide consumer movement led by Consumers International (CI), a global federation of over 250 consumer organizations, added four more rights: (5) the right to satisfaction of basic needs; (6) the right to redress; (7) the right to education; (8) the right to a healthy environment. Together these eight rights form the basis for current consumers’ movement worldwide.” Now-a-days, consumer rights include more sectors like banking, telecommunication etc. In Bangladesh a lot of laws (around 61 laws, list given below) are prevailing on consumer rights that aims to ensure safety products and security in service.
In negative sense, a list of consumer rights can be found from the explanation of the term “Acts against consumer rights”.
Section 2 (20) of the Consumer Rights Protection Act, 2009 states that “Acts against consumer rights” mean:
a) Selling or offering to sale at a price higher than the price prescribed by any law or Rule for any product, medicine or service;
b) Knowingly selling or offering to sale any adultered product or medicine;
c) Selling or offering to sale any product which has mixture of any object that is dangerously harmful for human health and mixture of such object with food is prohibited by any Act or Rule;
d) Deceiving people in general by false and untrue advertisement with the purpose of selling any product or service.
e) Not to supply properly the product or service as promised in exchange price;
f) To sale or supply in a weight lesser than that has been promised at the time of such sale or supply;
g) The scale or instruments of weighing using for sale or supply of any product of a business establishment showing over weight that in actual weight;
h) Using less than in promised weight in time of sale or supply of a product;
i) The using ribbon for measuring length in any business establishment showing more length than in actual size;
j) To make or manufacture any counterfeit product or medicine;
k) To sale or offer to sale any date expire product or medicine;
l) Commission of any act which is dangerous to the life or safety of the service consumer that is prohibited under any Act or Rule;
We, therefore, may come to a conclusion that the prevention of the above „acts against consumer rights? means to ensure consumer rights.
An overview of the Bangladeshi Laws on the promotion and Protection of consumer rights
The general protection of the consumers may be derived from principles enunciated in Articles- 15x and 18xi of the Constitution. This Articles, though non-justifiable in its nature, indicates the importance attributed to the nutritional status of the people and basic principles and measures for protecting consumers from products, processes and services, which can endanger their health and safety. This constitutional safeguard has been strengthened through promulgation of related laws and regulations so that consumption be proper and appropriate.
Moreover, in the Constitution of Bangladesh some justifiable fundamental rights are incorporated which are connected with the rights of the consumers. As for examples, Article 32 provides that no person shall be deprived of life save in accordance with law; Article 38 provides that every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order; Article 40 provides that subject to any restrictions imposed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business. These fundamental rights interalia are enforceable by the Supreme Court of Bangladesh in accordance with Article 102 read with Article 44 of the Constitution.
The Consumer Rights Protection Act, 2009 provided both civil and criminal remedies. A consumer is entitled to lodge complain to the Consumer Rights Protection Department for any violation of the Act. The DC?s of different districts can exercise the same power as given to the department. A consumer although barred from filing a direct complains to the police station under the Consumer Rights Protection Act, 2009 can file a case to the Police station under other Laws.
The Bangladeshi laws provides for the establishments of different organizations to protect the rights of the consumers including various Courts or Tribunals such as-
(i) Consumer Rights Protection Department; (ii) National Consumer Rights Protection Council; (iii) Special Tribunal; (iv) Mobile Court (can work/ function under various Laws; It may be constituted by a special executive order); (v) Drug Court; (vi) Food Special Court; (vii) Ordinary Criminal Courts; (viii) Ordinary Civil Courts; (ix) Marine Courts; (x) BSTI; (xi) Claims Tribunal etc.
Conclusions
The Government has enacted the Consumer Rights Protection Act, 2009 to protect the rights of the consumers. This is a pragmatic approach of the Government to ensure consumer?s right that ultimately ensures right to life.
This enumeration of the types of action needed to promote consumers interests provides an accurate indication of the fields in which consumer law should come to play, foremost among which are:
a. protection against risks of physical injury to persons or property and against useless products.
b. protection against improper marketing measures and inadequate information.
c. protection against one-sided contract terms and risks of economic damage,
d. provision of effective and impulsive dispute resolution procedures for the consumer.
e. monitoring of the mechanism whereby prices and rates are fixed on the consumer goods and services market,
f. surveillance of practices or agreements jeopardizing the competitive structure of a market sector,
g. planning of a consumer education programme.
Thus, we may conclude that consumer protection is a large area, covering a diverse range of laws and policies. It includes such topics as the regulation of market-place relations (contract terms, advertising), the establishment of health and safety standards for products sold to consumers, and regulation of the provision of certain services (credit, professions, public services etc.). In short, consumer protection law is designed to protect citizens/consumers against injuries though to occur in unregulated markets.
BIBLOGRAPHY
i Out of more than six thousand Quranic verses, only a few hundred of them are directly or indirectly related to legal matters. The Quran is the product or outcome of a long gradual process of revelation continued for 22 years (610-632 c.a.); The Quran is the fundamental source of Islamic law. The spirit of the Quranic verses is often more important than the direct and mere the literary meaning of a particular verse. The relevant verses of Al Qura?n on consumer?s rights are-((8833::11)),, ((66::115522,, 1177::3355,, 8833::11–66,, eettcc..));; ((22::117722–117733)),, ((66::114455,, 22:: 116688,, 2233::5511,, 66::112211,, 55::55));;
ii Donoghue v. Stevenson (1932) A.C. 562; Judgment was passed by Lord Atkins of the House of Lords;
iii Turin Afroz, “Consumer Rights Day: What do we want”, The daily Star, “Law & our Rights”,March, 14, 2004
iv Ahamuduzzaman et al, “Consumer Protection Law”, Books 4 U, July, 2009,Ch-Four, pp-123-124, passim;
v http://www.minlaw.gov.bd or Bangladesh Code, Vol.38, Ministry of Law, GOB;
vi This point has been emphasized in David Caplovitz, The poor pay more, New York, Free Press, 1963.
vii G. Borrie and A. L. Diamond. The Consumer, Society and the Law. New York, 1983, p.9
viii Ulf Bernitz and John Draper. Consumer protection in Sweden. Legislation, Institutions and Practice. Stockholm. 1986, p. 11
ix M. Humayun Kabir Chowdhury, et al, Consumer Perceived Value Formation in Bangladesh: A latent Structure Approach, ASA University Review, vol.1, Issue No.01, pp-1-4, passim;
x Article-15 of the Constitution of Bangladesh (1972): Basic necessities;
“It shall be a fundamental responsibility of the State to attain, through planned economic growth, a constant increase of productive forces and a steady improvement in the material and cultural standard of living of the people, with a view to securing to its citizens-
the provision of the basic necessities of life, including food, clothing, shelter, education and medical care;”
xi Article-18 of the Constitution of Bangladesh (1972): Public Health and Morality;
“(1) The State shall regard the raising of the level of nutrition and the improvement of public health as moving its primary duties, and in particular shall adopt effective measures to prevent the consumption, except for medical purposes or for such other purposes as may be prescribed by law, of alcoholic and other intoxicating drinks and drugs which are injurious to health.
(2) The State shall adopt effective measures to prevent prostitution and gambling”
xii The High Court Division in a recent judgement ordered all the medical service providers to pay the VAT by themselves not to charge the consumers;
xiii Mizanur Rahman, ‘Consumer Protection in Bangladesh: Law and Practice’ (1994) 17(3) Journal of Consumer Policy 349.
xiv Stern. Consumer Protection via increased information. In : D. Aaaker and G. Day. Consumerism : Search for the consumer interest. Brussels Seminar, Nov. 1977.