Shortcomings relating to Consumer Rights Protection Act, 2009 and Proposed some Recommendations.
INTRODUCTION
The Consumer Right Protection Act was passed by the parliament and obtained assent of the president on April 05, 2009 and its demand is the Consumers of Bangladesh. So it is essential to understand what consumer is. Consumer is a person who consumes or uses any commodity or service available to him either from natural resources of through a market for final consumption. It gives Protection to the Consumers against the violation of their right and being injured by the unfair trade practices of the seller or service provider. It does not mean that consumer right has not protected before Act was passed. People of Bangladesh had been protected try various Acts such as - Constitution of Bangladesh, Sale of Goods Act, Specific Relief Act, Dung Control Ordinance, Pure Food Ordinance, Penal Code etc. But rights of the Consumers were not well protected by those Acts. After the enactment, people got a written or existing Act and protected under this Act.
OVERVIEW
The Consumer Right Protection Act (later termed as CRPA), 2009 of Bangladesh was passed by the Parliament and obtained assents of the President on 5th April, 2009 and shall come into force at once [sec-1(2)].The Act provides for the protection of consumer rights and for prevention of acts against consumer right and interest and other relevant issues. The Consumer Protection Act 2009 is organized into 7 chapters and a total of 82 sections. The Act mainly deals with the obligations of "economic operators" and product safety. It enjoins state organs to punish the offenses of economic operators who violate consumer rights and interests. It provides for various actions to be taken by the respective ministries against the production of products or services that are likely to induce grave or imminent dangers. The Act also sets out comprehensive procedures to be followed by inspection agents to ensure the quality and safety of products (goods and services). It also allows for the establishment of a specialized institution to be in charge of fraud repression and inspections of imported and exportedgoods. (Chapter 1) deals with definition such as complainant, consumer, medicine, punishment, Food product, council, Rules etc and it deals with the establishment of council (chapter 2). Department and Director General (chapter 3), offence and punishment (chapter 4), trial (chapter 5), civil proceedings and remedies (chapter 6) and miscellaneous (chapter 7).
In section 2(20) - it states some name of activities which is against consumer’s rights such as- to sale at a higher price, to sale any adulterer medicine or product, to sell any product which has mixture of any product, deceiving people by false or untrue advertisements, not to supply goods properly in exchange of price, to make counterfeit products, to sale date expired products and so on.
In section 2(22) - it provides for a definition of services.
In section 5- it is said that “The Consumer Right Protection Council” shall be established and it consists of 29 members. The Tenure of membership, Meeting and Function of the council shall be enacted.
In section 10- it provides about the Establishment of District Committee for the Protection of Consumer Right.
In chapter 3- Sections from (18-36) deal with Establishment of a Department, Director General and Powers and functions of the Director General and so on.
In chapter 4- Sections from (37-56) deal with punishment for the various acts against consumer’s rights and interests and violation of the provisions of this act.
In chapter 5- Sections from (57-65) deal with the trial.
In chapter 6- Sections from (66-68) deal with the civil proceedings and remedy.
In chapter 7- Section from (68-82) deal with the miscellaneous. Chapter 7 also deals with different types of miscellaneous provisions such as- power of District Magistrate (sec-69), Administrative action taken by Department (sec-70), monitoring private health and medicine service (sec-73) etc. Under this chapter some exemption are also allowed for some offenses.
Loopholes And Recommendations relating to CRPA, 2009
Section 2(22) - It gives a definition of services. It includes all services of telecommunication, water supply, sanitation, fuel, gas etc. which are made available to consumers inexchange of price. But it excludes free services.
Defect- But it’s a matter of regret that the definition of services does not include free services. If anyone consumes free service of product and gets suffered by using those services, then he is not entitled to get remedy.
Reform-This provision of CRPA should be amended by the inclusion of “free service” in section 2(22).
Section 3 - CRPA shall be treated as additional notwithstanding relevant provisions of any other law and shall not affect any provisions of any other laws i.e. it has no supremacy.
Defect- As CRPA shall be treated as additional, so it has no supremacy. That means other laws will prevail over this Act and CRPA treated as a less important Act.
Reform-The amendment is necessary for its supremacy and it should not be treated as an additional.
Section 4 - Govt. may, by notification in the official gazette, exempt any service or locality for a specified period, from the application of this Act.
Defect-If govt. wants he can exempt even a dangerous product, any factory, shop, etc., who produce any dangerous product of this locality, and which has various injurious effect on human health and life and on the environment so consumer right is hamper and not enjoy his rights properly.
Reform-This section will be declared invalid and as early as possible it should be amended.
Section 5- Under this act, a “NATIONAL CONSUMER RIGHTS PROTECTION COUNCIL” shall be constituted. It consists of 29 members. Govt. appoints them from different sectors. Such as-
| Sectors | Number of Members |
| Ministry and Bureaucratic | 9 Members |
| Govt. owned & supervised selection and institution | 8 Members |
| Consumer’s organization | 1 member (ex officio) |
| Govt. selection | 10 members |
| District General | 1 member (appointed by govt.) |
Loopholes- But the problem is that most of them are from Government and controlled by the Government and all members are appointed by the Government. So, it can be called a highly bureaucratic council. It is a council for a Government rather than for consumers. It has no direct accession of consumers; also it has no norm for legal expert (Market economy, Trade, Public administration) . This act is created for protection of the rights and interests of the consumers and it is their tacit demand that there are enough representatives of consumers in the council. But the legislature of this act can not fulfill their demand because there are not enough representatives of consumers and legal expertise.
Reform-The council of member must be appointed by the legal expert i.e. Lawyer and must be handed over to the independent administration.
Section 6(1) –A selected member of the council shall continue to be as a member for 2 years and 6 months from the date of his selection.
Defect-This time is not sufficient for take any effective step.
Reform-So time must be extended for the purpose of protecting interest of consumer.
Section 6(2) - Selecting authority may, at any time, cancel the selection and select any other person whom it deems fit.
Defect- But there is no specific provisions or grounds upon which the cancellation and selection may be ordered. This section gives despotic power to the council. That’s why the council members have exercised arbitrary power For instance; the council takes a decision, which is not beneficial for the consumers. If any member of the council raises his voice against it, he may be terminated by the council. This provision is against the consumer’s rights and interests.
Reform-There must be an amendment in this section and must be an inclusion of specific provisions or grounds for the reason.
Because of it there should have included some specific provisions or grounds for the cancellation and selection of members.
The Consumer Protection Rule, 1987 in India- Rule 13 states that:-
There are some provisions for Removal of members from office in certain circumstances: - 1) The Central Government may remove from office, the President or any member who –
(a) has been adjudged an insolvent; or
(b) has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude; or
(c) has become physically or mentally incapable of acting as the President or the member; or
(d) has acquired such financial or other interest as is likely to affect prejudicially his functions as the President or a Member; or
(e) has so abused his position as to render his continuance in office prejudicial to the public interest, 1 [or]
(f) remains absent in three consecutive sittings except for reasons beyond his control.
(2) Notwithstanding anything contained in sub-rule (1), the President or any member shall not be removed from his office on the grounds specified in clauses (d), (e) and (f)] of that sub-rule except on an inquiry held by Central Government in accordance with such procedure as it may specify in this behalf and finds the President or a member to be guilty of such ground.
KOREAN CONSUMER PROTECTION ACT:
Article 36 provides that- No member shall be removed from office against his will, unless he is sentenced to a punishment of qualification suspension or a more severe one, or he is unable to perform his duties owing to a mental or physical impediment.
Section 7(6) – the quorum of the council shall constitute by the presence of at least 10 members.
Loopholes-With the presence of 10 members the quorum of the council shall constitute. But 70% will need to constitute a quorum of a council. So the presence member is not sufficient with this rule.
Reform-The 10 member is not adequate than the percent of the quorum of a council.
Nepal Consumer Protection Act, 1998:-
Section 5(2) states that- the quorum for a meeting of the Council shall be deemed to have been fulfilled in case it is attended by at least 50 percent of its total membership.
Section 7(7) –Decision shall be taken by majority vote of the members present and in case of equal votes, the person presiding has the power to caste a determining vote.
Defect- If the council wants it can pass any law by their choice. Because it can take decision upon majority vote of the present members i.e. the decisions of other members have no value, which are not present in the quorum.
Reform- The present member is not sufficient for make any decision. The time of decision making must be presence legal experts and representative of consumer because that decision executive by the consumer.
Section 10–Establishment of District Committee for the Protection of Consumer Rights and appointment such committee member.
Defect- They has no representative of consumer
Reform- so the representative of consumer must be increase.
Section 18- Under this section, “NATIONAL DEPARTMENT FOR PROTECTION OF CONSUMERS RIGHTS” shall be constituted.
Loopholes: The Department shall assist in all the functions of the council, and shall be responsible for the implementation of decisions of the council. So it can’t perform its function by its own regulations.
Reform-The National Department for Protection of consumer right will be declared as independent.
Section 20(1) – There shall be a Director General in the Department and he will be appointed by the govt.
Defect-There are no legal provisions about the qualification of Director General.
Reform- There must be amendment in this section and must be joint specific provisions or grounds for the reason.
Section 29 - The govt. shall prohibit the production, import, marketing, sale, display for sale, distribution, transport or use for commercial purpose of any product proved as dangerous to human health, in the whole country or in some particular place or may instruct to conducting or management of such activities subject to some condition. It implies that govt. may allow any producer to produce dangerous product for sale, display for sale, distribution, transport or use for commercial purpose upon some condition.
Section 31 - This section is provided for collecting sample and such sample shall send to laboratory for examination.
Defect-The problem is the collecting officer will not divide it i.e. the sample, what is collected, shall send for examination. If, somehow, the sample is lost than the main evidence will be lost then it can not possible to prove offence.
Reform-here mention only collect one sample but there are no provision relating to divide it so follow the procedure of labour Act
Section 31(3e) -The officer collecting sample after that those sample send to the laboratory as prescribed by the Director General.
Defect-It is Act against consumer right
Reform-This section is declared invalid.
Section 35 and 36 – Under these sections, the Director General has a power to use, destruct in a fixed system, transferred or distribute in other way, attached or detained adulterated products, which are harmful for human health.
Defect-Those products are harmful for human health so how its use that product.
Reform- It is Act against consumer right so must be amend this section.
Section 59 – All offences committed under this act should be bailable, cognizable and compoundable.
Defect-So very injurious offences are also bailable and compoundable. Any offence committed against the consumer right so those offence not be compoundable.
Reform- The section must be amending.
Section 60, 61 and 71 – Under this act, consumer has no ‘locus standi’ to the court and the consumer can not file a case to the Magistrate directly and it is given to the Director General. No complaint relating to violation of consumer right shall be accepted if it is not lodged to the Director General within 30 days of accrual of the cause of action. Moreover, after filing a complaint to the Director General, if he does not submit charge sheet to the Magistrate within 90 days of lodging complaint under sec 59, he shall not take cognizance of that offence.
Defect- If a consumer suffers from any loss; no case can be filed directly to the Magistrate. So consumer not shows his interest and this procedure is so long.
Reform- If a consumer suffers from any loss so to give opportunity to file a suit to the Magistrate directly.
Related section-According to sec - 06(Pakistan)
The Authority shall be responsible for receiving the complaints of consumers and those made on behalf of the Council, their investigation and determination.
Section 73 –Director General has the power to find out the defects and lacking by checking the health-nursing care carried on by the private sector. After that he will not take any preventive measure; he will inform the Sectary Health Minister and the Director General of the Health directorate.
Defect-It’s a long process and the Director General shall not cognizance immediately.
Reform-To gives opportunity to take a cognizance immediately.
Our Act does not have any provision as to the Consumer Right but China has-
CONSUMER RIGHTS
Article 7. Consumers enjoy the rights of personal and property safety from violation when they buy or use commodities or receive services.
Consumers are entitled to demand business dealers to supply commodities and services up to the requirements of personal and property safety.
Article 8. Consumers enjoy the rights to obtain true information of the conditions of the commodities they buy or use or the services they receive.
Consumers are entitled to demand from business dealers, according to the different conditions of the commodities and services, information concerning prices, location of production, manufacturers, uses, properties, standards, grades, chief ingredients, date of production, term of efficacy, certificates of inspection, operation instruction and after sale services of commodities or the contents, standards and costs of services.
Article 9. Consumers enjoy the rights of free choice of commodities of services. Consumers are entitled to free choice of business dealers for supply of commodities or services, free choice of the kinds of commodities or the ways of services and free decision of buying or not any kind of commodities or accepting or not any item of services.
Consumers are entitled to make comparisons, differentiations and selections when they are making free choice of commodities or services.
Article 10. Consumers enjoy the rights of fair deals.
Consumers are entitled to obtain prerequisites for fair deals such as guarantee of quality, reasonable price and correct measures, and to refuse compulsory transactions by business dealers.
Article 11. Consumers enjoy the rights to compensations in accordance with law for personal injuries or property damages caused by purchase or use of commodities or acceptance of services.
Articles 12. Consumers enjoy the rights to set up social bodies to uphold their legal rights and interests according to law.
Article 13. Consumers enjoy the rights to obtain knowledge concerning consumption and protection of legal consumer rights and interests.
Consumers should make efforts to grasp knowledge of necessary commodities or services and skills in operation, to use commodities correctly and to raise the consciousness of self-protection.
Article 14. Consumers enjoy the rights of personal dignity and respect of ethnic customs and habits when they purchase or use commodities or receive services.
Article 15. Consumers enjoy the rights to exercise supervision over commodities, services as well as the work of protecting consumer rights and interests.
Consumers are entitled to inform and complain against offences against consumer rights and interests and the breach of law or neglect of duty on the part of state organs and their staff in the work of protection consumer rights and interests, and to put forward criticism and proposals for the work of protecting consumer rights and interests.
And Our Act does not have any provision, to give opinion and request of the consumer in the time of Law, Regulation and policy making but China has-
Article 26 states that- The State should listen to the opinions and requests of consumers when making laws, regulations and policies concerning legal consumer rights and interests.
I think the provision of “Unfair trade practices” need to include. Say for example- Pakistan has this provision-
“Unfair trade practice” means a trade practice which, for the purpose of sale, use or supply of any goods or for provision of any service or for their promotion, causes loss or injury to the consumer of such goods or services, whether monitory or otherwise, or in furtherance of such sale, use or supply makes any statement, whether orally or in writing, or by chalking on walls or through sign-board or neon-signs or by distributing pamphlets or by publication in any manner, including through electronic media, by -
(I) falsely representing that the goods or, as the case may be, services are of a particular standard, quality, quantity, grade, composition, style or mode;
(ii) Falsely representing any rebuilt, second-hand, renovated, reconditioned or old goods as new goods;
(iii) falsely representing that the goods or, as the case may be, services have sponsorship or approval of the competent agency or authority or possesses specified characteristics, performance, accessories, uses or benefits which such goods or services do not have;
(iv)Falsely representing that the goods or services offered fulfill the prescribed standard fixed by local or international authorities;
(v) Giving misleading representation of the need for, or the usefulness of, any goods or services;
(vi) Falsely giving to the public any warranty or guarantee of the performance, specification, required ingredients, efficacy or length of life of a product or any goods that is not based on an adequate or proper tests thereof;
(vii) falsely offering for sale or on lease any premises, house, shop or building with specified facilities or with the promise to deliver possession thereof within a specified period or without any escalation in price or by falsely representing that such premises, house, shop or building is being sold, built or constructed in accordance with the approved plans, specification and approval of the concerned authorities;
(viii) misleading the public concerning the price at which a product or products or goods or services have been, or are ordinarily sold or provided; (viii)giving false or misleading facts regarding facilities available in the private educational institutions or falsely representing that such institutions have proper approval of the concerned authorities;
(ix) Falsely representing for provision of services by professionals and experts, including by doctors, engineers, advocates, and mechanics, teachers, hakims and spiritual healers;
(x) giving false or misleading facts disparaging the goods, services or trade of another person, firm, company or business concern;
(xi) advertising for the sale or supply at a bargain price of goods or services which are not intended to be offered for sale or supply at such price; and
(xii) offering of gifts, prizes or other items with the intention of not providing them as offered or creating the impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction.
CONCLUDING REMARKS-
After a long proceeding the Government of Bangladesh has passed an Act named ‘THE CONSUMER RIGHT PROTECTION ACT’. Its ultimate aim to determine, promote and protect the rights of consumers and formulate polices for the fair and honest trade practices by manufacturers, producers and suppliers of goods and services. Section 5 provides for consumer rights as follows: the right of protection against marketing of goods which are hazardous to life and property; the right to information about the quality, quantity, potency, purity, standard and price of goods and services; the right of access to a variety of goods at competitive prices; the right for redress against unfair trade practices or unscrupulous exploitation of consumers; and the right of consumers’ education. Even after, it has so many difficulties arisen at the time of proper implementation. That’s why it can’t be possible and the CRPA or its section can’t protect the consumer rights because of these defective sections. So it must be amended for the purpose of protection consumer rights and interests.
Mohammad Rayhan Uddin,
Department of Law,
LL.B. (Honors), LL.M. (9th Batch),
Premier University, Chittagong, Bangladesh.LL.B. (Honors), LL.M. (9th Batch),
Cell No: +8801914676110
