Star Law Analysis
Consumer protection law
Dissecting the drafts
Barrister Tureen Afroz
Enacting a comprehensive Consumer Protection Law is a need of the time. The simple consumers of Bangladesh are in crucial need of having the protection. Therefore, the government should enact a comprehensive Consumer Protection Act as soon as possible and further strictly ensure the effective implementation of such legislation.
With the relentless effort of the Consumers' Association of Bangladesh (CAB) since 1992, a draft Consumer Protection Act was formulated in 1998 by the Ministry of Commerce in consultation with CAB and other relevant ministries, departments and agencies of the government. In February 2000, the Ministry of Commerce sent the draft Act (with necessary amendment suggestions) to the Bangladesh Law Commission to do necessary research on it. On 29 October 2000, the Law Commission suggested various changes to the draft act so prepared. Based on all these reforms, a bill was later introduced in the Parliament for due enactment.
The Awami League cabinet of 1996-2001 approved the relevant bill in principle but it was again sent to the Secretarial Committee meeting for further scrutiny. The following BNP government enlisted it in its priorities of 100 days and approved the bill in 2004. However, in 2006, a revised draft of Consumer Protection Act was framed and the reality is that no such consumer protection legislation has yet been enacted.
The (draft) Consumer Protection Act 2000 is very much similar to that of India and Sri Lanka. Some claim that it borrows heavily from the consumer protection law of Nepal too. The essential features of the draft law are:
(a)It provides definition of certain relevant terms, such as, consumer, complainant, complaint, consumer dispute, defect, deficiency, goods, service, manufacturer, trader, restrictive trade, unfair trade practice etc.
(b) It proposes the establishment of a National Consumer Council (NCC) and sets down its composition, objectives, functions and responsibilities.
(c)It suggests the establishment of Consumer Disputes Settlement Agencies such as one National Consumer Tribunal (NCT) for the whole Bangladesh and at least one District Consumer Tribunal (DCT) for each district. The draft law provides details of the composition, power, jurisdiction, details of trial proceedings, and the appeal mechanism for both the National and District Consumer Tribunals.
(d) The most striking part of the draft Act is that a consumer complaint, may be filed not only by the concerned consumer(s) or the government but also by any recognized consumers' association. For that matter, it is not necessary that the concerned consumer(s) be a member(s) of such consumer association.
There are two very important issues, which are absent in the draft Consumer Protection Act 2000. They are-
(a) There is no power given to either DCT or the NCT to issue 'interim orders' regarding the sale or withdrawal of hazardous goods from the market. The total complaint procedure would take months or years to settle the issue, but in the meantime the consumers might suffer irreparable loss unless such interim order is passed by the Consumer Courts in appropriate cases.
(b) There is no provision of constituting and maintaining a 'Consumer Protection Fund' for protecting and promoting consumer rights in Bangladesh. By an amendment in 1980, provisions for such fund were incorporated into the Sri Lankan Consumer Protection Act 1979. In Sri Lanka, the sources of such 'Consumer Protection Fund' generally come from the fines procured by the consumer courts for offences under the Act, profits from sale of goods forfeited under the Act, grants and donations, and finally from the budget sanctioned by the parliament for protection of consumer rights.
The recently prepared draft Consumer Protection Act 2006 makes some new provisions to the 2000 draft. Some of such new changes suggested are:
(a) The 2006 draft Act ensures more wide representation of the civil society in the proposed National Consumer Council (NCC).
(b) The 2006 draft Act establishes the Department of Consumer Affairs and the same is entrusted with a 'wide discretionary power' so that it can play an activist role to safeguard the interest of the consumers.
(c) Provisions regarding DCT and NCT are replaced by provisions of the 1st class Magistrate or the Metropolitan Magistrates to try the offences under the proposed Act. Appeals against the verdict of Magistrates will lie in the Court of Session judge.
(d) The 2006 draft Act incorporates the system of summary trial through mobile courts. This is aimed at providing speedy relief to the consumers. No such provision was incorporated in the 2000 draft.
(e) The 2006 draft Act defines specific offences against consumerism and provides punishments for such offences. An offender not only does have criminal liability but also is made subject to civil and administrative liabilities. In other words, the consumers, now, can receive civil and administrative remedies for consumer offences committed.
(f) Provisions of 'interim order' in appropriate instances are introduced. The Director of the Department of Consumer Affairs is entrusted with the power to issue such orders. This was not there in the 2000 draft.
(g) No provision of 'constituting and maintaining' a permanent Consumer Protection Fund was created. However, the 2006 draft Act establishes that if a fine is imposed on the offenders, either by the Court or by the Department of Consumer Affairs, the aggrieved consumer has a right to share at least 25 percent of the fine amount.
From the ongoing discussion it is clear that the 2006 draft Act is more elaborate than the 2000 draft in many aspects of consumer protection. However, it fails to make provisions for a permanent Consumer Protection Fund. Also, the 2006 draft deletes the provisions of specialized consumer protection tribunals, which could be efficiently used in dealing with the consumer protection matters alone.
Enactment of a comprehensive law to protect the rights of consumers of Bangladesh has become a priority. It is unfortunate that when other neighbouring developing countries (like India, Pakistan, Nepal, Sri Lanka, Thailand, Indonesia, Malaysia and many others) have already enacted comprehensive consumer protection legislation in their respective countries, consumers in Bangladesh are being deprived of even their basic rights. More unfortunate is to note that matters relating to consumer protection have neither been a priority in the governmental agenda nor an issue of serious concern in the political manifesto of any of the political parties of the country so far. The snail-pace movement of enacting the draft Consumer Protection Act in Bangladesh makes one wonder whether it will ever see the daylight.
The author is Assistant Professor of the BRAC University School of Law and the Executive Director of the Law Dev (Bangladesh).