CONSUMER PROTECTION LAW IN PAKISTAN

By:
PROF. ZILL- I-ATIF
Director Department of law
G.C. University Faisalabad

In the middle of April, 2008 Mr. Mauruf Ahmed Ali, Judge Consumer Court Lahore, awarded damages worth Rs. 50,000/- to a consumer against the English Biscuit company for a hair discovered in a biscuit. (The news, 18 April). This has sent vibes throughout the country. 

Consumer Protection law has finally been introduced across the country and is gradually gaining ground. Islamabad Consumer Protection Act 1995 broke the ice and The Sindh Consumers Protection Ordinance 2007 was the last to follow suit.1  In most developed countries this aspect of law has been firmly entrenched while the developing countries have realized its important in the last two decades.

            Pakistan has been particularly notorious in the development of law of Tort in its legal system. While the development of the concept of civil wrong with the reciprocal concept of compensation has become the hallmark of civilized nations, such law has remained on the back burner in our country. Against this backdrop the introduction of Consumer Protection Law, which has been considered an offshoot of law of Tort, and a recognition of the “liability” principle is a welcome addition. Over a decade the law in Pakistan seems to have developed gradually. Islamabad Act of 1995 was a rather short Act including 12 sections and provided for the establishment of a council; 2 The Punjab Act of 2005 contains 39 sections and allows for establishment of independent Consumer Courts.3 The establishment of the courts was necessitated   by greater public awareness towards this law. There has been simultaneous development of the concepts of standardization, environmental protection and unadulterated foods. 4

            The movement towards Consumer Protection Law is owed mainly due to two factors. Firstly growth of multinationals in the developed countries with pre-decided standard contracts necessitating protection to consumer. (Analyse the Unfair Contract Terms Act 1997 in United Kingdom; European community directives leading to regulations in member countries for instance, UCTTR 1998). Secondly the United Nations guidelines on consumer protection passed in 1985.5 The initial work was done primarily by the Economic and Social Council.  Special emphasis was placed on problems in the developing countries. 6

            The main UN objective was to “assist countries in curbing abusive business practices by all enterprises at the national and international levels which adversely affect consumers”. Further guidelines were set out where countries would be able to provide protection to consumers from hazards to their health and safety; to facilitate consumers to make informed choices, provision of adequate infrastructure to develop, implement and monitor consumer protection policies; enterprises are to follow not only indigenous laws but also international standards for consumer protection; that such provision should be consistent with international trade obligations.7

            The member countries were further guided to ensure that goods produced were safe for either intended or foreseeable use.8 Law should be passed that ensures the manufacturers to recall the product if hazards are discovered subsequently, or to replace, modify or substitute it.

Against the backdrop let us briefly analyse the Punjab Consumer Protection Act 2005. The Act spans over 39 sections and can be seen to be segmented into nine portions. The preliminary part is introductory including title, definition etc. the second part of the Act section 4 to 11 relate to a focal  issue of “defective products” and the liability arising from these. The defect could be in design, construction, and composition, lack of warning or non-conformity to express warranty. The said liability would primarily rest with the manufacturer. Section 9 is very interesting as it takes the liability away from the ambit of doctrine of strict liability. If the manufacturer did not and could not know of the defect he would not be liable. Section 10 signifies the legislature’s preference for liquidated damages as against unliquidated or exemplary damages to be granted under the Act.  Section 11 levies a duty of disclosure on the manufacturer and therefore qualifies the doctrine of Caveat Emptor.9 Section 13 makes an extension of the liability principle to services besides products. The provisions are analogous to provisions relating to products including duty of disclosure on the service    provider. Section 14 of the Act pertains to the requisite standard of a service which would be the standard. “a consumer could reasonably expect to obtain at the time” in Pakistan. Section 15 limits the amount of damages mainly to a return of the consideration or part thereof. Under section 16 of the said Act there is a duty of disclosure on the service provider of any relevant “conditions” or qualifications if they affect the contract. Section 17 is very important because it prohibits the inclusion of a disclosure or an exemption clause that would leave the consumer without appropriate remedy.

Part IV of the Act is specifically addressed to the manufacturer.10 They are supposed to prominently exhibit prices; issue a proper and a comprehensive receipt to the purchaser and adopt and disclose a return and refund policy. Part V of the Act deals with unfair practices. Section 21 prohibits misleading deceptive representation as to the nature or history of a particular product. Same applies to provision of services. Part V further places a prohibition on bait advertisement into the contract.11 Part VI has two main sections whereby section 23 enumerates the power of the Authority while section 23-A enumerates the powers of Government.  It must be noted that the Authority here stands for Consumer Protection Authority and is different from either the consumer council or the court. While the Authority has powers to levy fine itself, it may also file a claim before the consumer court. The Government may issue appropriate directions to the Authority. Part VII of the Act sets up Provincial Consumer Protection Council. Subsidiary councils may be set up at district level too. The prime function of the council would be to collect data and shall have members form or create liaison with other relevant organizations like association of trade, industry and services.12 Eighth part of the Act establishes the consumer courts. There is a marked improvement from the Islamabad Act as an independent court is established. Initially the Act established a consumer court in every district but a later amendment reduced the number. These courts are to be presided by a district or an additional district judge. Jurisdiction of the court shall be determined by residence of partner or place of business. A fifteen day notice is a pre-requisite to instituting proceedings. A limitation period of thirty days has also been prescribed from action to institution of claim. 13 Section 30 details the procedure to be adopted by the court. 14 The consumer court has been given the same powers as are vested in civil court under the Code of Civil Procedure 1908. 15  Furthermore it is stated that proceedings before the court shall be considered proceedings within the meaning of sections 193 and 228 of Pakistan Penal Code 1860 as well as section 195 and chapter XXXV of the Code of Criminal Procedure, 1898. 16 Under section 30 a maximum period of six months has been ordered for the decision of the claim in the consumer court. Section 31 allows the court the power to issue orders for rectification of product, replacement thereof or to award damages or compensation to the aggrieved party. Section 32 prescribes penalties against the defaulting manufacturer which may extend to two years imprisonment or with fine of upto one hundred thousand rupees or both. There may further be additional damages or compensation determined by the court. An appeal from the Consumer Court shall lieto the High Court with a limitation period of 30 days. 17  

The Consumer Protection Act has therefore added a new much needed dimension to the legal framework. A few problems however remain. Firstly, there is the problem of defining the exact perimeters of the word “Consumer”. The Act already transgresses and overlaps with other fields of law and it is important to determine the confines of this Act. Is a tenant a Consumer? Or a hospital patient in a free medical facility? Or a student whose education is government subsidised? Is a pedestrian who inhales the polluted air a consumer? This problem is further complicated because the Act seeks to cover both products and services.

Second problem is whether the jurisdiction of the court Civil or Criminal? The term used are “Claimant” and “defendant”; the procedure to be borrowed from civil procedure code. Yet there are penal clauses and sections borrowed from P.P.C. and Cr. P.C. have been incorporated. This would leave room for misuse of power by the court. The last problem is relating to the lack of awareness about the Act. Sue to a general dearth of developed Tort Law, the liability principle is not well recognised in the society. Therefore people lack consumer consciousness. An awareness campaign is therefore necessary to recap the fruits of the Act in letters and spirit.

In conclusion we  owe it to our generations to be vigilant  to make use of this essential law ; make the effort to arrange legal representation to go to the court and pursue the claim. The gain for the individual may not be worth the effort but accumulative benefit for the society in the long run would be enormous.

Footnotes Consumer Protection Law

1.         The NWFP Consumer Protection Act was passed in 1997, The Balochistan Consumers Protection Act in 2003, then The Punjab Consumer Protection Act in 2005 and finally the Sindh Consumer Protection Ordinance in 2007.

2.         Section 3of Islamabad Consumer Protection Act 1995

3.         Section 26 of Punjab Consumer Protection Act 2005

4.         Special mention is made to Pakistan environment protection Act, 1997

5.         General Assembly Resolution 39/248

6.         As clearly specified in its “objectives” Resolution 39/248

7.         http://www.crpc.org.pk/un-guide.htm

8.         This would involve instructing consumer as to the proper use of goods and be informed of the risks involved in intended or foreseeable use.

9.         Part III of the Act centers on the subject of “services” as against products.

10.      it is titled as “obligations of manufacturer” but is also applicable to “traders” as seen in section 16 of the Act

11.       Section 22 especially emphasizes misquoted or concealed price as well as misrepresentation about available quantities.

12.      Even with NGOs and an example is the Network.

13.      The delay may be condoned upto a total 60 days the court if the delay is justified by “Sufficient Cause”.

14.      The procedure interestingly allows involvement of experts and laboratories to determining the quality of the products. Section 30 (1) (c) (d).

15.       Especially in matters relating to summons, examination of defendants and witnesses; discovery and production of documents or other evidence Section 30 (3).

16.       Section 193 of P.P.C. allows punishment for fabrication and giving of false evidence. Section 228 stipulates punishment for intentional insult to a judicial personal or causing interruption in his work. Section 195 of Cr. P.C. provides procedure for prosecution for contempt of public functionary or for giving false or fabricated evidence.

17.      Section 33 ibid.

Bibliography

1.         Ahmed, M, Mughal, “Law of Consumer Protection”, Munir Publishers.

Howells & Weatherill, “Consumer Protection”, Ashgate Publishers.