THE ROLE OF JUDICIARY IN CONSUMER PROTECTION

By:
KHADIM HUSSAIN TUNIO
District & Sessions Judge,
Tando Muhammad Khan

Abstract: Consumers are important to both the Government and corporate entities. In the Indian sub-continent, the history of consumer protection is quite sketchy. The British were the first to introduce a semblance of consumer laws in pre-partition united India. After the emergence of Pakistan in 1947, several consumer protection laws were promulgated and different institutions established to provide redress and relief to consumers. This paper traces the development of consumer protection rights in Pakistan. The regulatory framework to assist the consumer to seek protection from unfair practices has also been discussed.

INTRODUCTION

The Network (2010) defines a consumer as a person who acquires goods and/or services for personal consumption or production of other goods and services. Though, according to GOP (2010: 238), Pakistan is a country of 173.5 million people with the share of working population reaching 59 percent in 2006, no effort has been made to document the policies protecting the rights of consumers. This share will peak to 68 percent in 2045. This indicates that the pool of consumers is not only very high but will continue to grow in the coming decades.Though central to economic activity, consumers are vulnerable to exploitation by producers, misleading information, ignorance about their rights and non-availability of redress mechanisms. Their case in Pakistan is quite pathetic. Absence of an entry on 'consumer' in the indices of law books in Pakistan indicates the absence of consumer concerns in the juridical debate and statues of Pakistan (Ansari & Hafeez,2000, p. 8).

Saunders & Harris (1990) find that consumer powerlessness is endemic in many areas of state provision. However, even the presence of competitive markets does not eliminate information lags as well as search and transport costs needed to make discreet choices (Khan & Mansoor, 1996). In the Pakistani scenario, a low literacy rate of 57 percent (GOP, 2010) puts the naive and ignorant consumers at the mercy of producers and retailers. This is becoming increasingly so, since with privatization, 167 public enterprises (PC, 2010), including some monopolies, have been transferred to the private sector. While the public sector may have fixed prices with some politically motivated welfare preferences in mind, the private sector is driven exclusively with profit motive. Privatization or rise of the private sector has also put an already ignorant consumer at an even greater disadvantage. However, Saunders & Harris (1990) think that privatization has not made the consumer worse off.

UN (2003) advocates a strong case for Government intervention to protect the rights of consumers. It provides detailed guidelines for their guidance and protection. According to the United Nations (2003: 1),

"Governments should develop or maintain a strong consumer protection policy ... [E]ach Government should set its own priorities for the protection of consumers in accordance with the economic, social and environmental circumstances of the country and the needs of its population, bearing in mind the costs and benefits of proposed measures."

This means that the onus for consumer protection falls on the Government of each respective country. It is for the Governments to implement or promote the implementation of suitable measures, including legal systems, safety laws, domestic, global or voluntary standards, and the keeping of safety records to make sure that products are safe for either planned or normally anticipated use.

This paper aims to recount the historical and current developments in consumer protection in Pakistan, an area which has previously remained neglected. After the introduction, the second section presents a history of consumer protection in Pakistan and traces its roots to the times of British India. The third section, divided into many sub-sections, elaborates and analyses the development of consumer protection laws and their enforcement mechanisms in the country.

Consumer Rights during the British Raj

The history of consumer protection is quite old in the Indian sub-continent. Even before the creation of Pakistan, consumer protection laws existed in one form or the other to protect citizens. These laws included The Indian Penal Code, 1860, The Indian Contract Act, 1872 and The Sale of Goods Act, 1930.

The Indian Penal Code, 1860 contained general provisions for the protection of Indian citizen from any act which caused mental and physical disturbance. Though the Act did not include any specific provisions for protecting the consumer, various clauses could indirectly help him in protecting his rights. Waqas: Please add 2 sentences how they indirectly protected the consumer.

The Indian Contract Act, 1872 had jurisdiction over the whole of India except the State of Jammu and Kashmir. According to this Act, any person who will indulge in fraud or misrepresentation shall be liable to compensate for it. The sellers and buyers transacted on the basis of this Act and were bound to follow it. In case of a breach by the seller, the buyer was entitled to compensation for any loss caused to him by the breach of contract. This Act was also only indirectly helped to the cause of consumer protection . However, this was a step forward in determining a contractual relationship between the two transacting parties.

The Sale of Goods Act, 1930 also extended to the whole of India except the State of Jammu and Kashmir. This was the first Act in the Indian sub-continent that directly helped gave the consumer/buyer some protection from the seller. According to this Act, a seller is obligated to deliver the good and a buyer or consumer is obligated to receive and pay for it. The Act regulated issues inter alia dealing with the delivery of goods, receipt of goods after scrutiny and examination, and the rejection of goods on unsatisfactory quality or non-conformity with the required standard. The Act also stipulated that a buyer can sue a seller for breach of warranty and if the seller wrongfully neglects or refuses to deliver the goods. This Act can be called a watershed in the history of consumer protection in the Indian sub-continent.

The first Act to protect the consumers from malpractices of drugs industry was passed in 1940 named Drugs and Cosmetics Act, 1940.

List of Laws Existing in British India Name of the Act Sector

1.       The Indian Penal Code, 1860 General

2.       The Sale of Goods Act, 1930
Sale and Purchase of Goods and Services

3.       Punjab Pure Food Act, 1929 Food

4.       Bahawalpur State Pure Food Act, 1946 Food

5.       Sind Foods Act, 1947 Food

6.       Khairpur Prevention of Adulteration Act, 1941Food

7.       North-West Frontier Province Artificial Ghee Colorization Act, 1939 Food

8.       Drugs and Cosmetics Act, 1940 Pharmaceutical

Consumer Rights in Pakistan

After the creation of Pakistan in 1947, different Acts in vogue during the time of British India were adopted in the country. However, succeeding Governments in Pakistan were too busy in handling some basic issues such as preparing a constitution for the young country and settling the newly arrived migrants from India, that they had little time for the consumers. Later, military Governments took over the reins of powers and consumers lost all voice through the absence of democratically elected assemblies. The result was that consumers and their rights were both neglected. Even where some laws were enacted, such as Price Control and Prevention of Profiteering and Hoarding Act, 1997, they did not include the consumer as an independent and interested party (Ansari & Hafeez, 2000).

This historical legacy of ignoring the consumers has led to a situation where they were completely excluded or only partially accommodated in the legislative scheme. There is total absence of consumer welfare thinking. There are no adequate procedures for consumers to obtain redress. Compensation or damages due for the harm suffered by consumers is consistently omitted or denied. The state and legislators have failed to provide compensation and damages as statutory remedies (Ansari & Hafeez, 2000). Therefore, they are always in a disadvantageous position as compared to manufacturers or suppliers (Khan & Hafeez, 2000). Even where laws exist, constraints, like information lags, weak infrastructure, financial crisis, lack of technical know-how etc. impede their implementation laws (Khan & Aftab, 2000).

Article 18(b) of the 1973 Constitution of the Islamic Republic of Pakistan mandates that it is the duty of the state to regulate trade, commerce or industry in the interest of free competition.

The first important law promulgated in Pakistan for the protection of consumers was Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970. Under this Act, a Monopoly Control Authority was constituted. It aimed to restrict unnecessary concentration of economic power, growth of unfair monopoly power and unreasonably restrictive trade practices. Its functions included registration of complaints, holding enquires, giving advice to individuals or undertakings, and giving recommendations to federal or provincial Governments. The Authority was empowered to take steps to check monopolistic behaviour or concentration of economic power: it could force the concerning private companies to convert into public limited companies, or in case of the latter, ask them to offer shares to general public or any institution established by the Government. Similarly, it could force a person or an undertaking to dissociate from the ownership of any stock or shares, or ask the former to leave control as an officer, director or partner in a company. The authority could also prohibit the purchase any stock or assets by an individual or company or limit the loan from banks or insurance companies. It could also take steps to ensure competition in the production, distribution and sale of any goods or provisions of any services. The Ordinance was considered a milestone towards the protection of consumers in Pakistan.

Pakistan formulated various drug laws to protect consumer rights which include Pharmacy Act, 1967 and The Drugs Act, 1976. Waqas: Please add 2/3 sentences about the Act.

Though these and other laws were present in the country, poor implementation and enforcement made the legal scene not very promising for the consumers. The situation became worse as the consumers were not aware of their rights and possible remedies available if they were exploited (Khan & Hafeez, 2000).

CONSUMER PROTECTION LAWS IN DIFFERENT SECTORS

Food Sector Legislation

Pakistan does not have a well-integrated legal framework to protect the consumer of food products. However, there are certain laws regarding food quality and standards. Though these were passed many years before, they can be very effective if properly enforced.Before Pakistan became independent, there were several food laws, which catered for the needs of either provinces or independent states allowed to exist within the British India. Their list can be seen in Table 1. More laws were enacted after Pakistan's creation which deal with food safety like The Pure Food Ordinance 1960, Pakistan Hotels and Restaurant Act 1976, Pakistan Standards and Quality Control Authority Act, 1996 and The Cantonment Pure Food Act, 1966. These laws are briefly discussed below:

The Pure Food Ordinance, 1960 has various provisions to protect consumer from the malpractices of manufacturers and resellers regarding food products. It prohibits the mixing, coloring, staining and powdering of food with any matter and giving false warranty. Products which are adulterated, misbranded and sub-standard are prohibited for sale. All the importers, manufacturers and resellers have to comply with provisions regarding the manufacturing, processing or preparation, packaging, labelling, consignment, delivery and standard of quality of food items. There are also special provisions for products such as margarine, banaspati and fat. This Act also set rules for the appointment of analysts and inspectors for the purpose of enforcing the Ordinance within their jurisdiction. This Act also specifies various penalties and procedures through which the cases are dealt in a Court of law.

Though applicable to the whole Pakistan, the Pure Food Act, 1960 did not cover the cantonment areas. In 1966, a new act called the Cantonments Pure Food Act, 1966 was passed specifically meant for the cantonment areas. Its provisions are very similar to The Pure Food Act, 1960.

In 1976, The Pakistan Hotels and Restaurants Act was enacted. Its purpose is to provide procedures for controlling and regulating the standards of service and facilities for tourists in hotels and restaurants. This Act regulates the sale of food and beverages which are injurious to health or which are contaminated due to lack of cleanliness in the hotel. The owner or manager is required to undertake scientific tests of water, food and other articles of human use through any agency to make sure the food and other articles conform with health and hygiene standards.

The authorized officer can any time inspect the quality of foodstuff and other appliances. It is mandated a hotel to get license and registration for operation. The law is limited in the sense it does not provide procedures for lodging a complaint in case of injury to a consumer. Furthermore, it does not state compensation due to a consumer.

The Pakistan Standards and Quality Control Authority (PSQCA) Act, 1996 lists provisions for maintaining standards of quality to make sure that the products are safe for consumption. Although this Act cannot be characterized exclusively as a food law, it provides for standardization and quality control services which are related to the health and safety of food. Representatives of Ministry of Food and Agriculture and Ministry of Health are members of the advisory council of PSQCA. This Act provides for necessary measures for the testing of products and services for their quality, specifications and characteristics. It also regulates the quality labelling standards which shall state ingredients, performance, specification, usage, methods and other relevant quality control matters. It also prohibits the manufacture, sale and storage of any article including food items which does not conform with the quality standards of Pakistan.

Health Sector Legislation in Pakistan

The first legislation in the sector were formulated before the independence of Pakistan during the days of the British raj. This was called Drugs and Cosmetics Act, 1940. Pakistan enacted various drug laws to protect consumer rights which include Pharmacy Act, 1967, The Drugs Act, 1976 and The Drugs (Labelling and Packaging) Rule, 1986. The following paragraphs discuss these laws.

Pharmacy Act, 1967 stipulates the establishment of Pharmacy Councils to regulate the practices of pharmacy and to protect consumer rights. This Act specifies procedures and examinations to qualify a person as a pharmacist. It mandates the Pharmacy Council as a regulatory body to hold exams, approve the course of study and practical training, prescribe the conditions and requirements of admission, and to lay down and maintain teaching standards.

The Drugs Act, 1976 is another major Act that regulates the import, export, manufacturing, storage, distribution and sale of drugs. According to this Act, the federal Government will regulate the import and export of drugs, while the provincial Governments will regulate their sale which must be in a manner safe for public use. The Act impressed upon the provincial Governments to constitute Provincial Quality Control Board. The Board has the authority to inspect any location where any drug is being manufactured or sold and to recommend to the suitable authority the cancellation or suspension of the license to manufacture or sell drugs. It analyses the reports of provincial Inspectors and also of Government Analysts responsible for testing drugs sent to them by the Inspectors. The Board is an apex body at provincial level that advises Governments on the methods to guarantee the quality control of drugs in the province. It recommends measures to upgrade drug testing laboratories and provide training to Government analysts.

The Board or its representative can inspect premises where drugs are being manufactured, stocked and sold and, seal it if engaged in activities in contravention of this Act. This Act prohibits the sale, manufacture, import and export of any fake drug, counterfeit, misbranded, adulterated, substandard, drug after its expiry date, drug which is not registered or is in conflict with the conditions of registration. It also prohibits the sale of any drug without a warranty bearing the name and batch number of the drug issued or use an incorrect batch number. It also regulates the advertisements of drugs.

This Act protects the consumer by levying various penalties on manufacturers, importers or distributors of drugs. Whoever exports, imports, manufactures or sells any drug whcih is counterfeit, non registered, false warranted or do such act without a license will be punishable with imprisonment and fine. This Act also mentions about the formation of drug Courts where a complaint about any drug manufacturer, seller, importer and exporter can be filed.

The Drugs (Labelling and Packaging) Rule, 1986 specifies that drug must have information about the weight, volume or dose. The name of manufacturer, license number, registration number, date of expiry, Urdu version of the drug name, distinctive batch number, date of manufacture and maximum retail price must be mentioned on the label of the container. Drug label must mention about its usage i.e. whether for internal or external use or it is for a physician as a sample. In case, the drug is meant for Government institution or veterinary use, the label must contain information about it. Non sterilized surgical instruments must have information printed on it stating about its status. Each finished drug must be packaged in a container for retail sale to a hospital dispensary, clinic, or any other such institutions.

The Emergence of a Modern Era for Consumers

A modern era for consumers emerged in the country when the federal Government formulated the first legislation for the protection of consumer rights in the federal capital, Islamabad on October 18, 1995. The Act is called Islamabad Consumers Protection Act, 1995. It deals with unjust trade practices and provides instruments to handle consumer complaints. This Act emphasized the formulation of Consumer Protection Council to protect consumers from the malpractices of manufacturers, distributors, etc. The Council is mandated to protect them from hazardous goods, ensure their right of information about product quality, quantity, potency, purity, standard and price, their right of choice, redress, education and right of availability of essential goods and services. This Council is also responsible for the formulation of policies to protect and promote consumer rights. This Act prohibits false advertisement. Complaints can be filed with the authority in case of unfair trade practice or false advertisement. If the business entity is found guilty, it shall be punished with imprisonment, fine or compensation for the complainant.

Islamabad Consumer Protection Act, 1995 became a model for the provinces to follow. NWFP (now renamed Khyber Pakhtunkwa) legislature passed The North West Frontier Province Consumer Protection Act, 1997. This Act aims to protect the rights of consumers by controlling unfair trade practices like false representation of goods and services, prohibiting the sale of substandard goods, giving misleading information, false guarantee and warranty and misleading the public regarding price of the product etc. This act obligates manufacturer to publish maximum retail price on the container of every product, the nature, standard and other specifications of the product like the weight, size or volume and manufacturing and expiry date. Information should be made available for non packaged products at the point of sale. Receipt shall be issued to purchaser which states the date of sale, specifications of goods sold, the quantity, name and address of seller. The act also obligates the formulation of Consumer Protection Council on lines similar to Islamabad Consumers Protection Act, 1995.

The Act also specifies a mechanism for the redress of consumer complaints. A complaint regarding any goods sold or services provided can be filed with the District Magistrate of the District concerned. The District Magistrate may either dispose off the complaint itself or move the same to a lower magistrate. The magistrate can direct the seller if found guilty to remove defect, to replace goods with new one, to return the price or any charges paid by the customer or to pay compensation to the consumer for any loss. The magistrate can also punish the seller with fine or imprisonment.

The Punjab Assembly passed a similar Act called "The Punjab Consumer Protection Act, 2005" to provide protection and promote the rights and interest of consumers on 13 January 2005. This Act puts the liab ility of defective products on manufacturer of the product. If the consumer suffers any loss from using the defective product, a service provider shall be liable to a consumer for damages caused by the provision of services. Different clauses of the Act are similar to the one already promulgated by the NWFP Assembly.

Though these consumer specific legislation have their own demerits in terms of restrictive definitions, under representation of non-official members, tight time limits, slow and expensive judicial process etc.(Ansari & Hafeez, 2000)

The table below provides an overview of similarities and differences between the three Acts.

COMPARISON OF CONSUMER PROTECTION LAWS OF PAKISTAN.

Consumer Protection Laws

Jurisdiction, Offences, Complainants, Procedure, Enforcement, Comments

Islamabad Consumers Protection Act, 1995

Islamabad Unfair trade Practice, False Advertising

A consumer, Consumer Association, Federal Government

Submission of complaint with the Court of Session, Islamabad.

Imprisonment, Fine, Confiscation of property.

Narrow definition of consumer, Slow and expensive judicial process.

THE NORTH-WEST FRONTIER PROVINCE CONSUMERS ROTECTION ACT, 1997

The whole of North West Frontier Province.

Unfair trade Practice, False Advertising

A consumer, Consumer Association, Govt. or Civic development Authority.

Any complainant can file a complaint with the District Magistrate.

Imprisonment, Fine, Compensation to victim, Confiscation of property.

Effectively operates in favour of the supplier.

slow and expensive judicial process.

THE PUNJAB CONSUMER PROTECTION ACT, 2005

The whole of Punjab province.

Defect in Product, Defective or false service, Unfair trade

Practice, False Advertising, etc.

A consumer, Consumer Protection Council, Provincial Government.

Any complainant can file a complaint with the district coordination officer.

Imprisonment, Fine, Compensation to victim.

Consumer became powerful, Effectively operates in favour of the consumer, slow and expensive judicial process.

Rise of the Regulatory State

Even with the establishment of regulatory agencies such as NEPRA, OGRA and PTA, there is no evidence of a clear and consistent consumer welfare policy. However, under their respective laws, a consumer has been recognized as an affected party with a legitimate interest in the process of fixing the tariffs (Ansari & Hafeez, 2000).

Electricity and Power Sector Legislation in Pakistan

The most notable act regarding electricity and power is "Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997". According to this Act, National Electric and Power Regulatory Authority (NEPRA) will regulate the electric power in the country and define the term and conditions of license, standard maintenance and tariff setting. This Act also makes the Authority responsible for consumers, who will be protected against monopolistic and oligopolistic competition, provide opportunity to consumers to participate in tariff setting process and make procedures for resolving disputes between consumers and service providers.

The Act lists detailed procedure for lodging a complaint and getting redressal if not action is taken by the service provider. The complaint can be filed by a consumer directly in a written form. If the consumer is not satisfied with the redress, a copy of the complaint can be sent to the authority as a proof that the service provider is aware of the complaint. The complaint must specify the loss suffered and the remedy sought. If the service provider violates any section of the Act, its licence can be revoked.

The Act was reinforced with the help of different standards and rules which were prepared by NEPRA and approved by the Government of Pakistan. These are NEPRA (2003; 2004; 2005; 2006).

Telecommunications Sector Legislation in Pakistan

"Pakistan Telecommunication (Re-Organization) Act, 1996" was enacted in 1996 to regulate the telecommunication sector in Pakistan. According to this Act, Pakistan Telecommunication Authority was established as a regulatory authority responsible for the issuance of licenses to service providers, maintaining a check on for rendering satisfactory services and renewing their licences. According to this Act, PTA is responsible for promoting and protecting the interest of consumers, and for investigating and adjudicating complaints made by consumers against service providers.

The Act lists detailed step by step procedure for getting redressal by a consumer. Though a consumer can complain directly to PTA, it is considered appropriate to first approach the service provider in writing. If the consumer is not satisfied with the actions of a service provider, he can complain to PTA in written form. The complaint must specify the loss suffered and remedv sought. PTA will send a notice to the service provider concerned for violating the Act. If the service provider doesn’t satisfy the authority, it can be fined and in extreme case, its licence can be terminated.

Telecommunications Consumer Protection Regulations, 2009 provides real protection to consumers by setting standards and benchmarks for the telecom service operators. According to the Regulations, a consumer is free to select an operator of his choice and he must provide the service in fair, cefficient and non-biased manner. An Operator cannot withdraw its services without giving prior notice to a consumer and must follow the laid down procedure in case of suspension or disconnection. The Act defines a code of ethics for the operators. It specifies that an operator shall not use unfair practices to sell its services to customers and mislead or misinform him regarding contest, prizes or any competitions. The operator must make sure that no tax or tariff is charged from consumer without the approval of Pakistan Telecom Authority. Consumers must be informed about all the charges, tariff rates and taxes for using the service. All the operators are also bound to provide detailed billing information to the consumer.

The Regulations stipulate that the operators must entertain the consumer complaints in a timely manner. They must maintain a computer complaint handling mechanism and must publicise it to inform the consumers. Every operator is bound to maintain a round the clock call centers to help the consumers. All operators shall ensure the confidentiality of consumer information and no such information is to be made available to third party.

To protect the public from harmful rays of cellular service antennas, some rules and regulations have been enacted called Protection from Health Related Effects of Radio Base Station Antenna Regulations, 2008. The provisions of this Act aim to protect the public from harmful effects of radio waves of cellular antennas.

Oil and Gas Sector Legislation in Pakistan

Natural Gas Regulatory Authority Ordinance, 2000 was promulgated to regulate the natural gas sector in Pakistan. Under the provisions of this Ordinance, Natural Gas Regulatory Authority was established. This was replaced by Oil and Gas Regulatory Authority (OGRA) under Oil and Gas Regulatory Authority Ordinance, 2002. The Authority is responsible for fostering competition, increasing private investment and ownership in the midstream and downstream petroleum industry; protecting public interest while respecting individual rights and provide effective and efficient regulation. It has the sole and exclusive power to grant, revoke, amend or revoke licences for regulated activities and enforce compliance of licence conditions to promote efficiency, cost effectiveness, best practices, high safety and service standards. The Authority is also responsible for the resolution of complaints and disputes between a person and a licensee or between licencees (Ogra, 2007).

In order to resolve the complaints of consumers, OGRA legally binds every licensee to form a complaint resolution system which must be approved by the authority. Any person can file a complaint with the registrar for any omission done by a licensee or dealer in breach of Ordinance, rules and regulations, for non-conformity by the licensee with service standards or billing, connection or disconnection of service, metering, unjustifiable delay in service provision, safety practice, quality and quantity of natural gas, LPG or CNG supplied and prejudiced practices. Complaints are governed by Complaints Resolution Procedure, 2003 formulated by OGRA and approved by the Government of Pakistan.

An application can be filed within 90 days. The complainant must mention the redress sought from the licensee. The designated officer will advance a copy of the application to the licensee asking him for a response within 15 days of receiving the copy of application or any other period specified by the officer. Before making a decision, the designated officer shall consider the response of the licensee and may take reasonable steps to deal with the application including arranging a meeting between complainant and licensee, examination of site, sample or quantity. If the complaint is proven correct, the cost shall be paid by the licensee or the dealer. The complainant or licensee, if not satisfied with the decision of the designated officer, can appeal against the decision within thirty days of the decision.

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