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ARE THE CONSUMER PROTECTION LEGISLATION EFFICACIOUS

ENOUGH TO PROTECT THE CONSUMER RIGHTS IN PAKISTAN OR


ELSE A NATIONAL STRATEGY IS NEEDED TO EVOKE MASSIVE
AWARENESS, ENSURE IMPLEMENTATION OF EXISTING LAWS,
APPORTION LIABILITIES AND PROTECT OUR CONSUMER?

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CONSUMER PROTECTION LEGISTATION IN PAKISTAN

Governments should develop or maintain a strong consumer protection policy, taking into
account the guidelines and relevant international agreements. In so doing, each 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 its benefits proposed measures.

(Excerpts from the United Nations Guidelines for consumer protection) (1)

INTRODUCTION

Law and Justice System reforms have been high on the agenda of international political as well as
development, donor and leading agencies for the past two decades or so. As a consequence there
has been a great deal of debate revolving round the legal reform process, and several new laws
previously unheard of in most of the developing countries have been introduced (2). In addition to
international pressures, reforms have also been high on the agenda of civil society organizations.
A survey of the history of consumer protection law reveals that it has gained currency more due to
the efforts of the civil society organizations working for consumer rights and the spread of market
economy along with the growth of globalization (3). The introduction of United Nations
Guidelines for Consumer Protection has been ascribed to the efforts of international (mostly
western) voluntary consumer protection associations and organizations (4). The very fact that the
UN has laid down guidelines for its member countries shows the importance attached to consumer
protection internationally.

NEED FOR CONSUMER PROTECTION

The necessity of adopting measures to protect the interest of consumers arises mainly due to their
helpless position and the unfair business practices. No doubt consumers have the basic right to be
protected from the loss or injury caused on account of defective goods and deficiency of services.
However, consumers are unable to make use of their rights due to lack of awareness and ignorance.
Under certain circumstances, we are helpless in the sense of our inability to verify the quality of
products. For example, as consumers we have the right to choose the goods of right quality from

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a variety of similar goods available in the market. But often we fail to make the right choice
because of misleading advertisements by which we are carried away and buy sub-standard goods.
Above all, consumers are not fully aware of remedies open to them if goods are defective or there
is deficiency of service. Steps must be taken to protect consumers from business practices which
are unfair and may cause loss and injury to health and other dangerous effects.

CONSUMER RIGHTS

The importance of consumer rights lies in their enforceability, which in turn depends largely on level
of consumer education and awareness. In other words, it is not enough to have dynamic consumer laws
in the country. There must be an equal thrust on education of all citizens on the consumer rights
available to them and the mechanisms through which these rights, if violated can be redressed.

The rights of consumer which are being sought to be promoted and protected through the legislative
mandate include:

(a) The right to be protected against marketing of goods and services which are hazardous to life and
property;

(b) The right to be informed about the quality, quantity, potency, purity, standard and price of goods
or services, as the case may be to protect the consumer against unfair trade practices;

(c) The right to be assured, wherever possible to access to variety of goods and services at competitive
prices;

(d) The right to be heard and to be assured that consumers interests will receive due consideration at
appropriate fora;

(e) The right to seek redressal against unfair trade practices or restrictive trade practices or
unscrupulous exploitation of consumers; and

(f) The right to consumer education.

From all these rights, it is the right to consumer education that can be said to be of paramount
importance, since this is the gateway through which all the rights can be secured. An aware consumer

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not only protects his own rights but also induces efficiency in the economy which enables a country to
become globally competitive.

BRIEF BACKGROUND

Certain elements of consumer protection, as understood in our time, can be found in the older
statutes in the English Common Law as well as in other denominations, for example laws
concerning the contracts, sale of goods, weights and measurements, pure food etc. (5). Many
writers trace the history of certain concepts of consumer protections in the older traditions and
civilizations (6). Modern consumer protection may only be a continuation of the thousands of years
old considerations and traditions but in different form with a different emphasis. It is more
concerned with comprehensive, formal and legal protections especially the ones for consumer
dispute redressal mechanisms and standards of care and liability by manufacturers and service
providers. The consumer protection law in its various present-day forms across various
jurisdictions is relatively new and still struggling to make a niche in the realm (7). For example, in
India, a quasi-federal state like Pakistan, the consumer protection Act was enacted in 1986
(hereinafter referred to as COPRA) at the federal level (8) but it look several years before the
statute became really functional in the mid-1990s with the establishment of consumer disputes
redressal fora.

CONSUMER PROTECTION IN PAKISTAN.

Unlike India, there is no one statute to protect the consumer in Pakistan, as none has been
introduced under the federal statutory umbrella. The reason for this is said to be the lack of
constitutional jurisdiction for the enactment of consumer protections law at the federal level (9).
Therefore, it is said, and this area falls in the Provincial jurisdiction. However, this argument has
been debated and disputed by certain consumer rights organizations.

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Without going into the merits of the arguments for and against the Federal Governments
jurisdiction to legislate regarding the consumer protection, it may well be argued that in a federal

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structure different states and provinces may have different statutes to deal with the same area of
legislation and yet conform to certain national and international standards and commitments such
the USA and Canada. In India too, various states have adopted their own sets of rules to be
followed for the purpose of consumer protection simply in order to conform to the already existing
state legal infrastructure. Pakistan being a signatory to the Guidelines, the federal government must
necessarily spell out its approach, which may be there in the form of a uniform law (as done in
certain federal structures such as in the US (10)) or at least a federal/national policy.

In the absence of a federal statute and even policy framework, provinces under pressure mainly
from international donor and lending agencies (11) enacted their own consumer protection laws.
As shall be seen, there is an obvious lack of genuine political will and interest in the enactment,
strengthening and enforcement of consumer protection laws in Pakistan. Consequently, provinces
have consumer protection laws, where they have been enacted, that vary in procedures, provision
of infrastructure and strength of dispute redressal mechanisms to an undesirable degree.

Consumer Protection Laws in Pakistan

At present there are four consumer protection laws in force in various parts of Pakistan, namely:

1. The Punjab Consumer Protection Act, 2005 (hereinafter to as PCPA)

2. The Balochistan Consumer Protection Act, 2003 (hereinafter referred to as BCPA)

3. The NWFP Consumer Protection Act, 1997 (hereinafter referred to as NCPA)

4. The Islamabad Consumer Protection Act, 1995 (hereinafter referred to as ICPA)

(Hereinafter collectively referred to as Consumer Protection Laws or CP Laws). (12)

An ordinance (Sindh Consumer Protection Ordinance, 2004) promulgated in the province of Sindh
has since lapsed, as the same was not presented before the provincial assembly (13). Territories
and areas falling under the Federal or provincial administration with or without a constitutional
status (such as FATA and PATA, and so called Northern Areas) have no consumer protection
laws.

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THE UN GUIDELINES

The aims prescribed under the general principles are:

Protection of consumers from hazards to health and safety.


Promotion and protection of the economic interests of consumers.
Access of consumers to adequate information to enable them to make informed choices
according to individual wishes and needs.
Consumer education, including environmental, social and economic impacts of consumer
choice.
Availability of effective consumer redressal mechanism.
Freedom to form consumer and other relevant groups or organizations and the opportunity
of such organization to present their views in decision-making processes.
Promotion of sustainable consumption patterns.

2 STATUS OF IMPLEMENTATION

All the above-mentioned statures as a matter of routine and formality prescribe that they shall
come into force at once (14), however, as shall be seen therein, none has so far become functional
in the true sense. All these laws prescribe the establishment of two institutions:

Consumer Protection Councils (CPCs);


Consumer Courts.
a) Consumer Protection Councils

Consumer protection council is the only forum provided for policy input for consumer protection,
and this is where a potential formal effective role of consumer rights associations exists. But in the
absence of consumer protection councils this cannot materialize. Obviously there is an urgent need
for the formation of CPCs for invigorating the process of reviewing and modifying available laws
and their implementation. Non-existence of these councils only reflects poorly on the attitude of

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our governments and causes negative marking for Pakistan internationally. Participation of
consumers in the process of consumer protection is also said to be an important ingredient of
consumer protection policies. It is felt that one way of strengthening consumer participation is
greater representation on the consumer protection councils of consumer rights associations to
articulate consumer concerns. Without the articulation of consumer concerns in policymaking
forums, it is difficult to see how the ultimate goal of consumer welfare may be achieved. What is
need are the formation of CPCs and their active role and the improvement of CP Laws.

b) Establishment of Consumer Courts

All the enacted laws provide for the establishment of consumer courts with the exception of ICPA,
for example, section 12 of BCPA prescribes for the establishment of consumer courts and, in the
alternative, empowers the provincial government to confer powers of the court on judicial
magistrate to act under the law. Similarly, Section 26 of PCPA says:

The Government shall, by notification, establish one or more separate Consumer courts in each
district to exercise jurisdiction and powers under this Act.

However, no consumer courts have been notified in Balochistan, and in Punjab and NWFP though
consumer courts in 11 districts are said to have been notified, they are yet to be established and
made functional. Consumer courts are usually provided for around the world as lower courts or
forums parallel to the existing ordinary courts for the purpose of providing speedy redress of
consumer complaints.

STRUCTURE OF GRIEVANCE REDRESS MECHANISM

It may be argued that provision of an effective mechanism for consumer grievance redress is the
foremost characteristic of useful consumer protection law and policy. This argument is based on
the understanding that wherever there are liabilities and obligations, violations of relevant legal
rights can only be sought through effective redress mechanism. Pakistan is signatory to the UN
Guidelines and is therefore it is her moral and international obligation to frame a policy or to
actively pursue enactment of laws under the guidelines. It is, therefore, reasonable to see how far
the laws framed in Pakistan follow the guidelines as a reference point. Among other things, the

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UN Guidelines are aimed at achieving in consumer protection laws and policies the availability
of effective consumer redress.

(i) Is it Effective?

Availability of effective consumer redress mechanism is the single most crucial area without which
there cannot be any protection of consumer rights. Effectiveness of a grievance redress mechanism
constitutes interlaid, efficiency in terms of time taken for disposal of cases. However, the same
does not seem to be on top of the heads of our legislators.

(ii) Effectiveness in Terms of Time Consumption

Take the case of ICPA, for instance. Filing a consumer complaint is possible in the Islamabad
Capital Territory, where the consumer court as prescribed is already in existence in the form of the
Court of Sessions. So far the Sessions Court is concerned, it is extremely doubtful if this is an
effective redress forum. One, for the reasons, that lower courts in Pakistan are burden with huge
backlog of cases. Secondly, even if the existing court itself is supposedly efficient in terms of time
spent per case, the supporting infrastructure required for the disposal of consumer complaints,
including judges trained deal with consumer complaints, testing laboratories and other supporting
rules and regulations etc. are missing. Thirdly, no time limit is prescribed in ICPA for the disposal
of complaints after its filing. This kind of opened situation is a potential threat to the very legal
structure sought to be established under the different consumer protection regimes in Pakistan.

In the PCPA, time limit prescribed for disposal of a complaint by consumer court is six months, a
period too long to discourage even the most patient of consumers, especially with small claims,
from purposing their cases. However, on the other hand, where a consumer can file a complaint
before the District Coordination Officer, there is no time limit for disposal of complaints.

Bureaucracy in Pakistan is not known for quick and efficient disposal of public complaints. Why
should then one expect efficient disposal of consumer complaints especially when there is no time
limit prescribed for the same. Consumer protection policy and law are said be laid down with the
aim of empowering consumers, and the objectives are understood to be consumer welfare, access
to justice and participation in governance.

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(iii) Effectiveness in terms of quality

The other important constituent of effective consumer redressal mechanism is the quality of
decision-making. The role of judges as well as the support staff in quality decision-making is of
utmost importance. Again, available human resource is not well trained to provide quality disposal
of consumer grievances. There is an urgent need to improve the quality of training imparted to
judges who will conduct proceedings in this area. It would not be out of place to stress that certain
level of education and courses are prescribed and made necessary to be attended by judges
conducting proceeding in the consumer courts.

(iv) Challenges for the judiciary

Our legislatures qualifications or criteria for the judges who will preside over the consumer courts
have not been mentioned in any of the consumer protection laws in force in Pakistan. Consumer
protection is a somewhat specialized area with a mix of law, economics and knowledge of science,
modern technology, thus needs to be adjudicated by specialist judges. The Indian law, COPRA,
which has been described as a comprehensive law, while providing for quasi-judicial forums for
consumer dispute redressal also prescribes the qualifications of the members of various forums.
Section 10 of COPRA is reproduced below:

Composition of the District Forum.____ (1) Each District Forum shall consist of, - -

(a) a person who is, or has been, or is qualified to be District Judge, who shall be its
President;

(b) two other members, one of whom shall be woman, who shall have the following
qualifications, namely:

(i) be not less than thirty-five years of age,

(ii) possess a bachelors degree from recognized university,

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(iii) be persons of ability, and standing, and have adequate knowledge and
experience of at least ten years in dealing with problems relating to economics,
law, commerce, accountancy, industry, public affairs or administration

Criteria for the selection of members of the appellate forums (or the state commission working in
their original jurisdiction) are further enhanced. For example, S.16 of COPRA says:

Composition of the State Commission:- (1) Each State Commission shall consist of:

(a) a person who is or has been a judge of High Court, appointed by the State Government,
who shall be its President

It goes on to say:

Provided that not more than fifty per cent of the members shall be from amongst persons having
a judicial background.

The qualification of at least ten years in dealing with problems relating to economics, law,
commerce, accountancy, industry public affairs or administration for the members of consumer
dispute redressal for a shows the realization of the fact that members/judges to run the consumer
fora/courts need to have some specialized knowledge in order to effectively discharge their duties.

The reference to the Indian law is made only for comparative purpose and to indicate an important
dimension of the issue. The Indian law provides for the Alternate Dispute Resolution whereas
there is preference for a purely judicial forum in the Pakistani laws.

In any case, in the absence of an effective consumer redress mechanism, it is not possible to
achieve the aim of promotion and protection of the economic interests of consumers as without
the provision of the former the latter cannot be achieved.

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RECOMMENDATIONS:

In view of the foregoing, two important areas of concern regarding the state of consumer protection
in Pakistan can be pointed out. One is the lack of will on part of governments to implement the
consumer protection laws as they exist; the other is the lack of well thought-out provision for effect
grievance redress mechanism in terms of both the law as well physical infrastructure.

In order to make consumer protection more viable, following concrete steps are recommended:-

Development of a policy framework at the National Level whereby consumer protection is


accorded its due weightage
Wholehearted implementation of the existing laws be ensured through provincial
governments.
Weaknesses and lacunas of consumer redress mechanism must be removed through
primary legislation.
Quality of human resources (Judiciary) available be enhanced by training and education
for better implementation of available laws through the provision of efficient grievance
redress mechanisms.
Participation of the citizens and consumer protection associations be increased by making
Consumer Protection Councils functional.

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CONCLUSION

All agencies of the Government shall act in aid of the Consumer Court in the
performance of its functions under this Act.
No suit, prosecution or other legal proceedings shall lie against any functionary under this
Act, acting under the direction of the Consumer Council or the Government for anything
which is in good faith done or intended to be done under this Act.
The Government may, by notification in the official Gazette, make rules for carrying out
the purposes of this Act.
If any difficulty arises in giving effect to any of the provisions of this Act, the
Government may make such order, not inconsistent with the provisions of this Act, as
may appear to it to be necessary or expedient for removing such difficulty.

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Bibliography

1. The United Nations Guidelines for Consumer Protection, Resolution No.39/248, dated:
09.04.1986 as expanded in 1999, UN Doc. No. A/C/254/L.24, Principle E. Available at
http://www.un.orgg/esa/sustdev/sdissues/consumption/english.pdf (last visited on 02.08.2006)
2. A cursory glance through the policies adopted by lending institutions such as the World Bank,
Asian Development Bank, International Monetary Fund and International Development Institutions
such as Department for International Development, UK, as well as the United Nations.
3. V.Balakrishna Eradi, Consumer Protection Jurisprudence, (Delhi: LexisNexis-
Butterworths,2005), and Ronaldo Paroto Macedo Junior, Globalisation, Regulation and Consumer
Law, at http://islandia.law.yale.edu/sela/macedoe.Pdf
4. V.K.Agarwal, Consumer Protection-Law and Practice, (New Delhi: B.L.H. Publishers
Distributors Pvt. Ltd., 1997; 3rd ed.)
5. Sale of Goods Act, 1930 the Pure Food Ordinance, 1960 etc.
6. Supra note 3 at p.3. Eradi Traces the presence of consumer considerations in the Vedic age (5000
BC-2500 BC).
7. Indian Consumer Protection Act, 1986.
8. http://fcamin.nic.in/EventsDetails.asp?Eventld =591&Section=Act%and %20Rules&ParentID=0I
Parent=1&check.
9. Concurrent Legislative list and Federal Legislative List; 1973 Constitution.
10. Uniform Consumer Credit Code, Uniform Sales Practices Act, 1974 & 1968, Uniform Deceptive
Trade Practices Act, 1964 & 1996 (revision).
http://www.law.cornell.edu/uniform/vol7.html#concc.
11. Only the PCPA is available on a website at http://punjablaws.gov.pk/laws/477.html.
12. Concerns were expressed by help Line Trust, a Karachi based voluntary consumers association, in
a letter addressed to the Editor, Newspost, The News International, April 18, 2005, available at
http://www.jang.com.pk/thenews/apr2005-daily/08-04-2005/open/newspost.html
13. Sec. 1(3) of PCPA, ICPA, BCPA & sec.1(iii) of NCPA.
14. http://www.un.orgg/esa/sustdev/sdissues/consumption/english.pdf (last visited on 02.08.2006)
15. http://islandia.law.yale.edu/sela/macedoe.Pdf
16. http://www.law.cornell.edu/uniform/vol7.html#concc

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