The term “Consumer” is a popular term used world over to signify “a person who purchases goods and services for personal use”. Person in this definition certainly is a human being or an individual, and the goods and services include only those ones which are used for domestic and personal consumption. This does not include, at all, goods and services for any commercial purposes; local and international, use or entrepreneurship. Similarly, the laws for enforce-ability of the consumers’ rights deal only with this category of domestic consumers. So far as the other categories of consumers are concerned they are dealt under other relevant laws of the land.
As a matter of fact, and in the perspective of the consumer’s rights regime, it comes to the fore that the Consumers Rights were first recognized in the United States of America by the United States President John F Kennedy on 15th March, 1962. This is the reason why the World Consumer Rights Day is celebrated on this day all over the world. In this world of billions of people across the globe, their mundane existence is necessitated through availability of a large number of goods, products and services other than those bestowed upon by the nature itself for meeting their day to day human needs. This rapidly growing world not only catered for the basic needs of human beings across the globe but went far ahead from mere needs to luxuries.
The growing influx of goods, products and services furthered the cause of introducing and creating a rights based paradigm for the end users, so that an equilibrium could be had between the privileges of the goods-products-service providers and protection of the rights of consumers who consume these goods, products and utilize the services. The other purpose of such protection was to evade any manipulation and exploitation by the manufacturers of goods and products and the service providers. Consequently, the worlds’ legal systems came into action and embarked upon the legal process of enactment of laws for protection of the consumers’ rights; particularly, in the developed world in the year 1962.
The American Consumer Protection Law & United Nations Guidelines:
US consumer protection law took precedence over the others; since it set an example for other enlightened countries of the world not only to follow the illuminating steps therein but also to move a step farther in legislating consumer laws and formulating rules, regulations and policies. The European countries went a step ahead than other countries by acknowledging and guaranteeing the consumer rights amongst the fundamental rights. The legislation adopted by the European Countries and later on at the European Union level aims primarily to protect the safety, health, economic and legal interests of consumers, and by also offering redress mechanisms and general product safety systems.
The United Nations albeit growing trends of the consumer protection regime realized its significance towards society and the public at large in the comity of nations. It introduced comprehensive guidelines which were first adopted by the General Assembly in its Resolution No. 39/248 dated 16th April 1985 commonly known as “United Nations Guidelines for Consumer Protection” from the platform of United Nations Conference on Trade and Development (UNCTAD). The latter is responsible to promote these Guidelines and motivate the Member States to create awareness amongst the masses, business community and proactive members of the civil society in order for rendering substantial help in promoting consumer protection in the provision of public as well as private/domestic goods and services.
The United Nations Guidelines on Consumer Protection provided encouragement and impetus to the Developing Member States and emphasized to a great extent for enactment of consumer protection laws and formulate rules, regulations and policies in their countries in this respect. They were required to make such enactments which should be more conducive to their economic, social, political and environmental circumstances. These guidelines encouraged and emphasized the member states to indulge into international, regional and sub-regional cooperation on the consumer rights. In pursuit whereof, the developing countries embarked upon the process of legislation in this area of public interest; including Pakistan.
Pakistan’s First Consumer Law:
The Islamabad Consumer Protection Act, 1995
Pakistan introduced its first ever legislation for creating, promoting and advancing the cause of its consumers from amongst the public in the year 1995 by enacting and promulgating “The Islamabad Consumer Protection Act, 1995. Preamble of this Act reads that “an Act to provide for promotion and protection of the interest of consumers”, which by its bare reading connotes that its scope and purpose is not restricted to the protection of consumers rights and interests only but also to promote and strengthen them by devising policies, procedures and mechanisms for their enforcement. From perusal of this Act, one can also find that it is more prone to providing administrative remedies to the consumers rather than a strong judicial and legal mechanism and forum for legal remedies and judicial enforcement of consumers’ rights as well.
Features of Islamabad Consumer Protection Act, 1995
Salient features of the Islamabad Consumer Protection Act, 1995 would surely add to our understanding of the law in terms of rights, obligations, procedures, mechanisms and the forums available for redress of the grievances of the consumers. The same are outlined hereunder:
Definitions: In the portion of definitions, we find a comprehensive account of characters involved in this legislation, which complement each other to promote the objectives of this law.
- Authority; is the Court of Sessions of Islamabad, which by designation is District and Sessions Judge, Islamabad. Role and enforcement powers of the Authority shall follow in the later discussion.
- Complaint; has a broader perspective including a consumer, a consumers’ association, the Federal Government, Chief Commissioner Islamabad, Capital Development Authority (CDA), or any person so authorized on their behalf to file a complaint before the Authority for redress of grievances.
- Consumer; the definition is comprehensive, and includes any person who, buys goods or hires services against a full or part payment or promise of payment under any system of deferred payment or hire purchase. However, it does not include a person who obtains goods or services for re-sale or for commercial purposes.
- Council; means a Consumers Protection Council Islamabad to be established under this Act. However, this Council has not so far been practically established in the Islamabad Capital Territory for the protection of its consumers.
- Services; the domain of services is vast and extensive; however, some of the known and commonly availed services have been defined in the definition under the Act. Provision of facilities in connection with banking, financing, insurance, transport, manufacturing, accountancy, processing, supply of mechanical or any other form of energy, boarding or lodging, entertainment, medicine, education, construction work, amusement, catering, security, or purveying a news, or other information, and similar other services. However, rendering of any service free of charge, or any personal service is not included in this definition.
- Unfair trade practice; 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, adopts one or more of the following practices, causes loss or injury through hoarding, black-marketing, adulteration, selling of expired drugs, food items and commodities unfit for human consumption, or charging for the goods and service in excess of the prices fixed by an authority authorized to do so under any law or in furtherance of such sale, use or supply makes any statement, whether orally or in writing, or by chalking on the walls or through sign-boards or neon-sing or by distributing pamphlets or by publication in any manner, including through electronic media, by;
- falsely representing that the goods or services are of a particular standard, quality, quantity, grade, composition, style or mode;
- falsely representing any rebuilt, second-hand, renovated, reconditioned or old goods as new goods;
- falsely representing that the goods or services have sponsorship or approval of the competent agency or authority or possesses specified characteristics, performance, accessories, uses or benefits which such goods or service do not have;
- giving misleading representation of the need for, or the usefulness of any goods or services;
- 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;
- falsely offering for sale or on lease any premises, house, shop or building with specified facilities or with the promise to deliver possession within specified periods 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;
- misleading the public concerning the price at which a product or products or goods or service have been, or are ordinarily sold or provided;
- 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;
- falsely representing for provision of service by professionals and experts, including by doctors, engineers, advocates, mechanics teachers, hakeems and spiritual healers;
- giving false or misleading facts disparaging the goods, service or trade of another person, firms, company or business or business concern;
- 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;
- 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; and
- falsely gives description of commodities and services offered through mail order.
The definitions above have, more or less, been reproduced verbatim in order to give a sound idea to the readers of the scope and extensive approach of the legislation, which encompasses almost all kinds and colors of goods and services provided in our society. This is also evident that an effort has been made through this legislation that most of the areas dealing with public goods and services should be covered so that public at large could benefit from it. This is however, also a matter of fact that people will only be benefiting from this law; provided its enforcement mechanism is utilized to its fullest to the benefit of the people. Else, objectives of this legislation will not be achieved and its spirit will face a painful defeat.
The Islamabad Consumer Protection Act provides; inter alia, for the enforcement mechanism of consumers’ rights and for this purpose it created certain institutions and/or platforms for supervising the enforcement of the law vis a vis for carrying out the purposes of this Act. These follow as under:
- The Council; section 3 of the Act constitutes Consumer Protection Council, Islamabad comprising a large number of relevant and stakeholder government departments, offices as well as private and prominent individuals from amongst the public. The officials from the government side include interior, finance, health, food, agriculture and livestock, industries; not below the rank of Joint Secretary. Chief Commissioner Islamabad Capital Territory and the Chairman Capital Development Authority of Islamabad. Interestingly, the Chairman of the Council is to be chosen by the Federal Government from amongst the prominent social workers permanently residing in Islamabad. This has, perhaps been envisaged to maintain impartiality of the Council in the matters of public importance. Importantly, a lady social worker resident in Islamabad has also secured place in the Council.
The objects and functions of the Council are numerous but most importantly and mainly it is to determine, promote and protect the consumer’s rights. Section 5 of the Act outlines these objects and functions and the same are reproduced verbatim:
- right of protection against marketing of goods which are hazardous to life and property.
- right of information about quality, quantity, potency, purity, standard and price of goods and services.
- right of access to a variety of goods at competitive prices.
- right for redress against unfair trade practices of unscrupulous exploitation of consumers.
- right of consumer’s education.
- right of easy availability of services.
Apart from the functions and responsibilities supra, the Council’s other obligations include formulation of policies for promotion and protection of the rights of the consumers, fair and honest trade practices by the manufacturers, producers and suppliers of goods and services in relation to interest of the consumers and their effective implementation. The Council is also responsible for abridging the relationship between the Government, manufacturers, suppliers, producers and the consumers.
- The Authority; section 2(a) of the Act defines Authority as the “Court of Session”, which means that the Court of District and Sessions Judge of Islamabad is the Authority to hear, entertain and adjudicate upon the complaints made by the consumers in this Act. Section 6(1) of the Act enunciates that as soon as a consumer complaint is received by the Authority from an individual or the Council, the Authority has the mandate and power to investigate the complaint and determine the rights of the parties involved as well as extend relief to the party claiming it. Section 6(2) of the Act makes it mandatory for the Islamabad Capital Territory Police, Capital Development Authority (CDA), Islamabad Capital Territory Administration i.e. offices of the Chief Commissioner, Deputy Commissioner and Assistant Commissioners, as well as the other Federal Government institutions to act in aid of the Authority in order to enable it to execute its functions and perform its duties for the benefit of the public at large.
If we move forward to explore this Act further, we find that Section 8 provides for the procedure for disposal of the complaints filed under this Act by the complainants. Section 8(1) of the Act authorizes or confers a right on any person and/or a resident of the Islamabad Capital Territory to file a complaint with the Authority i.e. Court of District & Sessions Judge, Islamabad having a grievance of any sort in respect of any goods sold or delivered, or any service provided or supplied or against any unfair trade practice; which the law explicitly or impliedly prohibits. Apart from the individual’s right for filing complaint, section 8(2) of the Act, extends this right to the Council as well to file the complaint before the Authority on unfair trade practice brought to the notice of the Council.
Section 8(3) of the Act authorizes that on receipt of the complaint by the Authority filed either by any individual complainant or from the Council, the Authority shall examine the complaint; which means that it shall assess and evaluate the documentary or other evidence available on record and filed along with the complaint and will satisfy itself that complaint is genuine and that complainant is an aggrieved party. On satisfaction of the Authority that any consumer right of the complainant has been infringed or violated, it shall serve or issue a notice to the Respondent i.e. the other party against whom a complaint has been made. The other party shall be required under this law to file a reply or its defense in response to the complaint against it within a period of seven days of the receipt of the said notice.
As soon as the reply from the Respondent i.e. the other party, has been received by the Authority in response to the notice of complaint, the Authority shall provide both the parties an opportunity of being heard; which means that both the parties shall be given separate opportunities to argue their cases and stances before the judge as do the lawyers do so that both the parties get equal opportunity to satisfy the judge for deciding the case in their favor. On the other hand, if the Respondent fails to submit reply/defense to the Authority then it is discretionary to the latter to proceed ex-parte against the former. And if the Authority so requires and deems it necessary for doing justice to the parties, it can conduct an inquiry into the matter and then pass appropriate orders accordingly and decide the case in favor of either party.
Apart from the aforementioned procedure for filing and fate of consumer complaint vis a vis powers of the Authority to adjudicate upon the consumer’s complaint; a summary procedure has been introduced in the legislation through an Amendment Act namely the Islamabad Consumer Protection (Amendment) Act, 2011. In this amendment Section 8-A has been incorporated; which gives powers to the special Magistrate to try and dispose off the consumer’s complaints summarily or expeditiously as a criminal complaint provided under the Code of Criminal Procedure 1898. The Magistrate’s powers are in addition to the powers of the Authority exercisable separately and exclusively. The jurisdiction of the special Magistrate can be invoked on the instances of infringement of consumer’s rights as follows:
- Black marketing
- Adulteration of food items
- Selling of expired items of food
- Other items unfit for human consumption
- Over-charging than approved rates for goods and services
Not only this, but the section leans a step further to empower the special Magistrate for enforcing the consumer’s rights as well as penalizing the culprits on the spot. Whereby, if he finds through reliable sources that violation or infringement of the consumer’s rights has taken place somewhere and committed by any person; it has the power and authority to enter the place or premises where such contravention has occurred, and conduct a trial there and then by punishing the culprit on the spot with imprisonment of up to six months or fine extending to rupees fifty thousand or even both the punishments. Moreover, this section also favors the aggrieved person or the defaulter/culprit by providing him a right to appeal to challenge the decision of the special Magistrate before the Authority within a period of fifteen days.
Moving ahead with the Act and beside the powers of the special Magistrate to award punishment to the culprit, the Authority is also empowered under section 9 of the Act to punish the offender / violator of the provisions of this Act after due adjudication of the complaint. Following is the classification of punishment:
- It may award imprisonment extending up to two years or with fine amounting to rupees forty thousand or with both to the offenders for violating the provisions of section 5 of the Act mentioned above.
- It may award imprisonment extending up to two years or with fine amounting to rupees thirty thousand or with both to the offenders for violating the provisions of section 7 pertaining to false advertisement through electronic or print media or by chalking on the walls.
- It may award monetary compensation to the aggrieved consumer to the extent of loss or damage he sustained by violation of his consumer’s rights or through any unfair trade practice.
- It may order that any goods or material may be confiscated and destroyed; if the Authority considers it necessary and expedient for protection and enforcement of the consumer’s rights of other consumers.
In all the legal and judicial systems of the world, it is mandatory for the systems to provide the right to appeal to every person who has been awarded one or several punishments under any law, in order to do the complete justice to the parties. Similarly, Section 10 of this Act provides an opportunity and confers a right to the person aggrieved by the order / punishment awarded by the Authority to file an appeal to the High Court against the order of the Authority under the provisions of the Code of Criminal Procedure 1898. Then a party so aggrieved by the order / decision of the High Court certainly has the right to knock at the last and final doors of the Supreme Court of Pakistan. Beyond that the domain of the consumer’s rights as well as the civic rights of a citizen do not extend and attain finality at this juncture.