Comments on the United Nations Guidelines. For Consumer Protection ( ) Malaysia

Transcription

1 Comments on the United Nations Guidelines For Consumer Protection ( ) by Malaysia d hed

2 NO 1. Paragraph 1, page 2 In general, most Member States have adopted the core objectives of the UNGCP. In many cases, such as Colombia 2, Costa Rica 3, the Dominican Republic4, the European Union 5, El Salvador 6, Egypt 7, Mexico 8,Peru 9, Poland 10 and Switzerland 11, consumer protection has been enshrined within the Constitution. The Mexican judiciary has recognized consumer rights as human rights and has supported its findings of the UNGCP 12. All countries have a Consumer Protection law, recognizing consumer rights. The right of access to non-hazardous products and the right to just, equitable and sustainable economic and social development and environmental protection are contained either in consumer protection laws or other national sectoral norms, such as competition or environmental protection laws. Malaysia has in place adequate consumer protection laws that address the core objectives of the UNGCP. The Consumer Protection Act 1999 provides for consumer rights in terms of basic needs, safety, information, choice, representation, redress and education. The Trade Description Act 2011 promotes good trade practices by prohibiting false trade description or misleading representation of goods and services. The more recent Competition Act 2010 prohibits anti-competitive agreements that reduce competition for the benefits of consumers, businesses and the economy. The Price Control and Anti-Profiteering Act 2011 enables the Government to determine prices of essential goods or charges for services in order to curb excessive profiteering. Furthermore, there are redress mechanism at Ministries and Agencies for consumers to lodge written or online complaints as well as through short messaging system (sms).

3 2. Paragraph 2, page 2 Regarding the individual objectives set out in Part I, all countries have a legal framework aimed at adequate consumer protection. However, different countries focus on different sets of objectives. While the goal of curbing abusive practices that adversely affect consumers is unanimously recognized, the objective of sustainable consumption is seldom included in national consumer protection legislations 13. Most commonly, the objectives to facilitate adequate production and distribution patterns; to encourage high levels of ethical conduct for producers and distributers; and to facilitate the development of independent consumer groups are addressed indirectly through individual or ad hoc governmental policies 14. Interestingly, the development of market conditions is either directly addressed by consumer In the Malaysian context, sustainable consumption defined as the use of goods and services that respond to basic needs and bring quality of life, while minimizing the use of natural resources, toxic materials and emissions of waste and pollutants over the life cycle, so as not to jeopardize the needs of future generations (Oslo Symposium, 1994), can be deemed to refer to sustainable development. Sustainable development is underscored in the new Economic Model as an important element in Malaysia s transformation to a high income and developed country by 2020.

4 protection laws or reserved to the application of competition laws 15. Most consumer protection agencies hold powers over international cooperation 16, although this is not commonly recognized as an individual objective in many national legal systems. 3. Paragraph 3, page 3 Some intergovernmental organizations have also embraced the objectives of the UNGCP and developed instruments and programs to help their Member States achieve them. The OECD has drafted policy instruments and guidelines in relation to all of the UNGCP core principles. Further, it carries out research,promotes information sharing and develops policy principles 17 through its Committee on Consumer Policy (created in 1969). At the inter- American level, the OAS Member States have recognized some of these principles through the Malaysia recognizes that intergovernmental organizations can play an important role on helping member states achieve the objectives of the UNGCP. In this regard, Malaysia has and continues to adopt best practices and standards in consumer protection.

5 Charter of the OAS and several General Assembly Resolutions 18. Similarly, the European Commission has developed a comprehensive policy framework for consumer protection, as contained in the European Consumer Agenda, 19 especially in relation to consumer safety, universal service and consumer rights, 20 the facilitation of independent consumer groups and the development of market conditions within its single market. 4. Paragraph 4, page 3 Finally, Consumer International suggests inclusion of consumer participation in cultural, civic and educational affairs with reference to the UN Declaration on Human Rights and Covenant on Economic Social & Cultural Rights. The Malaysian consumer protection framework is fairly robust with adequate laws and regulations emphasizing consumer rights, protection, education and redress mechanism. Malaysia is of the view that the participation of the consumer on social and cultural rights must be bound by the local laws and international conventions acceded by Malaysia. For instance, Malaysia has acceded to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) on 5 July Presently, Malaysia maintains among others reservation to Article 16(1)(a)(c)(f)(g) of the convention which is similar to Article 10(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) where Malaysia is not a State Party to the convention.

6 Therefore, Malaysia should notify the Consumers International that the inclusion of the consumer participation with reference to the Covenant on Economic Social and Cultural Rights may fall within the reservation to the Article 16(1)(a)(c)(f)(g) of CEDAW. For Reference: Article 16 of CEDAW: 1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (a) The same right to enter into marriage; (c) The same rights and responsibilities during marriage and at its dissolution; (f) The same rights and responsibilities with regard to guardianship, ward ship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount; (g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation; With respect to Article 16(1)(a) the Government of Malaysia declares that under the Syariah law and the laws of Malaysia the age limit for marriage for women is sixteen and men is eighteen. Article 10 of ICESCR: The States Parties to the present Covenant recognize that: 1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.

7 2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits. 3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law. As such the suggestion of inclusion of consumer participation in cultural, civic and educational affairs, with reference to the UN Declaration on Human Rights and Covenant on Economic Social & Cultural Rights may not be necessary in Malaysia s case. 5. Paragraph 8, Page 4 Instead, most reserve policy making for governmental authorities 32, although some agencies hold ad hoc agreements with national universities 33. Malaysia do recognized the potential positive role of universities and public and private enterprises in research and policy making. It can be shown when they were appointed as members in a council involved in making policies on consumer protection such as The National Consumer Advisory Council. Realizing the importance of consumerism issue, certain universities do offers professional programmes as well as having a specific faculty on consumerism for students to learn more about consumerism. However, Malaysia does not have any ad hoc agreement with the universities and public and private enterprises since it was based on administrative consultation

8 from time to time whenever necessary. 6. Paragraph 21, page 8 On the issue of weights and measures, as contained in GL 2796, the majority of countries have adopted relevant legislation 97. In many countries, responsibility over this issue also falls on specialized or standards agencies 98. Mexico has established a multistakeholder body (Sistema Mexicano de Metrología, Normalización y Evaluación de la Conformidad) integrating fifteen public entities, and over 2,800 private ones. In the Western Hemisphere, the OAS Member States have created the Inter-American Metrology System in order to promote regional cooperation in metrology and to help achieve the implementation of a Global Measurement System within the Americas. We would like to reiterate that as prescribed by GL27 of the guideline, Malaysia through the Ministry of Domestic Trade, Co-operatives and Consumerism had taken proactive measures to review the legislation pertaining to weights and measures as well as continuously assessing the adequacy of its enforcement. The review of the legislation as well as the related regulations aims at protecting the commercial and economic interests of consumers as well as to comply with the regional recommendation of the said legislation, in particular the ASEAN Consultative Committee for Standards and Quality on Legal Metrology.

9 7. Paragraph 25, page 10 All members have established administrative and judicial measures for consumers, and in some cases consumer organizations, to obtain redress 112 as set out in GL Experience has shown that businesses will only comply with compulsory consumer protection rules if there is a high likelihood that sanctions will be imposed for breaches of consumer protection primary rules, or if the direct and indirect cost of those sanctions would be commercially significant. In this sense, the threat of significant sanctions appears crucial for encouraging compliance with consumer protection laws. Consumer protection authorities are concerned not only with the enforcement of consumer protection laws through sanctions but also with the welfare of consumers. In so doing, sanctions can be accompanied Malaysia has Consumer Protection Act 1999 and various administrative guidelines. Consumer Protection Act 1999 is a consumer protection law which is enforced through sanctions accompanied with redress measures aimed at compensating consumers and ensuring reparations for any unlawful damages. Tribunal for Consumer Claims handles consumers redress. However, issues of health or environment are not provided under the Act.

10 with redress measures, such as corrective or complementary measures. Corrective measures are those aimed at compensating consumers and ensuring reparations for any unlawful damages. Complementary measures cover those aimed at ensuring general consumer interests, such as health or the environment Paragraph 28, page 11 There are some successful experiences on mass media information programmes of GL , namely in Costa Rica 136, Dominican Republic 137, India 138, Israel 139 and Poland 140. Some consumer protection agencies have also adopted GL 41, especially training educators 141 and the media 142. Various programmes have been conducted through mass media to reach all categories of consumers including pre-schools, primary and secondary schools as well as the universities students. Taking into considerations the young generations and IT savvy consumers, consumerism campaigns were also conducted via social media such as facebook, twitter and youtube.

11 9. Paragraph 30, page As mentioned in GL 56 there are three 150 areas of specific concern in the current guidelines: food, water151 and pharmaceuticals 152. These issues have been addressed by many consumer protection agencies albeit in an indirect manner since other governmental authorities usually hold powers 153. For example, on the area of food (GLs and 58), Colombia has implemented a programme on healthy diet through various means (labelling, advertising, food regulations, educational programmes) and Malaysia promotes the production of organic food 155 ; and conservation and sustainable utilisation of agricultural biodiversity 156. On GL 61, Switzerland reports on a sophisticated system, which allows for an effective regulatory and policy framework on pharmaceuticals while respecting intellectual property 157. Regarding GL 62, the United Kingdom reports on the comprehensive regulations on pesticides in the framework of the EU Page Malaysia (Ministry of Agriculture and Agro-Based Industry,..) 11. Page Malaysian Organic Scheme