Training for Strengthening Consumers Association of Bangladesh Bangladesh Quality Support Programme Funded by: EU and NORAD Implemented by: UNIDO Conducted by: Consumers International, Kuala Lumpur Office (CI-KL) In cooperation with: Consumers Association of Bangladesh (CAB) & Government of Bangladesh Bangladesh Quality Support Programmme UNIDO Project: EE/BDG/05/002 MEMORANDUM to STRENGTHEN THE CONSUMER RIGHTS PROTECTION Act (CRPA), BANGLADESH Prepared based on the Recommendations from the five Divisional Workshops, the National Consultation on Strengthening CRPA & CI's Research on CRPA benchmarked against the UN Guidelines on Consumer Protection 1985 (Amended 1999) INTRODUCTION In April 2009, the Government of Bangladesh enacted the Consumer Rights Protection Act (CRPA) in the National Parliament. The Act is to provide protection of the rights of consumers, prevention of anti-consumer rights practices and for the purpose of making provisions for matters connected therewith. In form, the Act shares much with comparable legislations from India and South Africa. Though the Act has been passed, promulgation of appropriate rules and regulations including setting up of an effective institutional framework at the district level under the National Consumer Rights Protection Council is still underway. In addition, the Act in general has been passed with many inherent weaknesses that needs to be addressed to ensure a broad ranging effective system of consumer protection in Bangladesh. Consumers International (CI) in cooperation with Consumers Association of Bangladesh (CAB) with the support of EU-NORAD funded BQSP Project implemented by UNIDO towards providing services to strengthen Consumer Association of Bangladesh conducted five divisional level workshops in Barisal, Rajshahi, Sylhet, Khulna & Chittagong and a National level Consultation on CRPA in Dhaka from March to June 2010 to build consensus from the larger sector of society to review the CRPA in light of current consumer challenges being faced and remedies available. These challenges and recommendations from the different stakeholders, who participated in the deliberations, included CAB representatives, academia, like minded NGOs, media, professionals, Government officials, elected representatives and businessmen have been collated into this Memorandum.
Bearing in mind both the importance of protecting consumers and the contribution this will make to economic and social development, it is important that the Government considers the adequacy of the present Act, make necessary amendments to ensure its effectiveness and to assign sufficient human as well as financial resources and provide institutional arrangements to implement and enforce the law for the larger interest of consumers in Bangladesh. The provisions of CRPA is to provide for the protection of the rights of the consumers through standards and rules and setting up procedures and structures to prevent anti-consumer rights practices in the marketplace. In spite of CRPA's elaborative provisions on different consumer protection practices, the following areas have been highlighted by CAB through the consultations that need improvement. 1. DEFINITIONS Few definitions in the Act are not clearly or sufficiently focused. The definition of adulterated food and even the definition of 'consumer' needs to be reviewed. The Act should put special emphasis on women as consumers as they constitute a major component of consumers in the market. Furthermore, the definition of a consumer encompassing a trader, retailer, and wholesaler is wide and ambiguous. The Act does not define 'misleading' advertisement which is one of the major violations of consumer rights and no provisions are there in the Act to check these misleading practices. For the Act to be relevant and operational effectively, these definitions need to be specific, transparent and gender sensitive. Stringent provisions on these misleading advertisements must be included in the Act. 2. SCOPE The CRPA, 2009 does not provide any protection against unfair contract terms or one sided contracts to the detriment of the weak and isolated consumers. The Act does not address issues of consumer rights protection in new and emerging areas such as of e-commerce, tuition/coaching centres, correspondence courses that are currently on the increase nowadays. The standard international concept of strict liability has been compromised with the provision of section 78 that shifts burden to consumers to prove fault of ' innocent ' sellers. The participants in the workshops and consultation have highlighted adulterated medicines as one of the challenges faced by them but the Directorate General (DG) under section 72 and 73 has no capacity to take action in case of adulterated or fake medicines or against private sector health services. Section 4 provides exemptions to 'areas', which is a clear discrimination in light of consumer rights that requires universal protection. The National Consumer Rights Protection Council should develop a 5 year Action Plan to identify critical areas of consumers access to essential needs and develop appropriate strategies. 2
Amendments to the law should be made to include 'unfair contract terms' Incorporate the international concept of strict liability' and 'bona fide sellers' should be clearly defined under section 78.. It is also recommended that the essential concept of warranty liability be incorporated in the CRPA, 2009. 3. SERVICES The Act provides for protection of basic rights which is applicable to all service providers without marking any distinctions for liability for the performance of defective services. It does not contemplate the use of sectorspecific regulations and there is no standard or criteria to measure defective services, for example, delay in construction vs delay in hospital care. It is recommended that sector specific regulations are laid out in the Act. There should be clear criteria/ standard and mechanisms in place to measure and monitor defective services. 4. CONSUMER REDRESS AND ACCESS TO JUSTICE Section 62(3) and 76(6) of the Act provides that the consumer has to pay the fees to test the samples of products in laboratory when complaints are made. This is likely to work as a great impediment for consumers in making complaints. The time limit to make a complaint within 30 days of the cause of action is too short and unfair as provided in section 60. The defect or damage of product or services may not be visible within 30 days. Other countries have a longer time limitation. For example: India: 1 year; Malaysia: 3 years. Under section 60, the only organ enjoying the right to access the court in consumer rights is the Directorate of Consumer Rights Protection, more specifically the Director General (DG) of the said body or any other official so authorized by the DG. Care must be taken to ensure that consumers at every level, right from upazilla level to district and divisional level must be able to lodge complaints easily. Consumer associations can advice consumers on how to make complaints but they lack resources to carry this out effectively. Section 71 further limits the filing of any criminal proceedings accused of anti consumer rights practice directly to first class or metropolitan magistrate. Section 61 further provides that if DG does not submit a charge sheet for criminal proceedings to magistrate within 90 days of lodging the complaint, no further action will be taken. This is a betrayal of the consumer's right to justice and legal remedy as section 66 indicates that only if a criminal proceeding is instituted, the consumer can file a civil suit. Section 76 further provides that the DG 'may' impose a fine which further limits the consumers' share in the fine if action is not taken. There are no mandatory requirement for the DG or magistrate to submit reasons or investigation reports for not taking any further action under section 61 and 62. For small or petty claims by consumers who are disadvantaged.poor and illiterate, there is no alternative /informal dispute resolution mechanisms to assist them in accessing justice as provided for under the UN Guidelines for Consumer Protection 1985 (as amended in 1999). 3
These provisions need fundamental changes to enable representation by individual consumer interest and consumers collective interests more efficiently. Relying on the courts to protect consumer right enforcement by individual consumers through private actions has to be made important as per the common-law systems where judges will have the enforcement powers. Judicial decisions can have a wide reaching precedent effect and thus can secure benefit to the public at large even though the decision is based on the facts in one particular case. Court actions are effective in part because judges are presented with real fact situations and actual injury to individuals. Class action as well as contingent fees have to be recognized under the Act. Section 61 and 62 must be reviewed to incorporate time limits for the DG and magistrate to submit their investigative reports and reasons for not taking the complaint further. In addition, it is recommended that alternative forums like Small Claims Procedure in the magistrate Court or Tribunal for Small Claims for redress of consumer complaints are established to make it easier for consumers to have quick, simple and cheaper redress and facilitate businesses to make changes in their trade practices in accordance to the provisions of the Act. Government should provide support to consumer organisations around the country adequate resources (funds, training, and infrastructure) to act as consumer advice and complaints centres. 5. REPRESENTATION OF CONSUMER INTERESTS IN NCRPC Although in the National Consumers Rights Protection Council-NCRPC, there is provision for one consumer representative, (the President from CAB), it will be difficult for CAB to effectively represent consumers' interest in bureaucrat heavy Council. At the district level as well, there is a provision of one consumer representative nominated by the government. Consumers representation must be significantly increased in this committee for effective protection of consumers rights to include other sectors of civil society. There is no clear resource support from the government for an independent and dynamic consumer movement consisting of consumer associations and like minded NGOs working on consumer related concerns. It is recommended that the jurisdiction of the Directorate General (DG) of the Directorate of NCRPC be reviewed The Composition of the Council should be reconstituted to include experts from different sectors especially from professional bodies such as the Bar Council, academia with more women representatives to ensure that the Council is gender sensitive. In appointing these three 'eminent persons', as provided in the Act, care also should be taken to ensure fair representation among bureaucracy, civil society and business. Similarly, at the district level, more civil society groups should be appointed to represent consumer's interests. 4
The Government should facilitate the legislative requirements establishing civil society groups and provide for resources in ensuring a vibrant and independent consumer movement. Government should consider funding the consumer movement to some extent at least in the first five years of the CRPA s life as the general public at large will benefit from the work of the consumer movement. It is recommended that a separate consumer fund be constituted under the Commerce Ministry and that the Government should allocate general tax revenue to such a movement similar to other public organisations such as Food and Drug Testing Bureaus and National Defence which are funded by these taxes. 6. CONSUMER EDUCATION The Provisions of CRPA to a major extent is silent in providing a comprehensive and coordinated program among the different government agencies on consumer education among the consumers in Bangladesh, where vast majority of consumers are illiterate. Education can assist consumers in better understanding their rights and responsibilities as consumers, influence their expectations concerning the strengths and weaknesses of market economies and promote greater knowledge of the laws that have been enacted to protect their interests. Education can thereby help ease some of the dissatisfaction that is bound to exist and until the economy is operating more efficiently, knowledge about one's rights and responsibilities will encourage consumers to act in their own interests. It is recommended that a systematic programme should be developed in collaboration with relevant agencies and civil society to implement consumer education programs through both formally in schools and higher learning institutions in the school syllabus and informally through consumer clubs and information campaigns around the country targeting rural, illiterate consumers. Adequate provisions should be made available in the annual budgets of the government agencies to ensure institutional mechanisms are provided to conduct trainings for the consumer movement and government officers in charge of consumer affairs on a regular basis. The Government should encourage the mass media to allocate time for consumer information through the broadcast of television and radio shows. Other tools of consumer education materials such as consumer buying guide magazines, pamphlets, pictorials must be made available to raise awareness of all segments of consumers including the illiterate consumers. These may be sponsored by the National Consumer Rights Protection Council as provided for under section 5 who is responsible for consumer education. The Council should develop milestones for monitoring and assessing the effectiveness of the consumer education programs annually in achieving its target of raising awareness of consumers as well as strengthening the marketplace. 5
7. SUSTAINABLE CONSUMPTION There is currently lack of awareness of consumers on their responsibilities in practising sustainable consumption, an important element that was added in 1999 in the UN Guidelines for Consumer Protection. In CRPA, there is currently no enabling environment for consumers to make informed decisions when purchasing products and services that are sustainable and ecologically sound due to lack of enforcement of laws and standards. The NCRPC under section 8(k) should not only undertake on its own but also commission research on the correlation with consumer behaviour, laws and standards in relation to protection of consumer interests and the achievement of sustainable consumption. CONCLUSION The end goal for any consumer law is to ensure a dynamic marketplace for business and provide the framework for the economic advancement of consumers by increasing fairness and equality and give consumers the information they need to make good choices. CAB is hopeful that if these recommended changes and refinement in the CRPA are done in conjunction with appropriate formulation of the rules to implement and enforce the law, these objectives and the larger interests of the Bangladeshi consumers will be met. Submitted on: 29 June 2010 Place: Dhaka, Bangladesh 6