By Jean Lukaz MIH, MTS
To say that government is not serious about Consumer Protection is tautology. To fathom that Consumer Protection Laws are a palliative for consumer problems is tautology. To state categorically that Consumer Protection Laws are the disease of the cure is tautology. To contemplate that Consumer Protection Laws are a panacea for consumer problems is tantamount to condoning fraud…and standards are not a topical anaesthesia for surgical equity in the marketplace but rather a bitter pill for both unethical businesses and irresponsible consumers to swallow in order to heal them from within.
In the second episode of the first of his four lectures of the 2012 BBC Reith Lectures entitled “The Human Hive: the Rule of Law and its Enemies,” Professor Niall Ferguson, an economic historian, professor of history at Harvard, and a fellow of Jesus College, Oxford, makes a number of observations regarding consumer protection, which the writer shares.
In his discourse, Niall Fergusson identified ‘misconceived regulation’ and the ‘failure to apply regulation and the law’ as one of the troubling aspects of Consumer Protection. All the detailed regulation in the world would not do much to solve consumer problems unless the immediacy of enforcement presents a ‘clear and present danger’ to unscrupulous businessmen and unethical businesses.
Just within the month of June 2012 the confidence of a physically challenged was shaken at the court of law in Ghana when the very presiding judge ruling on his case came in pomp, éclat and plaudit to set him aside up the staircase for His Majesty’s passage to the second floor courtroom. The judge’s cortege of police officers and court clerks bawled at this poor victim, a consumer of the Disability Law, to give way to His Majesty without the exercise of any humility, compassion and mercy on the practically useless Disability Law in this case. If the courtroom, where the law is served to consumers is not disabled-friendly, what is the usefulness of the effect of the Disability Act? This poor consumer wished ‘His Majesty’s pomp was brought down to the grave, and the noise of His viols:…that the worm was spread under Him, and the worms covered Him’[Isa 14:11 KJV].
The much delayed Consumer Protection Bill, however yet to be conceived, has given much utopian expectancy to Ghanaian consumers in spite of the weak institutional regulation of the already existing laws. Given that we are in an ‘Election Year,’ the most unpopular government achievement would be to promulgate a Consumer Protection Law that could tighten up businesses, which in no doubt covertly sponsor politics and political parties. The consequential result will end in these businesses tightening up their political sponsorship and, practically, no government would wish to be the hero in this consumer epic, irrespective of political leaning.
That is not to say that it is inconsistent to suppose that consumers cannot have laws and rights in their favour. If the Hobbesian world dictates that law picks on rights [which are based on personal or civil liberties] and commands them, then where the law does not pick on rights the latter could have a problem with enforcement in law. That is to say that consumer protection laws that are not derived from basic consumer rights render consumer rights as mere consumer liberties, natural or moral as they may appear. Businesses may promote their rights in competition laws but at the same time seek their liberties when it comes to consumer protection laws. To recapitulate Thomas Hobbes, Consumer Rights are not Consumer Protection Laws. Consumer Protection Laws impose duties and responsibilities on businesses and the government while being preventive, whereby, they protect consumers from deception and fraud. If businesses fear the impact of rights-based consumer protection laws they will have the propensity to stall any processes intended to promote consumer protection legislation.
If the rule of law, a state of order in which events conform to the law is paramount to the protection of consumers, perceiving consumer rights as akin to property rights that can be bought and sold is a no brainer. Whether the rule of property (property rights) or the rule of lawyers (rule of law) prevails, consumer rights are irrevocably not negotiable instruments subject to regulated or free market trading. Alluding to the rule of property is to swing between Karl Marx’s ‘Capital’ and Hernando de Soto’s ‘Mystery of Capital’. If rights are considered only within the context of positive rights as recognized within municipal or international legal systems, then they are premised on the rule of law from whence lawyers are premised on rights defence, according to Niall Fergusson. Consumer rights then are premised on rights defence. Thus, if consumer protection laws are not formulated on the basis of consumer rights giving grounds for their defence in a court of law, consumers, consumer rights and consumer protection laws will become an entertaining circus of clowns, tamed animals and fleeting illusionism.
Dinosaur Businesses & Regulatory Expropriation
The most important and cardinal of consumer rights border on basic needs such as water, electricity, public transportation, telecommunications, access to finance and credit, are in majority monopolized by companies with a lion’s share of state ownership that are apt to err with a political veil and a duplicity of unapprehensive state regulation in the financial sector. In the case of water and electricity, at least, without regard to the law of unintended consequences, the Managing Director could publicly boast of consumers’ inability to obtain redress from the courts of law. Consumers, eventually, are the beasts of burden and the victims that bear their leaven of waste and inefficiency on their consumer monthly bills.
In their frustration, consumers and their attempts at accumulating capital as would-be entrepreneurs could be as revolutionary as the trigger of the ‘Arab Spring’ against such injustice and consumer-unfriendly rent-seeking capitalist government-majority companies: “26-year-old Tarek Mohamed Bouazizi, burned himself to death in front of the governor’s offices in the town of Sidi Bouzid last December 2010, precisely an hour after a policewoman, backed by two municipal officers, had confiscated his only capital: two crates of pears, a crate of bananas, three crates of apples and a second-hand electronic weight scale worth around $180. His self-immolation sparked a revolution.”
Consumer Protection in Ghana is, eventually, becoming an enemy of the rule of law.
Consumer Rights under the law of nature may be rather personal liberties. Consumer rights are not naturally endowed as to constitute an inherent enforceability. It is undeniable that consumers in any society are born free and endowed with natural rights. The unscrupulous businessman is also born free just as corrupt enforcement officers of weak regulatory institutions and they all have rights endowed by nature. The right of choice, for example, was given man from creation with a caveat: the right to choose good or evil. Man by nature, endowed with rights but free to choose, broke the law meant to protect him from making the wrong choices. If natural moral laws were enough for the self-preservation of consumers there would be no need for consumer protection laws, a reflection of God’s commandment to the first man “And the LORD God commanded the man, saying, Of every tree of the garden thou mayest freely eat: (17) But of the tree of the knowledge of good and evil, thou shalt not eat of it: for in the day that thou eatest thereof thou shalt surely die [Gen 2:16-17 KJV].” If this should be deemed natural law as deriving from natural rights, then natural laws are meant to institutionalize natural rights. A free-born consumer endowed with natural rights will not live to see the force of these rights under the Rule of Law. This means that enforcement of rights as privileges is only possible when there are rights-based laws to go with them. But laws of nature do find their place in consumer protection but not explicitly reflected in the globally accepted consumer rights.
Consumer Education rather constitutes self-preservation without the influence of government or peer pressure from civil society than ‘objective-social-collectivist’ rights. However, some consumer rights are constitutional in that government has a responsibility to provide, for example, basic needs to her citizens, who are consumers of public goods and services. The Constitution, some believe, does not reinvent the wheel but rather turns it as Sarah Palin – neither philosopher nor theorist — muses: “The Constitution didn’t give us our rights. Our rights came from God, and they’re inalienable. The Constitution created a national government to protect our God-given, unalienable rights.” Nevertheless, consumer rights are unenforceable in law unless backed by consumer protection laws. A worst case is consumer rights in international relations and international law, where industry (businesses) refuse to accept the existence of such rights if they are not explicitly backed by international law, another version of Ayn Rand’s circular theory of ‘objective-social-collectivist’ rights.