Beefing up consumer protection<\/p>\n
By Stefanus Haryanto<\/p>\n
BATAM, Riau (JP): The bill on consumer protection, which has
\nbeen unanimously approved by the House of Representatives (DPR),
\nwill provide a strong legal basis for consumer organizations to
\nfile lawsuits against manufacturers of certain defective products
\nafter it is enacted by the President.<\/p>\n
Producers, therefore, have to change their practices,
\nparticularly with regard to the quality of their products and
\ntheir marketing strategies.<\/p>\n
It is widely known that in Indonesia, producers often use a
\n\"dirty\" marketing strategy in offering their products to
\nconsumers. Fraudulent misrepresentation can easily be found in
\nthe advertisement of real estate, consumer goods and sex-related
\ncommodities.<\/p>\n
Although consumer organizations like the Indonesian Consumers
\nFoundation (YLKI) have been aware of such fraudulent practices,
\nthey have had difficulty taking legal action because they have no
\nlegal standing (ius standi) to initiate a lawsuit on their own.<\/p>\n
By the enactment of the new consumer law, organizations will
\nbe empowered to assist consumers in filing class-action suits
\nagainst producers whose products and\/or marketing strategies are
\nproven to be detrimental.<\/p>\n
In general, a consumer protection act usually stipulates
\ncertain prohibited conduct and product liability. Under the
\nAustralian Trade Practices Act, for example, conduct is defined
\nas \"doing or refusing to do any act\".<\/p>\n
By this definition, \"conduct\" can include sellers' or
\nproducers' statements of opinion which imply false
\nrepresentation; misleading or deceiving information; promises
\nthat are not kept; statements which are literally true but can
\ncreate a false impression; and precontractual statements which
\nprove to be false after contracts are signed.<\/p>\n
Therefore, a developer which promises that his real estate
\nlocation is flood-free will be held liable to pay for
\ncompensation if it is proven that the location is inundated after
\na heavy downpour. In the past, such an irresponsible developer
\nwould get away easily and people were reluctant to initiate a
\ncostly and lengthy \"legal battle\" with the developer.<\/p>\n
In addition to certain prohibited conduct, a consumer law is
\nvery important in providing legal protection to consumers from
\ndefective products and services. In other jurisdictions, product
\nliability usually deals with the liability of manufacturers and
\nimporters of defective goods. For the protection of the public,
\nproduct liability usually adopts strict liability that does not
\nneed to prove the fault or negligence on the part of the
\nmanufacturers. In Australia, under the Trade Practices Amendment
\nAct 1992, if a product has a defect and an individual or his
\nproperty is injured or damaged because of the defect, its
\nmanufacturer is liable to compensate the person suffering the
\nloss.<\/p>\n
To ensure that consumers are able to enjoy their rights,
\nconsumer laws usually permit a representative or representatives
\nof the affected individuals to file a class-action suit. In the
\nUnited States, for instance, a class-action suit is stipulated in
\nthe Federal Rule of Civil Procedure 23. According to this rule, a
\nclass-action suit may be filed if the issues in the dispute are
\ncommon to all members of the class and the persons affected are
\nso numerous that makes it impracticable to bring them all before
\nthe court.<\/p>\n
In Indonesia, a class-action suit is an exception to the
\ngeneral rule of the civil law, so that lawsuits can only be
\nbrought by, and bind the persons named as parties to the
\nlitigation. Therefore, Indonesian courts have thus far rejected
\nseveral \"class-action suits\" for lack of a legal basis to
\naccommodate such suits. Moreover, the lawsuits cannot be regarded
\nas class action ones because they are not filed by \"members\" of
\nthe class. For example, in a \"class-action\" suit filed by a
\nJakarta lawyer against cigarette manufacturer PT Bentoel, the
\ncourt rejected the suit on the basis of lack of cause of action.
\nThis verdict was right because the lawyer argued that PT
\nBentoel's advertisement was detrimental to the younger
\ngeneration, whereas the lawyer himself was not a member of the
\nclass of \"younger generation\". In other class-action suits, the
\ncourts usually rejected the suits merely on the ground that class
\naction was not recognized in Indonesia law.<\/p>\n
As a matter of practicality, it is unreasonable to refuse the
\nuse of class action in a product liability case because it is
\nbeneficial to both the plaintiffs and defendants. Without class
\naction, the defendants will have to face lawsuits from different
\nplaintiffs and the plaintiffs will also have to file their
\nlawsuits individually in different courts. Regardless of the
\nsubstance of the suit, sensible defendants would rather choose to
\nhave a class-action suit than to have hundreds or thousands of
\nlawsuits at the same time. For the plaintiffs, class action is
\nalso beneficial because, as former U.S. Supreme Court justice
\nWilliam O. Douglas aptly stated, \"class action is one of the few
\nlegal remedies the small claimant has against those who command
\nthe status quo\".<\/p>\n
In conclusion, class action is a very important tool to
\nprotect consumer rights. In the past, Indonesian consumers were
\npowerless in dealing with producers of good and services.
\nHowever, class-action suits will make sure that all errant
\nproducers of goods and services will have to pay dearly for their
\nwrongdoings. To assure this, it is indispensable that Indonesian
\njudges clearly understand the concept of class action. Otherwise,
\nthe new consumer law will only be good on paper but unenforceable
\nin reality.<\/p>\n
The writer is a lawyer at the law firm of Hanafiah & Ponggawa
\nOffice on Batam, Riau. The opinions expressed in this article are
\nhis personal views.<\/p>",
"url": "https:\/\/jawawa.id\/newsitem\/beefing-up-consumer-protection-1447893297",
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"sponsor": "Okusi Associates",
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