Posted on May 29th, 2017

Sarath Wijesinghe (Solicitor- former Chairman Consumer Affairs Authority and a former Ambassador

Ombudsman – the Concept in practise worldwide

Ombudsman is an office that resolves disputes of the citizen in a cordial and friendly atmosphere, with fewer technicalities by an experienced Personality or a body of persons of repute experienced and knowledgeable in the subject with wide experience. This concept is tested as successful historically and currently prevalent in most parts of the globe in governance, trade, commerce and development as a mode of resolution of disputes in cordial friendly and less complicated atmosphere. Parliamentary Ombudsman in Sri Lanka is a concept inherited from the UK and adopted successfully with the first appointment of Late Mr Sam Wijesinghe – the former Secretary General of the Parliament – a celebrated and reputed government servant by then President H. E. J R Jayawardena based on an act of Parliament. The process was extended to Insurance, Finance and many state and non-state institutions in Sri Lanka following other models as a mode of resolution of disputes with fewer complications. In the United Kingdom Ombudsman exist to deal with complains from ordinary citizens about public and private bodies in Local Government and in many other areas. Legal Aid/assistance and Arbitrations are also other modes of conflict resolutions with consent of all parties concerned with binding effects legally of consent avoiding rigorous complicated and expensive court procedure. In UK, EU and the western concepts of Ombudsman is deep rooted and successfully stalled in the development on trade and governance fast tracking the internal administration and international dispute resolution. In Sri Lanka too Ombudsman procedure is successful in state and private sector with room for expansion with past practice giving space for confidence building. Finance and Insurance are broad and wide areas fast developing in Sri Lanka with developments in trade insurance and finance banking and many other areas. Finance and Insurance Ombudsman in Sri Lanka are non-state offices acting on independent and voluntary basis with minimum expenditure on the basis of mutual consent and agreement/s among parties concerned. Learning from international practice Mega businesses in Sri Lanka are successfully adopting the concept of Ombudsman in their respective organizations in resolution of disputes and satisfying the consumer considered to be powerful and most important. In the UK the scheme covers financial services energy estate agent sector health higher education housing local government police parliament technology water and many sectors. Arbitration and mediation are alternate methods used as a cheap quick and independent systems adopt successfully in other parts of the world and small claim scheme originated from North America which is successful in UK with the legal aid scheme Law Centres, Citizens Advice Centres, Legal Aid Schemes which are successful and effective methods when trans state disputes engage in European dimensions in the complicated process entangled in number of directions from the EU on consumer trade and resolution of disputes connected to trade mong states.

Ombudsman service is prevalent in Asia, and west including United Kingdom in the areas of governance and trade as an intermediate party in the resolution of disputes avoiding costly litigations. Regulators in United Kingdom and in Sri Lanka mostly perform dual purposes in regulation and resolution. Rail Tract in UK, PUCSL, TRC, Financial and Insurance Ombudsman in Sri Lanka are some examples of successful and effective Ombudsmen/mediation /dispute resolution schemes and institutions. In the UK Ombudsman exist to deal with complaints from ordinary citizen complaining about public bodies and services in the private sector. Lord Woolf declares in his report on the subject that the retail sector should be encouraged to develop private Ombudsman Schemes. The origin of the Ombudsman scheme was founded in Nordic countries encouraging genuine independent schemes now prevalent globally which needs to be encouraged in Sri Lanka.

Consumer- Consumerism and rights/duties of the Consumer and Trader

Apart from the legal definition of the term consumer, every citizen is a consumer generally considered to be as powerful as a king as a king maker when properly organized. Which magazine and consumer organizations in United Kingdom indicates the power of the powerful consumer movement with their power and organized skills in pressurizing and making the errant and unjust trader to kneel down on complaints of exploitation. Though the consumer is powerful in the west due to their organisational power and skills with the help of the media and non-governmental organisations, the situation in Sri Lanka is less than unsatisfactory as a group neglected and not considered important segment of the society. Consumerism in the present context is consumer activism though the historical and traditional definition is different based on historic definitions and concepts. Consumer has rights as well as duties attached to them towards the rest of the world. Concept of the alert consumer and just trader” is an innovative theory put forward by CAA during my chairmanship with the consumer pages published which are still in the public domain that consumer, trader, regulator, and the state should work together for a better day for all work with an understanding on the rights duties and priorities towards the rest of the world.

Consumer Affairs Authority came into force to protect consumer, trader, and manufacture by act no 9 of 2003, is the main regulator on consumer issues followed by many other regulators such as PUCSL,TRC, Bureau of Standards State sponsored Ombudsmen schemes and private schemes such as finance and Insurance Ombudsman some of which are set up on trademarks ordnance, poison opium and dangerous drugs ordinance, control of prizes ordinance, weights and measures ordinance, food and drugs act control of prices ordinance, food control act, licencing of trades act, bureaux of Sri Lankan standards act, National price commission law, consumer protection act, code of intellectual property act petroleum products act code food act centimes devices and drugs act Sri Lanka Standards institution act fair trading commission ac ,measurements unit standards and services act, and unfair contract terms act. Consumer depends on the CAA empowered to perform duties to the consumer to enjoy rights and the trader to carry on the just trade with freedom to conduct trade business and industries as guaranteed in article 14 of the constitution and UN guidelines. CAA was set up replacing all previous legislation on the subject for better protection of consumers through regulation, against unfair trade practices other forms of protect[ng traders and manufactures against unfair trade practices, promote competitive pricing, ensure healthy competition, protect consumers against marketing goods and services which are hazardous to the life and property of consumers, protect consumers against unfair trade practices and give consumers interest due consideration, seek redress against unfair trade practices and exploitation of consumers by traders. CAA has enormous powers exercisable by regulation and directions, which are not being enforced due to

inefficiency of the institution/s, leaving the consumer helpless .CAA has become a teeth less failed institution and it is time to adopt the concept of Ombudsman procedure to Sri Lanka with other forms of alternates resolutions until the CAA is reactivated by changing the Act to suit the modern challenges to adopt concrete and meaningful changes for an effective Consumer Authority to meet the needs of the consumer in need of assistance in the current changes in door steps of the digital age.

A Consumer Ombudsman Scheme for Sri Lanka

Despite the main regulator CAA and other regulators, institutions, officials such as Public Health Officers, Local Government Officials, water we drink is contaminated polluted and expensive with wastage of 46% of water produced, food we consume is poisonous adulterated and expensive, prices of consumer items are completely out of control, consumer education is at the lowest ebb, fruits and vegetable are full of pesticides and with strong preservatives, consumer items in food and consumer outlets are not price and quality controlled when CAA is helplessly conduct day to day matters with the restricted and limited capacity. Consumer has no access to the regulator to seek redress. No warring or system of education to citizen on consumer matters/issues and directions. Access to legal procedure is complicated and expensive. There is an urgent need to change the CAA act to meet the current challenges in the approach of a digital era when the OPA has initiated a project to suggest changes to be forwarded to the people and the state which process to take effect will take long years and change of legislature will take a longer time when no changes have taken place for 14 years since the act came into force in 2003. Setting up of the office of Consumer Ombudsman and alternate resolution procedures/methods such as, Arbitrations, Establishment of UK modelled Citizen Advice bureaux , using mediation boards for consumer dispute resolutions, engage Chambers of Commerce and trade and consumer organizations to In resolution of consumer dispute the resolution schemes, setting up and encourage small claim court procedures with the assistance and guidance of the legal aid scheme, setting up of consumer courts, are some measures and methods suggested to be adopted led by the office of Consumer Ombudsman to meet the challenges giving temporary relief to the consumer and trader until permanent changes and solutions are made after the transformation of the current failed system.

The author takes responsibility for the contents and could be contacted on sarath7@hotmail.co.uk)

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