Ashurboi IMOMOV

Ashurboi Imomov, Ph.D. (Law), assistant professor, head of the Chair of Constitutional Law, Tajik National University

The disintegration of the Soviet political system and growing awareness of world experience have led to the emergence of a civil society throughout the entire post-Soviet expanse. As we know, all the elements of the former political system were an inseparable part of the overall structure of the totalitarian Soviet Union, outside of which these elements did not have any significant influence on the countrys life. The appearance of elements of a civil society and their gradual evolvement led to rejection of the Soviet political system. A situation developed whereby individual components of the former political structure and new units of the emerging civil society, which were identical in form but different in their essence, goals, and tasks, began functioning simultaneously. For a number of different reasons, this process is still going on in Tajikistan. The realities of our countrys sociopolitical life are such that it is taking rather a long time for the obsolete elements of the old system and the buds of the new civil society to cultivate common ground for their coexistence.

At the end of the 1980s, new political organizations began to take shape in the republic: the Democratic Party of Tajikistan (DPT), the Islamic Revival Party of Tajikistan (IRPT), the Rastokhez sociopolitical movement, the Ru Ba Ru discussion club, and various compatriot societies, such as Lali Badakhshon, Ekhei Khuchand, Nosiri Khisrav, Bokhtar, Dirafshi Kovien, and Kurushi Kabir. Their programs and charters were built on democratic platforms and anti-Communist sentiments, which brought the full fury of the embittered communists and conformists down on them. The state apparatus, of which the latter were members, directed all of its power at discrediting the new manifestations of democracy. A merciless war was unleashed against the democrats, which not all of them were able to withstand. A conflict developed, the tragic consequences of which are still making themselves felt.

The Islamic Revival Party played a significant role in augmenting the urgency and drama of the conflict between the communists and the democrats. As soon as this party appeared on the republics political map, the communist authorities of Tajikistan cast aspersions on its legality. The Law on Freedom of Conscience and Religious Organizations adopted on 8 December, 1990 prohibited the creation of religious political parties and their organizational structures in the republic.1 Art 5 of this document envisaged that religious organizations shall not participate in the activity of political parties and shall not render political parties financial aid.

These measures and the word secular, characterizing the states essential nature, which were introduced into Art 1 of the republics Constitution as an addendum, only served to exacerbate the standoff between the state and religion.2

As a result of this, in 1993, the only legally functioning party was the Communist Party of Tajikistan, all the other parties and sociopolitical movements were either banned or their activity halted.

The question of parties came up again on the eve of the presidential and parliamentary elections in 1994. The thing was that the republics Constitution adopted in 1994 declared that public life in the country was to develop on the basis of political and ideological pluralism. This constitutional foundation served the basis for forming a truly multiparty system. In December 1994, a new party in power formed, the Peoples Party of Tajikistan, which was renamed the Peoples Democratic Party of Tajikistan (PDPT) in June 1997. In 1998, it was headed by the countrys president, Emomali Rakhmonov. In 1995, the Justice Party appeared, and in 1996, the Socialist Party.

The General Agreement on Peace and National Consent entered in 1997 led to the creation and functioning of the National Reconciliation Commission (NRC), and an agreement was reached on introducing amendments and addenda into the countrys Constitution regarding the constitutional status of political parties. For example, in accordance with a referendum held in 1999, addenda were introduced into Art 28 of the Constitution, which envisages the right of citizens to participate in the creation of political parties, including those of a democratic, religious, and atheist nature. This dampened the fervor to a certain extent around the constitutional provision on the states secular nature. Correspondingly, amendments were introduced into the republics legislation, and new laws were adopted on public associations and political parties. The Democratic Party and IRPT were reregistered on the eve of the parliamentary elections (December 1999).

The parliamentary elections of 2000 made a noticeable contribution to forming a multiparty system in the country. Six political parties participated in the elections, and three of them succeeded in gaining seats in the representative power structure. Although the absolute majority of seats went to the party in power, the PDPT, the representation of other political organizations in parliament nevertheless inspires hope.

The constitutional compromise reached, i.e. the possibility of forming a religious political party in a secular state, was further developed by several norms of constitutional laws: on presidential elections and elections to the Majlisi Oli (the parliament), as well as the Law on Freedom of Confession and Religious Organizations (they were all adopted in 1994), which limit the electoral rights of ministers of religion.3 These documents envisage that professional ministers of religious organizations and associations shall not be subject to registration, and while working in these organizations they may not be elected to legislative agencies.

The formation of a multiparty system ran alongside the creation of new types of public associations characteristic of a civil society. Gradually the significance of the old system of public organizations is diminishing (without being entirely destroyed), whereby all attempts to modernize it have proven unsuccessful.

The former public organizations were created on the orders of the upper echelon of the Communist Party and corresponding structures of state power and so were entirely in harmony with and supplemented the existing command and administrative system. In contrast to them, the new public associations are formed on the initiative of the people themselves and without corresponding orders. The state power structures are hostile toward their emergence and view them as an undesirable phenomenon. But the institutions of a civil society are not only taking shape under the scrutiny of society, but also of prestigious international organizations. A system of nongovernmental associations (NGOs) is developing in the country largely thanks to the methodical and financial support of these international organizations. It is no secret that grants from international foundations are still the main source of financing for the NGOs in the republic. Their own funds and government aid, which some NGOs enjoy, are insufficient for maintaining their normal vital activity.

At the first stage of forming NGOs (1990-1992), new organizations were created alongside the old ones. They appeared in various organizational and legal forms, but mainly as sociopolitical movementsRastokhez, Lali Badakhshon, Paivand, associations and national communitiesThe Tajik Association of Koreans, the Tajik Association of Uighurs, the Tajik Russian Community, the Republic of Tajikistan German Society Revival, the Khoverim Jewish Cultural Society, religious compatriot societiesLakai ovozi, Vozrozhdenie Yagnoba, Takhoriston, Orieni buzurg, Mekhri Khatlon, Istaravshon, Samarkand, Khuchandien, and others. The creation and activity of such cultural and educational organizations as the Society for Cultural Relations with Compatriots and Farsi-Speaking People Abroad, the cultural societies Shamsi Tabrezi, Khamdilon, Mardumshinosi, Orien-Foundation, and others played a significant role in stirring up the people and reviving their progressive traditions.

The first stage in forming new public associations in Tajikistan occurred spontaneously. Politicization of their activity was characteristic of the public organizations of this time.4 The intricate process of political fragmentation occurring in society did not bypass the new public structures. They were drawn into the sociopolitical processes, which were acquiring an ever more antagonistic nature. As a result of this, many of them ceased to exist by the end of 1992, and the activity of others was halted or banned. Only those remained which adhered to their charter aims and did not allow themselves to be drawn into sociopolitical confrontation.

The second stage was the civil war of 1993-1997. It was characterized by public associations understanding the place they occupied in the emerging civil society. The fact that NGOs formed in a war-torn country constitutes a special feature of their development at this stage.

The armed conflict did not encompass the entire country, it flared up in the regions bordering on Afghanistan, in the Karategin Valley and in several regions of the Hissar Valley. Therefore, NGOs were primarily created in the capital and in the regional centers of Kurgan-Tiube, Khojent, and Khorog, in the regional center of Kulob, and in the regions contiguous to these large cities. In many of the remote rural regions, conditions for forming NGOs had not matured yet. And in the areas with armed clashes, it was dangerous to conduct any kind of social activity at all.

During this period, the increase in the number of NGOs also promoted their penetration into various spheres of social life. On the initiative of international organizations in the Central Asian countries, including in our republic, conferences, seminars, and training sessions were held to study the experience of these organizations and the work of NGOs, at which debates arose regarding all the areas of activity of these structures. For a long time, a debate unfolded around the extent to which the western name Nongovernmental Organization (NGO) was suitable for post-Soviet states.5 Numerous questions were discussed: Does the name nongovernmental organization not irritate the government structures, does this name not promote a confrontation between the authorities and public organizations? When can public associations begin functioning? Is state registration of NGOs mandatory? How many people are required to found them? Who will carry out state control over the activity of NGOs and how? What state agencies can halt or ban their work? How should NGOs be taxed? What should NGOs financial accounting be like? To what extent is their activity noncommercial? These and many other questions associated with the formation and activity of NGOs were the topic of discussion not only at conferences, seminars, and other forums, but also in the press. The fact that some organizations had their own press agencies played a large role in developing NGOs and stepping up their activity.6

When characterizing the second stage of forming a civil society, some researchers particularly single out the Treaty on Public Consent in Tajikistan (9 March, 1996) signed by the republics president and the representatives of many sociopolitical associations.7 There is no doubt that the signing of this treaty constituted a certain consolidating factor in achieving peace and consent in the republic. The mechanism for implementing the measures set forth in this document was the republics Public Council. But the Treaty and Public Council were aimed from the very beginning at involving sociopolitical organizations in supporting the initiatives of the president and government. Therefore, the Public Council essentially became an appendage of the executive power branch, which does not play a significant role in the countrys public life. This was apparently why not all influential public associations of the republic signed this treaty and joined the Public Council.

The beginning of the third stage in the development of NGOs is associated with the signing of the General Agreement on Peace and National Consent (27 June, 1997) and the creation of the National Reconciliation Commission and its activity set forth in the General Agreement. This document emphasized that its signing created conditions in the country for the democratic development of society. Implementation of the measures set forth in the Agreement was promoted by the law adopted on 23 May, 1998 On Public Associations and the Law on Political Parties (13 November, 1998), as well as amendments and addenda to the Constitution introduced on the basis of a referendum. The above-mentioned addendum to Art 28 of the Constitution was particularly important, which envisaged the right to create political parties including those of a democratic, religious, and atheist nature. This norm was the result of a compromise between the government and the opposition on the most controversial problem about the states secular essence and the right of a religious party to function. In December 1999, on the eve of the parliamentary elections, several political parties and movements banned as early as 1993 were permitted to function again. Due to this, the IRPT and DPT were able to take part in the elections to the Majlisi Oli and local Majlisi of Peoples Deputies. What is more, two candidates from the IRPT became deputies of the Majlisi Oli Assembly of Representatives, and many candidates from this party were elected to the local Majlisi of Peoples Deputies.

The Law on Public Organizations adopted as early as 1990 did not even include the concept of nongovernmental organizations and correspondingly did not regulate their legal status. It was hoped that the new law would clarify the problem. But this did not happen. The law of 1998 mentions noncommercial unions (associations) and noncommercial formations. The term foreign noncommercial nongovernmental organizations was only used with respect to foreign NGOs. Thus, this law not only failed to clarify several problems, but, what is more, complicated the activity of NGOs. In particular, a convoluted system was devised for breaking the organizations down into international, republican, and local, with further subdivision of the latter into regional, city, district, settlement, and village. In so doing, the law envisaged that the activity of each of them should not extend beyond the territory of their own administrative-territorial entities.

Dissatisfied with the content of the law on public associations, the NGO leaders, with the support of the International Center of Noncommercial Law and the World Bank, began preparing a draft law on noncommercial organizations. Over several years, four versions of the draft law were drawn up, but not one of them has yet been submitted to the official power structures. In addition, draft laws have been drawn up for the following laws: On Charity and Charitable Organizations, On Taxation of Noncommercial Organizations, and On State Registration of Legal Entities, and draft laws are being prepared on other aspects of NGO activity. In so doing, the fate of each draft law is evolving in its own way, whereby it is impossible to determine the same future for any of them. Even if all the draft laws being prepared on the noncommercial nongovernmental sector are adopted, it will still be necessary to draw up by-laws, normative documents, and instructions, which also takes a lot of time.

It must be kept in mind that the authors of the draft laws on noncommercial organizations presume that after they are adopted, the current law on public associations will be deemed null and void. But can the document being prepared fully replace the current law and fill in all the gaps in it? Even if we take into account all the multifarious and complicated aspects of the activity of nongovernmental organizations in Tajikistan, it is unlikely that the prepared draft, if it is adopted by parliament and becomes a law, will satisfy all the requests and needs. By way of a solution, there are proposals to approve several laws, which regulate different aspects of the activity of NGOs. But is this expedient? This is still an open question.

There are several alternatives for resolving the problem. First, all the draft laws concerning NGOs can be prepared at the same time and submitted to the parliament for review as a package. This will help to avoid drawn out debates on each law separately and the duplication of norms, and make it possible to establish an internal link between the norms and provisions of the laws and their hierarchy. In this case, the problem is how quickly the authors of the draft laws can prepare them, without drawing out the process over long years, and submit them to the parliament via entities with the right of legislative initiative. We will note that according to the republics Constitution, public associations and their unions do not have this right. What is more, our parliament does not have any experience in discussing draft laws in a package. All of this draws us to conclude that package submission and discussion of these draft laws in parliament will not bring NGOs the desired results.

Second, there is a proposal to prepare the draft of a Code on Nongovernmental Noncommercial Organizations. According to the Law on Normative-Legal Acts (adopted in 1998), a code is a law which contains all or most of the norms which directly and comprehensively regulate a certain sphere of public relations. In other words, a code is a collection of laws in a specific area of public relations which is an extensive, in terms of content, and complex, in terms of structure, legislative act. But it has several advantages. Primarily, a code is a single legislative act which encompasses all the main spheres of the regulated relations. Its adoption means the creation of a solid legislative base in a particular sphere of regulation. Compared with other legislative acts, it is very convenient to use, and relatively simple to adopt and introduce amendments and addenda into. This is carried out with the aid of a relatively easy parliamentary procedure. Taking these facts into account, the preparation and adoption of a Code on Nongovernmental Noncommercial Organizations will make it possible to resolve several controversial problems of NGO activity and render significant help in their formation and development, which is extremely important for strengthening a civil society.

The ambiguous attitude of the state structures toward nongovernmental organizations can be seen in the current laws on NGOs and in the above description of their preparation. On the one hand, the latter do not have the right of legislative initiative. They are deprived of the opportunity to lobby while laws are being passed through parliament. Nevertheless, they participate in drawing up the draft laws on NGOs. The thing is that, taking into account NGO proposals, a working group for preparing two draft laws was created by a presidential order of 1 June, 1999on noncommercial organizations and on charity and charitable organizations. This group also includes representatives of nongovernmental organizations. It is presumed that when work on the drafts is completed they will be submitted to parliament as the presidents legislative initiative.

But this is only a half measure. It cannot replace the actual participation of NGOs in drawing up the laws under which nongovernmental organizations will work. A substantiated proposal will have to be drawn up on introducing addenda into Art 58 of the Constitution for presentation at subsequent referendums on making amendments and addenda to the countrys Basic Law to be voted on by the people. The right of representatives of nongovernmental organizations to lobbying draft law on NGOs in parliament should be envisaged now in the constitutional Law on the Majlisi Oli. In the future, a corresponding addition should be made to the Code (or other law) on NGOs on the right of nongovernmental organizations to legislative initiative in the republics Majlisi Oli.

The formation of a civil society in Tajikistan is typical of countries which have recently begun their democratic development. Nevertheless, in our republic this process has its own specific features and interesting examples of successful practical activity. One such example is the influence of the Inter-Tajik Dialog within the framework of the Dartmouth Conference on developing the institutions of a civil society in the country. The primary goal of the Inter-Tajik Dialog was to give a boost to the inter-Tajik negotiation process, and promote peaceful settlement of the military conflict and the sociopolitical crisis. As these negotiations developed, the dialog began not only to anticipate the problems requiring urgent discussion, but also proposed ways to resolve them. After the General Agreement was entered and the National Reconciliation Commission set to work, the Inter-Tajik Dialog focused on the accelerated implementation of the measures set forth in the General Agreement.

The Inter-Tajik Dialog always saw the broader involvement of various sociopolitical forces as a propitious way to resolve the problems of the Tajik crisis. It also discussed ways to expand the democratization of society, develop NGOs and the activity of political parties and movements, and form a civil society as a whole.8 After the NRC completed its work, the Inter-Tajik Dialog systematically discussed the development prospects for the sociopolitical situation in the republic, focussing on the emerging socioeconomic problems in which NGOs play a very important role. In addition, it concentrated on reintegrating the former armed formations of the United Tajik Opposition, returning refugees and organizing everyday living conditions for them, supervising labor migration and the questions associated with it, supporting small business, and dealing with unemployment, low wages, poverty, the increase in crime and corruption, the drug business, and other urgent topics concerning the countrys society.

For example, the participants in the 31st round of the Inter-Tajik Dialog, held on 20-22 July, 2001 in the Russian town of Pushkin, maintained that restoring peace and national consent in the republic is taking place under sufficiently positive and stable conditions. Nevertheless, after drawing attention to several negative phenomena in the development of a civil society, they considered it expedient to hold a National Dialog on the democratization of the sociopolitical processes in the country. Reviewing several alternatives of possible mechanisms for organizing and holding such a dialog, the negotiation participants agreed that a coordinating agency (center) should be created for this. It should meet the following criteria: be able to constantly interact with the power structures, be capable of representing broad strata of Tajik society and sociopolitical associations; be independent in making decisions, and be able to coordinate the activity of sociopolitical associations.

One such mechanism, the Public Democratic Process Assistance Committee, is a nongovernmental organization which is setting up dialogs in the republics regions. The main purpose of such dialogs is to convince public opinion of the need to convene a National Dialog and attract interested people to participate in it. The members of the Public Committee and people involved in organizing the National Dialog are sure that it will promote consolidation of Tajik society, help to resolve pressing problems, and promote efficient interaction between state structures and the institutions of a civil society.

During the almost nine years of its activity, the Inter-Tajik Dialog has become a center which accumulates independent public opinion regarding the urgent questions in the republics sociopolitical and socioeconomic life. With its assistance, several mini dialogs are underway in the country today which review the most important issues of public life and search for ways to resolve the pressing problems. In the final analysis, the development of a network of mini dialogs throughout the country and their cooperation with the National Dialog functioning on a permanent basis could become an element in fortifying a civil society.

The traditional institutions play a very important role in forming such a society. In our country, quite a few such institutions have evolved during the long history of its development, some of which still function today. They include councils of elders (aksakals), local leaders, avlod (household) heads, khashar, gashtak, and others. Each of them can be beneficial in resolving the microproblems of families, schools, streets, neighborhoods, villages, and settlements. During the years of the sociopolitical crisis and civil war, these institutions and traditional values underwent a certain decline. For example, the role of the local leaders dramatically grew, and many issues of local life were resolved depending on the will and desire of the local commanders, heads of local armed groups, and at times also of mafia groups. Fortunately, this trend gradually waned. Trust is being restored in those traditional leaders who gained their prestige not by instant feats, but earned it by their dignified way of life.

Some traditional institutions are gradually changing and acquiring contemporary forms and content. For example, without rejecting the councils of elders, neighborhood councils, mahallia councils (there are more than a thousand of them), and kishlak committees have currently been created and are functioning successfully. There are more than 95 mahallia councils and 43 neighborhood councils in Dushanbe alone.9 The latter, while implementing functions characteristic of the elders councils, nevertheless have broader possibilities. In terms of organization, they are extremely dynamic, capable of dealing with contemporary tasks, establishing cooperation with the local power structures, and so on.

The achievement of peace and national consent in Tajikistan and improvement of the countrys security have made it possible not only to develop NGOs but also activate traditional institutions. For example, the mahallia councils are very active. They play an effective role in resolving problems relating to poverty, the protection of human rights, employment, raising the standard of living, health protection, providing residents with gas and electricity, water, and telephone communication, promoting the repair of houses, roads, constructing bridges, schools, and hospitals, purging aryks, territorial management, drug control, and much more. With the support of the International Development Association, the Tajik Social Investment Fund (TASIF) is implementing a pilot project for alleviating the problem of poverty in which the mahallia councils play an important role. Many microprojects are being carried out in the regions with their assistance. But the development of this cooperation and raising the role of the mahallia councils as a whole in peoples lives is prevented by the indeterminate nature of their legal status. The thing is that the laws On State Power in the Regions and On Self-Government Structures in Settlements and Villages do not envisage the status of these councils, and the Law on Public Associations does not classify them as NGOs, although it does not envisage any prohibitions on them acquiring this status. Therefore, the mahallia councils can essentially shape themselves as nongovernmental organizations and register themselves with the justice structures. But they encounter a host of obstacles along the way. First, it is difficult to prepare the necessary documents for registration, and there are quite a number of them. Second, registration fees are high. Third, bureaucratic barriers must be overcome. Without the status of legal entity, the mahallia councils are deprived of many of the rights and opportunities due NGOs.

The activity of the mahallia councils shows that they are the main mechanism of democratization of Tajikistan society. Their role in resolving the populations socioeconomic problems and spiritual, moral, enlightenment and educational issues cannot be overestimated. Overcoming the obstacles is a task not only for the mahallia councils themselves, but also for the government structures.

The traditional institutions are efficient mechanisms in themselves, but the effectiveness of their efforts depends on many factors. These factors boil down to the following: creating legislative foundations for the functioning of such institutions, independently defining their legal status; providing independence in defining their own charter tasks and ways to implement them, freeing themselves from the trifles of surveillance and the ruling directives of state structures and political leaders, establishing tax benefits for targeted commercial activity, and providing material-technical and financial support for their projects.

At the initial stage of their activity, many mahallia councils need investment aid from the government and corresponding international investment funds. It should be noted that several international nongovernmental organizations, Mercy Corps International, the International Development Association, the International Red Cross Committee, the Agha Khan Foundation, Medecins Sans Frontières (MSF), and so on, are rendering diverse support in implementing humanitarian and other projects not only to specific NGOs, but also to several mahallia councils. But this support of the mahallia councils is still clearly insufficient for their development.

Summing up, it should be noted that forming a civil society in the contemporary understanding of the word is a relatively new phenomenon for Tajikistan. Nevertheless, despite the sociopolitical crisis and brutal armed opposition, about ten political parties, more than 800 NGOs, more than one thousand mahallia councils, and many other traditional social institutions of Tajikistan society have been created and are functioning in the country within a relatively short time. This is providing immense potential for its further democratization and is an effective mechanism for reducing authoritarianism in the republic.

1 See: Vedomosti Verkhovnogo Soveta Tadzhikskoi SSR (Bulletin of the Tajik S.S.R. Supreme Soviet), No. 23, 1990, p. 392.

2 See: Vedomosti Verkhovnogo Soveta Respubliki Tadzhikistan (Bulletin of the Republic of Tajikistan Supreme Soviet), No. 24, 1990, p. 297.

3 See: Akhbori Majlisi Oli Respubliki Tadzhikistan, No. 23-24, 1994, p. 453.

4 See: A. Imomov, Problemy pravovogo statusa obshchestvennykh obedinenii v Tadzhikistane, Mizon (a scientific information bulletin), No. 10, 1998, pp. 7-9; No. 11, 1998, pp. 2-4; No. 12, 1998, pp. 2-3.

5 See: NPO i zakon v Tsentralnoi Azii (NGOs and the Law in Central Asia). Documents from a conference held in Issyk-Kul, Kyrgyzstan, of 30 October, 1995.

6 In particular, the newspaper Istiklol of the Oli Somon Foundation, the newspaper Junbish of the Tajik National Movement, the newspaper Khukukshinos of the Tajik Association of Young Lawyers, the bulletin of the Shark information analytical center, the bulletin of the Mizon scientific analytical center, the bulletin of the National Association of Political Scientists of Tajikistan Parties and Movements of Tajikistan, and others.

7 See: V.M. Nabiev, Gosudarstvo i NPO, Grazhdanskoe obshchestvo (Bulletin of the National Association of Political Scientists of Tajikistan), No. 2, 2001, pp. 15-18.

8 See: A. Imomov, O roli i znachenii Mezhtadzhikskogo dialoga v tadzhikskom obshchestve, Izvestia Akademii Nauk RT. Philosophy and Law Series, No. 4, 1997, pp. 10-18.

9 See: Information Bulletin Fond podderzhki grazhdanskikh initsiativ (Civilian Initiative Support Foundation), Dushanbe, 2000, p. 14.

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