UPDATE: Law of the Republic of Tajikistan - A Guide to Web Based Resources

 

By Oleg Stalbovskiy & Maria Stalbovskaya

 

Update by Bakhtiyor Abdulhamidov

 

Bakhtiyor Abdulhamidov is a co-founder and partner of a leading commercial law firm in Dushanbe, Tajikistan. Prior to law practice, he spent several years managing a legal reform project in Tajikistan funded by a bilateral donor agency. He studied law at the Tajik National University, and at the Central European University. He is presently enrolled in a LLM program at the Harvard Law School. 

 

Published January/February 2015

(Previously updated by Oleg Stalbovskiy & Maria Stalbovskaya in November 2009)
Read the archive version!

 

 

Table of Contents

1.     Introduction

1.1.       Geography

1.2.       Language and Demographics

1.3.       History

1.4.       Political system

2.     Legal system of Tajikistan

2.1.       The Constitution of the Republic of Tajikistan

2.2.      Constitutional Laws of the Republic of Tajikistan

2.3.      Codes and Laws of the Republic of Tajikistan

2.3.1.    Codes

2.3.2.     Laws

2.4.      Treaties

2.5.      Executive legal acts

2.5.1.         Orders of the President

2.5.2.       Resolutions of the Government

2.5.3.       Directives of Ministries and State Committees

3.     State order in the Republic of Tajikistan

3.1.       Legislative branch – Parliament

3.1.1.      Majlisi milli

3.1.2.    Majlisi namoyandagon

3.2.      Executive branch: President and Government

3.2.1.    President

     3.2.2.    The Government

3.3.      Judicial branch: Courts

3.4.      Prosecution bodies

4.     Further Online Legal Resources

4.1.       Foreign Resources of Tajikistan Legislation

4.2.      International Organization s Legal Resources

    4.3.         Legal web sites in Tajikistan

 

Note: Most of the resources referred to in the present Guide are either in Tajik and/or Russian language. English translations of laws and other legal acts, which are available on select web-sites, in absolute majority of cases are outdated.

 

1.      Introduction

 

1.1.   Geography

The Republic of Tajikistan is the smallest country in Central Asia, with the total territory covering 143,000 square kilometers. Tajikistan borders Kyrgyzstan in the north, Uzbekistan in the north and west, Afghanistan in the south and China in the east. 93% of its territory consists of mountains, with almost half of it located at an elevation above 3,000 meters. The main mountain systems are the Pamir-Alai mountain system and Tien Shan Range. The capital of Tajikistan is the city of Dushanbe.

 

1.2.   Language and Demographics

The official (state) language is Tajik (which belongs to Indo-Iranian group and is considered a dialect of Persian language – Persian spoken in Iran and Dari spoken in Afghanistan). From the year of adoption of Constitution of Tajikistan in 1994, Russian language has an official status of the language of interethnic communication . Despite the fact that it has been undermined by the new Law “On State Language”, adopted in 2009, Russian is still used in business and social media. Other languages informally used in Tajikistan are Uzbek, spoken in some parts of the country, in particular in northern and western districts, bordering Uzbekistan, as well as Shugni, Yazgulyami, Ishkashimi, Wakhi and other Pamiri languages, spoken by indigenous population of Gorno-Badakhshan Autonomous Province of Tajikistan (which constitutes half of the territory of the country).  

 

Tajikistan has a population of 8,161,100, of which 2,170,900 are urban and 5,990,200 are rural residents (26,6% and 74,4%, respectively). 79.9% of the population are of Tajik ethnicity, 16.5% are Uzbeks, 1.1% are Russians, 1.1% Kyrgyz, and 1 ,4% represent other ethnic groups.

 

90% of the population are Muslims, with approximately 85% Sunnis  and 5%  Shias ( Ismailis ). The 2009 Law on Freedom of Conscience and on Religious Organizations has recognized a “special role” of Khanafi school of Sunni Islam in the national culture and religious life of the Tajik people, while preserving Tajikistan’s status of a secular state, by declaring freedom of religion and religious tolerance as basic principles. In the remaining 10%, the biggest fraction is made up by the followers of Russian Orthodox Church, with smaller fractions of followers of various other Christian and other religious minority groups.

 

1.3.   History

The earliest historic records on Tajikistan date back to about 500 BCE, when Tajikistan was part of the Achaemenid Empire. In the subsequent periods, it was part of ancient states of Greco-Bactria and Sogdiana, Kushan Empire, Parthian, Hephthalite and Sasanid Empires, Arab Caliphate (7 th -8 th centuries), Takhirid, Saffarid and Samanid states (8-10 centuries), Karakhanid and Gaznevid Empires (11 th -12 th centuries), Mongol Empire (13 th century), Chagatai Khanate and Timurid dynasty (14 th century).

 

Modern Tajikistan was under the rule of the Khanate of Bukhara during the 16th century, until its collapse in the 18 th century, when it got divided between the Emirate of Bukhara and Khanate of Kokand. The Emirate of Bukhara continued to exist control the southern part of modern Tajikistan until the early 20 th century, while already in the second half of the 19 th century (around the time of the Civil War in the United States), parts of the northern Tajikistan were  conquered by the Russian Empire.

 

The period from 1917 until 1924 can be characterized as a fierce military confrontation between the Bolsheviks , who came to power in Russia, and their local supporters, on the one side, and Basmachi movement,  led by former  local vassals of emirs and khans and representatives of the clergy, on the other side. During this period, part of Tajikistan was under Bukhara People Soviet Republic, and from 1924 to 1929, it was part of the Uzbek Soviet Socialist Republic, under the status of an Autonomous republic. On October 26, 1929 the Tajik Soviet Socialistic Republic was formed as a separate republic of the USSR.

 

Tajikistan gained independence from the Soviet Union in September 1991. First presidential elections were held shortly afterwards, however, the nation could not hold together, and the civil war erupted in the first half of 1992. Officially, it ended on July 27, 1997, when a Peace Accord was signed between the government and the United Tajik Opposition.

                 

1.4.   Political system

According to Article 1 of its 1994 Constitution, Tajikistan is a democratic and secular state. State power is exercised on the basis of its separation (division) into legislative, executive and judicial powers, respectively (Article 9 of the Constitution).

 

General e lections are carried out on the multi-party system, with officially 8 registered political parties.  Party activity is regulated by the Law “On Political Parties” ( excerpts ). Following the latest parliamentary elections in 2010, 5 parties passed the 5 per cent threshold, namely: PDPT – 70.6%, Islamic Revival Party of Tajikistan (IRPT) – 8.2%, Communist Party of Tajikistan (CPT) – 7.0%, Agrarian Party of Tajikistan (APT) - 5.1%, and Party of Economic Reforms of Tajikistan (PERT) - 5.03%. Accordingly, in the 63-member Majlisi namoyandagon Majlisi Oli of the Republic of Tajikistan (lower chamber of the national Parliament), the seats have been distributed as follows: PDPT - 54 seats, APT - 2 seats, CPT - 2 seats, PERT - 2 seats, and IRPT 2 seats (1 seat taken by an independent self-nominee)].

                 

The state is headed by the President, who is elected by a direct universal vote. According to Article 65 of the Constitution, the President, who is also the head of the executive (Government), can be elected for a maximum of 2 terms of seven years.

 

For details on the organisation and competencies of the President, the Government, the Parliament as well as the judiciary, see Section III below.

 

2.      Legal system of Tajikistan

Tajikistan is a civil law country, and the judicial decisions are not sources of law. Since independence of Tajikistan from the Soviet Union in September 1991 (which itself was declared dissolved in December 1991) an effort has been to build its legal system entirely anew, which mostly succeeded. It should be noted that laws and other acts of the USSR were applied until the adoption of the Tajikistan’s own new laws and other acts.

 

Many laws in Tajikistan, especially the ones that are believed to play important role in the legal system and in the economic development, have been developed with the assistance of foreign legal experts. Some of the important laws in the commercial and corporate fields – such as the Law “On Joint Stock Companies”, the Law “On Pledge of Moveable Property”, the Law “On Banking Activity”, - were developed with the assistance and advice of experts from common law countries, under the USAID or the World Bank projects. Procedural laws, on the other hand – such as the Civil Procedure Code and the Economic Procedure Code (which regulates judicial procedure in commercial courts, which resolve disputes among business entities) – were developed with the extensive inputs by lawyers from civil law countries, specifically Germany, under the GIZ-sponsored projects. Islamic legal principles have also found their place in the legal system, although exclusively in the financial sphere, with the adoption of the Law “On Islamic Banking” in 2014.

 

Tajikistan is a state based on the rule of law (Article 1 of the Constitution). The legal system in Tajikistan is based on the hierarchy of legal norms, which are also divided based on the area of regulation. According to Article 7.1 of the Law of the Republic of Tajikistan “On Legal and Normative Acts”, the legal system of Tajikistan includes:

 

·       Constitution of the Republic of Tajikistan;

·       laws of the Republic of Tajikistan, adopted through referenda;

·       international legal acts (treaties), recognised by Tajikistan;

·       constitutional laws;

·       codes, laws;

·       joint resolutions of the Majlisi milli (upper house) and Majlisi namoyandagon (lower house) of Majlisi Oli ( Supreme Council , the Parliament) of the Republic of Tajikistan;

·       ( separate ) resolutions of the Majlisi milli and Majlisi namoyandagon of Majlisi Oli of the Republic of Tajikistan ;

·       orders of the President of the Republic of Tajikistan ;

·       resolutions of the Government of the Republic of Tajikistan;

·       directives of the ministries and state committees ( of the Government) ;

·       resolutions of Majlises ( councils ) of people s deputies of Gorno-Badakhshan Autonomous province, other provinces , as well of the city of Dushanbe (capital 0f Tajikistan) ;

·       resolutions of the chairs ( governors ) of   Gorno-Badakhshan Autonomous province, other provinces, as well as of Dushanbe ;

·       resolutions of Majlises ( councils ) of people s deputies of districts;

·       resolutions of the chairs ( governors ) of   districts ;

·       resolutions of village (settlement) self - governing bodies .

 

According to Article 10 of the Constitution and Article 8 of the Law “On Legal Normative Acts of the Republic of Tajikistan” , international legal treaties recognized by Tajikistan are a constituent part of the legal system. In case of a conflict between the laws and the recognized international legal treaties, the international legal treaties prevail. However, international legal treaties must not contradict the Constitution.

 

According to Article 53.1 of the Law “On Legal Normative Acts of the Republic of Tajikistan”, the sources of official publication of laws, international treaties, other legal acts ( including directives of the ministries and state committees) are official (state-owned) newspapers (gazettes) “ Jumhuriyat ” (official press organ of the President and Government) and “ Sadoi Mardum ” (official press organ of the Parliament). All laws, international treaties and other legal acts must be published in these newspapers to come into legal force in Tajikistan.

 

All legal acts are adopted (promulgated) and published in Tajik language as the state language. At the same time, texts of all legal acts are also prepared and published in Russian language, as the language of interethnic communication. For the purposes of official interpretation, the Tajik text controls. 

 

 

2.1.   The Constitution of the Republic of Tajikistan

The Constitution of Tajikistan was adopted on November 6, 1994, and was changed on September 26, 1999 and June 22, 2003, each time by referenda.

 

The full up-to-date text of the Constitution of the Republic of Tajikistan is available in Tajik , Russian and English .

 

2.2.   Constitutional Laws of the Republic of Tajikistan

 

As of today, there are 15 standing constitutional laws in Tajikistan, including the following:

·        Constitutional Law “On Referendum" (1995, as amended; English)

·        Constitutional Law “On Elections to Majlisi Oli” (1999, as amended, English)

·        Constitutional Law “On Election of the President” (1994, as amended English)

·        Constitutional Law “On Citizenship of the Republic of Tajikistan” (1995, as amended, Russian)

·        Constitutional Law “On the Government of the Republic of Tajikistan” (2001, as amended, Russian)

·        Constitutional Law “On courts of the Republic of Tajikistan” (2014, Russian)

·        Constitutional Law “On Constitutional Court of the Republic of Tajikistan” (2014, Russian)

·       Constitutional Law “On Procedure of Determination of Administrative Territori al System of the Republic of Tajikistan” ( 2013 , Russian)

·        Constitutional Law “On Gorno-Badakhshan Autonomous Province” (2007, Russian)

·        Constitutional Law “On Local State Power Bodies” (2004, Russian)

 

2.3.   Codes and Laws of the Republic of Tajikistan

 

2.3.1.     Codes

The codes are essentially laws, adopted with the intention to exhaustively regulate a specific system of relations (transactions).  As of today, there are 21 standing codes, including:

·         Civil Code, Part I (1999, as amended; Russian); another version (Russian, not updated)

·         Civil Code, Part II (1999, as amended; Russian); another version (Russian, not updated)

·         Civil Code, Part III (2005, as amended; Russian)

·         Land Code   (1996, as amended, Russian)

·         Criminal Code (1998, as amended; Russian), another version (English, not updated )               

·         Criminal Executive Code (2001, as amended; Russian); another version (English, not updated )

·         Labor Code (1997, as amended; Russian); another version (English, not updated)

·         Customs Code (2004, as amended; Russian)

·         Tax Code  (2013, as amended; Russian)

 

2.3.2.     Laws

Although the Law “On Normative Legal Acts of the Republic of Tajikistan” provides for the laws adopted through referendum, there are no such laws so far.

 

Currently, there are over 300 valid laws (excluding amending laws), adopted by the Parliament. A complete list and texts of the laws in chronological order can be found on the official web-page of the Parliament ( Tajik and Russian ) and the official web-page of the National Center for Legislation under the President of the Republic of Tajikistan ( Tajik and Russian ). 

 

It should be noted that the laws in Tajikistan often contemplate regulations that have not been adopted and/or properly promulgated, thereby inhibiting implementation of such laws.

 

2.4.   Treaties

International treaties, to which Tajikistan has become a party, are an integral part of its legal system and pursuant to Article 10 of the Constitution, prevail over national legislation (except for Constitution). Texts of multilateral and bilateral treaties of Tajikistan can be found, in a systemized order, on the web-site of the National Center for Legislation under the President of the Republic of Tajikistan (in Russian and Tajik only).

 

2.5.   Executive legal acts

Executive legal acts include orders of the President of the Republic of Tajikistan , resolutions of the Government of the Republic of Tajikistan and directives of the ministries and state committees ( of the Government).

 

2.5.1.     Orders of the President

The President issues orders on matters, referred to his competence under Article 69 of the Constitution. A complete list of orders with texts can be found on the official web-page of the President ( Tajik and Russian ).

 

2.5.2.     Resolutions of the Government

The Government issues resolutions mainly in cases specifically referred to in specific laws and/or orders of the President, for the purposes of their implementation. Unlike that of the President and/or of the Parliament, the competence of the Government is not specified in the Constitution . A complete list of resolutions with texts can be found on the official web-page of the President ( Tajik and Russian ). 

 

2.5.3.     Directives of Ministries and State Committees

Like resolutions of the Government, directives of the ministries and state committees of the Government are developed and passed to provide for the implementation rules for the laws and/or orders of the President, within the specific area of the competence of the respective ministries and state committees. Texts of the directives can usually be found on the web-pages of ministries and/or state committees that have issued them (see below, under Section III(b)ii).

 

3.      State order in the Republic of Tajikistan

According to Article 1 of the Constitution, the Republic of Tajikistan is a sovereign, democratic, legal, secular and unitary state. The form of government can be characterized as semi-presidential (or super presidential, according to some classifications).

 

The state power is based on the principle of its separation into legislative, executive, and judicial branches.

 

3.1.   Legislative branch Parliament

The supreme highest representative and legislative body of the Republic of Tajikistan is Majlisi Oli (Supreme Assembly) . It consists of two chambers: Majlisi milli (National Assembly) and Majlisi namoyandagon (Assembly of Representatives).  The first two-chamber Parliament was elected in 1999.  A joint session of Majlisi Oli (where both chambers sit together) is convened at least twice a year.

 

3.1.1.     Majlisi milli

Majlisi milli has 33 members, of whom 25 are elected by local legislatures (majlises of provinces, districts and Dushanbe) and 8 appointed by the President. In addition, each former president, if so decides, can take a life sit in Majlisi milli .

 

The powers of Majlisi milli include:

·        adoption of laws;

·        creation, abolition, and change of administrative and territorial units;

·        election of chairs and judges of the Constitutional Court, the Supreme Court and the High Economic Court under the proposal of the President of Tajikistan;

·        approval of stripping of the immunity of chairmen and judges of the Constitutional 

      Court, the Supreme Court and the High Economic Court;

·        approval of appointment and removal of the Prosecutor General and his deputies.

 

3.1.2.     Majlisi namoyandagon

Members of Majlisi namoyadagon are elected for five years on the basis of direct elections. Majlisi namoyandagon operates on permanent and professional basis, with an all-chamber session held at least once a week. Majlisi namoyandagon has 63 members, of whom 22 are elected based on party lists and 41 - in single-seat constituencies.

 

The powers of Majlisi namoyandagon include :

·        adoption of laws;

·        forming of the central commission on elections and carrying out of referenda;

·        proposing for national discussion bills on other important state and public questions;

·        approving social and economic programs;

·        authorizing the giving and receiving of state credit;

·        ratification of the international treaties;

·        instituting courts;

·        deciding on holding of referenda;

·        approval of state symbols and awards.

 

For more information, please refer to the official web-site of the Majlisi namoyandagon (Tajik, Russian, English), and to the reference web-page on Majlisi milli  (Russian, Tajik)

 

3.2.   Executive branch: President and Government

 

3.2.1.     President

The President is the head of state, chairman of the Government, and the Commander-in Chief of the Armed Forces. The President is elected for seven years on the basis of general elections. The same person cannot serve more than two Presidential terms ( counting out the periods begins with 2006, based on constitutional amendments of 2003 ). Emomali Rakhmon (formerly – Emomali Sharipovich Rakhmonov) was re-elected as a President of Tajikistan on 1999, 2006 and 2013. The official website of President of the Republic of Tajikistan contains the Constitution and Presidential orders (Tajik, Russian).

 

3.2.2.     The Government

The Government of Tajikistan is headed by the President as the Chairman of the Government, and consists of the Prime Minister, the First Deputy Prime Minister, Deputy Prime Ministers, as well ministers and chairmen of various state committees and agencies. The Structure of Government can be found on the web site of the President . As of January 2014, the Government consists of 14 ministries, 3 state committees, 13 agencies, and 5 other bodies.

 

The following web sites of ministries, state committees, and agencies of the Republic of Tajikistan have some useful legal documents (in Russian language as a rule, but sometimes in English as well):

·        Ministry of Foreign Affairs (Tajik, Russian and English)

·        State Committee for I nvestments and Management of State Property of the Republic of Tajikistan    

       ( Tajik, Russian, English)

·        Ministry of Justice  (Tajik, Russian and English)

·        Ministry of Finance  (Russian)

·        Ministry of Economic Development and Trade ( Tajik and Russian)

·        Ministry of Health (Tajik and Russian)

·        Ministry of T ransport (Tajik, Russian and English)

·        Ministry of Education of the Republic of Tajikistan (Tajik and Russian)

·       Ministry of Labor, Migration and Population Employment (Tajik and Russian)

·        Statistical Agency under the President (Tajik, Russian and English)

·        Drug Control Agency under the President of the Republic of Tajikistan ( Tajik and Russian)

·       Department for Civil Service Affairs under the President of the Republic of Tajikistan (Tajik, Russian and English)

·        Committee on Emergency Situation and Civil Defense under the Government of the Republic of

       Tajikistan (Russian, Tajik)

·        Agency for State Financial Control and Fight Against Corruption ( Tajik, Russian and English)

·        State Unitary Enterprise “Tajikinvest” (Tajik, Russian, English)

·        National Bank of Tajikistan (Tajik, Russian and English)

·        National Center for Legislation (Russian and Tajik)

 

The local government consists of representative and executive bodies that act within their powers, defined by the Constitutional Law “On Local State Power Bodies” . A local government is represented in provinces, cities and districts by Majlises of people's deputies headed by a chairman, who is simultaneously a head of local executive. Deputies of local majlises are elected for five years. 

 

S elf-government on the community level is carried out on the basis of the Law “On Bodies of Self-government in Villages and Settlements ”.

 

3.3.     Judicial branch : Courts

Courts system is envisaged in Article 84 of the Constitution, and consists of the Constitutional Court, the Supreme Court, the Supreme Economic Court, the Military Courts, the Court of Gorno-Badakhshan Autonomous Province, the Dushanbe city Court, regional, district, town, and city courts, as well as economic courts of provinces, Gorno-Badakhshan Autonomous Province and Dushanbe.

 

All judges in Tajikistan are appointed for the term of 10 years, with no limits on reappointment. The courts system is divided into two parts, based on the subject-matter competence. The so-called courts of general jurisdiction consider criminal cases and administrative cases, as well as resolve civil (including family and labour) disputes. These courts are topped by the Supreme Court of the Republic Tajikistan, which acts as the highest appellate court.  Economic (commercial) courts, which consider disputes arising out of or connected to economic (business) activity between legal entities and/or sole entrepreneurs (proprietors) and /or state institutions (government agencies), are topped by the High Economic Court . The constitutional review, including the review of constitutionality of laws, other legal acts, as well as settlement of disputes over issue of competence of state bodies, is carried out by the Constitutional Court .

 

The administrati ve (logistical) support, as well as the organisation of the functioning of courts, selection and training of candidates for the position of judges (judicial trainees) is carried by a special body, reporting to and organised by the President – the Council of Justice . The competence of the Council of Justice is defined in the Constitutional Law “On Courts”.  

 

3.4.     Prosecution bodies

The bodies of state prosecution carry out supervision of exact and uniform application of laws on the territory of Tajikistan. The system of the prosecution bodies is centralized and headed by the Prosecutor General (General Prosecutor’s Office). The Prosecutor General reports to Majlisi Oli and President of Tajikistan and is appointed for a term of five years. Activities, powers, and the organization of the Office of the Prosecutor are regulated by the Constitutional Law " On [State] Prosecution Bodies of the Republic of Tajikistan " (2005, as amended; Russian)

 

4.      Further Online Legal Resources

 

4.1.   Foreign Resources of Tajikistan Legislation

 

·        Law Library of the U.S. Congress - Guide to legal materials of all types relating to Tajikistan

·        Trade Agreements

·        Oceana Publications

·        LEXADIN

·        LawGuru

·        LawMoose Legal Search Engine - More than 40 links

·        World Legal Information Institute . Free, independent and non-profit access to worldwide law. 

        897 databases from 123 countries.

·        World Law Index : Tajikistan

·        Cornell LII / Legal Information Institute

·        Washburn University Law Library - links to Tajikistan legal resources

·        Justice Initiative Legal Resources Database

·        International Trade Centre

·        CIS-LEGISLATION.com

·        Media Legislation of Central Asia Countries (Russian, Tajik)

 

4.2.     International Organization s Legal Resources

 

·        United Nations Office on Drugs and Crime

·        ECOLEX database of national environmental legislation - Environmental Law Gateway 

       (UNEP/ICUN). More than 130 documents.

·        FAOLEX (United Nations Food and Agriculture Organization) - more than 180 documents

·        OSCE/ODIHR’s LEGISLATIONLINE

·        International Labor Organization’s NATLEX : Tajikistan

·        ICNL - International  Center for Non-for-Profit Law

·        Human Rights Watch

·        UNESCO Database of National Cultural Heritage Laws ( Russian)

·        Doing Business (World Bank/IFC)

                                            

4.3.   Legal web sites in Tajikistan

 

·        Tajikistan Development Gateway - Law database includes more 100 documents in English and 

        Russian

·        NPI Center - National Center for Patents and Information (Russian)

·        Nota Bene Foundation (human rights related information in Russian)

·       ADLIA Legal Database (Electronic online database in collaboration with the Ministry of Justice, Russian and Tajik)

·        Youth Ecology Center Dushanbe – Ecology legislation of Tajikistan (Russian)

·        National Association of Tajikistan Independent Mass Media - NANSMIT