The International Center for Non-for-profit Law (ICNL) is an international organization providing research, education, and technical assistance to develop and improve legislation concerning the non-commercial sector. It has worked in more than 80 countries around the world. This experience underlies the present commentary to the law of the Republic of Turkmenistan “On Public Associations” adopted on October 21, 2003 (hereinafter the “new law”), which has replaced the old Law on Public Associations (hereinafter referred to as “old law”).
This new law represents a step backward in the legal framework for civil society of Turkmenistan. In our comments we summarize the negative provisions in this law and their practical effect on civil society.
Summary of the Main Points
(1) No registration procedure
Under the old law and implementing regulations there was a clear registration procedure, although this procedure was not implemented. Because of this procedure the Ministry of Justice (MoJ) officials had a hard time justifying to the public its non-registration of public associations. The new law regulates some issues of registration, but does not establish a registration procedure. Further, although the new law refers to the Civil Code in Article 17, provisions of the Civil Code in regard to registration apply only to the legal forms of public organization and foundation defined therein. “Public associations” as defined in the new law, do not fall in either of these groups (see section #11 of this commentary for a detailed explanation). Without a clarification of the registration procedure there should be no expectation that the registration process will improve under the new law. The lack of a registration procedure may also provide the MoJ with a “legitimate excuse” to not register public associations.
Note: The MoJ is now officially known as the Ministry of Adalat, meaning ‘fairness and justice.’
(2) Broad reasons for denial of registration
Article 18 provides for a long list of reasons why the registration of a public association can be denied, leaving it to a MoJ official in charge of registration to decide whether to register an association or not. For example, the registration may be denied if “the name of the association offends … the feelings of citizens” or “if one of the founders has been in jail for a serious crime.”
(3) Re-registration in case of changes in by-laws
Article 17 requires organizations to complete the registration procedure each time a fact in the statutory document changes. For a national organization required to have 500 members, this could be a never ending process should any member leave the association. Fees will be assessed for each “registration.”
(4) Obligatory re-registration of all currently existing public associations
According to Article 33 all currently existing associations may have to re-register under the new law, because they should amend their by-laws to bring them into compliance with this law. This puts not only new groups, but established groups in jeopardy of being denied registration.
(5) Non-registered informal associations are now prohibited
Article 17 specifically prohibits activities of non-registered public associations. This is a change from the previous law and prior practice that allowed non-registered organizations to legally operate. In a country where very few public associations have been registered in the last two years, the ability to legally operate was critical for these informal associations. Such a prohibition directly violates the rights of citizens to freely associate, and contradicts international law and practice.
(6) Problems with establishment of associations
The new law maintains the territorial divisions of all associations based on the geographic scope of their activities, as follows: international, national and local. According to Article 13 the territory of activity shall be defined in the by-laws of an association. The complexity of the registration procedure depends on the status, the higher the status, the more complex the procedure:
- Local associations are permitted to engage in activities only within a certain geographic area. This can effectively prevent such associations from participation in events outside the borders of a village, town, or administrative region (oblast).
- The new law directly discriminates against international and national public associations by requiring such associations to have five-hundred (500) and fifty (50) members respectively. In comparison, local public associations can be founded by just five (5) individuals.
- It is impossible to establish an international association under the current law, because in order to establish an international association a group needs to demonstrate that it has an office or an affiliate overseas, which, of course, can not be opened unless the association is registered.
(7) Discrimination against non-citizens
According to Article 5 only citizens of Turkmenistan are permitted to be founders and members of public associations (with the exception of international associations, which will be problematic to register, see sections #6 and #8).
(8) Problems for foreign NGOs operating in Turkmenistan
The new law is the only Turkmen law which addresses activities of foreign NGOs in Turkmenistan. The new law will only increase the previously existing hardships for them. Every foreign NGO, irrelevant of the form of incorporation, will have to prove to the Turkmen authorities that they are a “public association” and eligible to register and operate in Turkmenistan. The law does not establish registration procedure for public associations therefore foreign NGOs will continue to have problems with getting registered (see section #1). If a foreign NGO does manage to get registered it will face more problems as the new law is applicable to foreign NGOs without addressing their specifics. For example, under Article 22, all public associations, including foreign, shall notify in advance the government authorities about all events conducted by an organization and allow for the presence of government officials. As the definition of “an event” is not provided, any gathering of two or more members or officials could be considered events. If an association fails to meet the requirement, it can be liquidated by the decision of the MoJ according to Article 28.
Furthermore, Article 21 allows Turkmenistan organizations to cooperate with international organizations and sign contracts only with the participation of the Ministry of Foreign Affairs (MFA) as a third party. As “cooperation” and “communication” are not defined by the law, any communication without engaging the MFA may result in liquidation of a public association.
(9) Limited rights of public associations
Article 21 of the law provides an explicit list of rights of public associations. Public associations are prohibited in exercising any rights, unless they are stated in this article or other law.
(10) Registration of projects and programs of foreign assistance with the Ministry of Adalat
The law contemplates registration of foreign projects and programs in Article 22. And, on October 22, 2003 the Minister of Adalat (Justice) indicated in an interview on the Altyn Asyr network (state-owned) that the new law would require public associations to register grants and foreign assistance with the State Agency on Foreign Investment, failure to result in confiscation of funds and punishment for the individuals involved. Using Article 22, the state could impose a severely restrictive grants approval system.
Note: A subsequent decree, the text of which is not yet available, purportedly vests a grant registration function within the MoJ.
(11) Contradiction with the civil code
There are two forms of NGOs recognized in the civil code, public organizations and foundations. The new law confuses the issue by ignoring the civil code and continuing to use the outdated term “public association”, which existed in the old Law on Public Associations. The new law further confuses the issue by including the non-associational form of “foundation” as a public association. The creation of a foundation is based on property, not membership. In addition, the new law creates several barely distinguishable forms of membership or ‘participant’ based public associations, assuring confusion among officials and citizens.
The major points discussed above do not include the numerous legal technical points of inconsistency or absence within the new law. For a more thorough explanation of these technical demerits please contact ICNL’s Central Asia Office.