On 30 June 1999 Tajikistan's parliament, the Majlisi Oli, debated and adopted the amendments to the constitution prepared by the CNR and formally proposed by the President. Twenty-eight out of 100 articles of the constitution were substantially revised, twenty-one of them completely. The main structural changes introduced were the creation of an upper house of Parliament representing the regions and the extension of the presidential term from five to seven years, with a one-term limit. Amended Article 28 provided the constitutional framework for parties based on religion for the first time. The logic, essence and contents of the proposed amendments are troubling from the perspective of democratic consolidation.
The creation of an upper house, the Majlisi Melli, was intended to address the perennial problem of regionalism in Tajikistan's politics by ensuring regional representation and reducing inter-regional tensions. Bicameralism – when a country's legislature consists of two 'chambers' – is typically but not exclusively a feature of federal polities, where the upper house affords representation to the federal units, as in the US Senate or the Russian Federal Council. The CNR did not recommend a federal system for Tajikistan. Yet its bicameralism might be seen as a quasi-federal compromise. It provides some mechanisms to give a voice in decision-making at the centre to the regions without granting them formal regional autonomy (except in the special case of Badakhshan, which already had a degree of constitutionally mandated autonomy). Although members of the Majlisi Melli are chosen on the basis of regional representation, the primary powers conferred on the upper house are over the justice system: to elect and recall judges and to approve the appointment and dismissal of leaders of the prosecutor's office. Therefore they lack the legislative powers to respond to concerns raised by their regional constituencies.
In the context of Tajikistan's highly centralised executive branch, which has responsibility for the administrative functions of government, the methods of electing members of the Majlisi Melli arguably strengthen the hand of the executive at the expense of the legislature and the judiciary. The new system may, in fact, diminish the legislature's independence and authority in comparison to those of its unicameral predecessor. Election to the Majlisi Melli is indirect. Three-quarters of the membership are elected by deputies of the aggregate local assemblies of each province, of the capital, Dushanbe, and of the Mountainous Badakhshan Autonomous Province. The system provides equal representation for the five regional administrative units or provinces. The remaining quarter is appointed directly by the President. The parliamentary election law of 1999 permits local executive officials – who are ultimately accountable to the President, as employees of the executive branch of government – to stand for election to the Majlisi Melli. Over 80 per cent of the members elected or appointed in the 2000 elections were such officials. Furthermore, the Majlisi Melli convenes only when called by the President (the lower house, the Majlisi Namoyandagon, convenes regularly).
The extension of the presidential term from five to seven years makes it the longest constitutionally mandated term of office for a chief executive within the former Soviet Union. The restriction to one term in office appears to shorten the term any one individual might serve by three years (from two consecutive five-year terms to one seven-year term). Yet the incumbent President Rakhmonov had already been in office for almost a decade before his election to a newly extended term in November 1999.
Another amendment authorised the formation of political parties 'among others, parties of a democratic, religious, or atheistic character'. This article was drafted primarily to legalise the activity of the Islamic Renaissance Party. Yet the disjunctive legal formula is unfortunate because it suggests that parties can be either democratic or religious, but not both. It further suggests that democratic parties are only part of a much larger universe of parties.
In addition to the substance of the amendments, some people have expressed concerns about the lack of transparency and participation in drafting and adopting the amendments. Owing to the circumstances in which it was created, the CNR was not a democratically representative body. It might have thought to seek legitimacy by a consultative process. Its drafting work was instead conducted in virtual secrecy, without consulting the other political parties, civic organisations, the scholarly community, or the general public. The government enjoyed a virtual monopoly of trained legal drafting skills and therefore had a considerable advantage in the actual drafting of amendments. Moreover, the process of referring amendments to a referendum did not comply with the constitutionally mandated procedures: the draft text was given to parliamentarians two days before the vote and the final text only one hour before it.
Perhaps the most significant aspect of the constitutional amendments is what they failed to do. They did not introduce real structural reform or alter the highly centralised form of government characteristic of all post-Soviet states (with the arguable exception of the Russian Federation). They did not contemplate any substantive regional autonomy or devolution, much less federalism. For example, the President has the power to appoint the heads of regional authorities, although members of local assemblies are elected directly. Nor did the amendments provide safeguards for greater transparency and accountability in the exercise of administrative authority or seek to curb undue administrative discretion. They did not enhance the system for the protection of rights or the freedom from administrative interference of the political process and the activity of political parties.
They also did not seek to redress pervasive gender inequalities in the public and private sectors. Tajik institutions have yet to incorporate a contemporary approach to gender or to introduce norms of non-discrimination and differential treatment, as appropriate or fair in given circumstances. The constitution addresses gender inequality as a separate matter, although only in the context of grounds for equal treatment. Moreover, the language used in the text relies exclusively on the masculine grammatical forms. Separate anti-discrimination or rights-protection legislation on the basis of gender does not exist. Legislation requiring differential treatment on the basis of gender (such as labour legislation) employs the vocabulary of assistance, thus perpetuating an ideology of female passivity.
Significant opposition to the proposed constitutional amendments arose from many quarters, as reflected in the independent press. Twenty-nine per cent of votes cast in the referendum rejected the amendments, a significant number in a region where ruling parties regularly poll 98 per cent or more in national elections. Most Tajikistanis nevertheless accepted the referendum's outcome, as indeed did the UN and the OSCE.