Developmental Trajectory of Mahalla Laws in Uzbekistan: From Soft Law to Statutory Law[Article]
Developmental Trajectory of Mahalla Laws in Uzbekistan: From Soft Law to Statutory Law

Ismatov Aziz*_
Alimdjanov Sardor**Table Contents
IntroductionI.

The Structure of Uzbek Law: The Co-existence of Statutory Law and Soft Law

II.

Overview of Existing Laws Regulating Mahalla Activities

2.1 The Mahalla Law (1993, 1999, 2018)
2.2 The 2018 Law on Elections of Chairpersons (Aksakal) of the Citizens’ Assembly
2.3 The 2013 Regulation on Providing Social Welfare to Low-income Families
2.4 The 2018 Regulation on Neighborhood Watch (Mahalla Posboni)III.

Direction of Legal Development

IV.

Certain Legal Contradictions with Regard to the Nature of Mahalla

4.1 Public Non-intervention into the Fair Elections of the Mahalla Chairperson
4.2 The Legal-Terminological Dilemma in Article 16.
4.3 Positioning the Mahalla Chairperson and Other Staff Within the Category of aState-salaried Employee
4.4 Unclear Legal Authority
4.5 The Coordination Council
Conclusion* Corresponding authors; Dr. Ismatov Aziz, Designated Assistant Professor, Graduate School of Law, Nagoya

University/Japan.
**Alimdjanov Sardor, LL.D Candidate, Graduate School of Law, Nagoya University/Japan.

Regional Coordinator of EU Sustainable Development in Rural Areas of Uzbekistan Programme1Nagoya University Asian Law Bulletin Vol.4 (December 2018)

Introduction
In the wake of the post-perestroika period, the national political elite groups in
Uzbekistan viewed the mahalla1 as a unique self-governing platform with a promising
capacity for democratic involvement. In the context of the public administration reforms
in Uzbekistan in the post-Soviet period, the policymakers made a similar assertion thatmahalla manifested a significant potential to successfully perform the role of ademocratic institution, albeit with peculiar national characteristics. Subsequently,
systematic reforms in the form of legal intervention character resulted further in a
republic-wide mahallisation process and transformation of mahalla into a complex
system with both public and non-public administrative functions.
The purpose of this research paper is to examine the laws on mahalla from a
dynamic perspective and demonstrate the legal evolution of this neighborhood
association in the wider context of the sophisticated structure of Uzbek law. The dual
nature of the research objective necessitates splitting this paper into several parts. The
initial section focuses on the structure of contemporary Uzbek law and its distinctive
characteristics. The following section provides an overview of basic laws guiding
contemporary mahalla. This order will enable an unfamiliar reader to understand thespecifics of local legal structure and their influence on the activities of mahalla. The
next section aims to analyze the milestone developments in mahalla laws in the period
between 1992 and the present, and clarify this institution’s legal evolution. In the context
of legal analysis, this research paper argues that certain statutory provisions undermine
the theoretical grounds of the self-governance concept, and eventually result in legal
contradictions. In 2016, Uzbekistan experienced a transition of presidential power.
Within the last two years, the new president has initiated wide-scale reforms, includingin the area of public administration. Hence, a legal analysis of primary laws guiding
mahalla, most of which were amended in 2017 and 2018, may help researchers andpractitioners to conceptualize the character of past, present and future of mahalla and its
functions.

1 Present paper uses the term mahalla in both its singular and plural forms.

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Developmental Trajectory of Mahalla Laws in Uzbekistan: From Soft Law to Statutory Law

I. The Structure of Uzbek law: The Co-existence of Statutory Law and SoftLaw.
A brief look into the general history of Uzbek law demonstrates that within the lastcentury it evolved in a very unstable manner. Before the Russian tsarist invasion, thelegal system in the territory of present-day Uzbekistan was based explicitly on Islamic(Sharia) law. Subsequently, in the next half a century of Russian tsarist administration,
this territory was referred to as Turkestan, and experienced a transformation towards
establishing a non-religious legal system based on civil law tradition. This period is also
known for the co-existence in certain territories of Turkestan of civil law tradition with
Islamic law. From 1920 to 1990, the Uzbek Soviet Socialist Republic composed one of
the 15 union republics of the Soviet Union that had a legal system modeled on socialism.
Notably, it was only under the Soviet socialist system that higher educational institutions
started producing legal professionals en masse. 2 Hence, as a result of sophisticatedhistorical circumstances, Uzbekistan’s statutory law, the judicial system used to manage
this law, and its legal professional consciousness are heavily influenced by Soviet law
and the legal systems of other post-Soviet republics (for example, Russian law).3
On the other hand, associating Uzbek law as a typical creature of the Soviet legal
system does not adequately reveal its true nature. While the 70-year period of Soviet rule
formally dismantled Islamic (Sharia) law, it did not completely erase it. Whereas
massive pre-Soviet and Soviet changes abolished the formal existence and applicationof Islamic laws (such as Shariat, fikh) and dispute-resolution instruments (such as kazi,a judge in an Islamic court), the deep-rooted Islamic practices transformed into theindigenous informal legal system in the form of urf, adat - (custom, or social norm) and2 A. Agzamhodjaev and B. Blinder, Yuridicheskoe Obrazovanie v Uzbekistane (Tashkent: O`zbekistaon, 1990);

A. Agzamhodjaev and B. Blinder, Tashkentskiy Gosudarstvenniy Universitet Imeni V.I. Lenina. Yuridicheskiy
Fakul’tet (Tashkent: O’qituvchi, 1980).
3 William Butler, Uzbekistan Legal Texts: The Foundations of Civic Accord and a Market Economy (Kluwer Law

International B.V., 1999), xii.

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continued to exist in Uzbekistan even in the Soviet and post-Soviet periods. 4 This
indigenous informal legal system was created within domestic settings and is based onsocial norms. Derived from social relationships, this soft law is different from statutory
law because it is not created and enforced by a central authority, and thus has no adequatemeans for legal enforceability. While it is a commonly accepted fact that the central
authority creates, interprets, and enforces statutory law by means of its specificinstitutions, there are no similar elements in soft law. What makes soft law so striking isthat even though there is no central institution(s) to create, interpret, and enforce it, softlaw still occupies a significant role in peoples’ social behavior and relations.5
While various theories dominate the discourse on soft law’s existence in different
societies, the one which seems applicable in case of Uzbekistan is the so-calledinternalization theory. This theory is based on the argument that soft law has strong roots
within societies whose members historically practice regular mutual support andimpartial contributions to own society. In other words, people comply with soft law andinternalize it within their communities because it eventually benefits the society as awhole. 6 Hence, soft law appears to be a set of rules from an obscure and decentralized
origin, based mainly on traditions and customs. Furthermore, there is no court or any
other authoritative public institution to force people to comply with soft law or provide
detailed interpretation. Various societies however, utilize certain traditional forms ofenforcement, such as retaliation, which may include criticism or ostracism for not
following commonly adopted social norms. Therefore, scholars sometimes use
retaliation as a concept which explains soft law’s existence within societies. It is
4 One bright example is marriage and famili law. Refer further to, Marfua Tokhtakhodzhaeva, The Re-

Islamization of Society and the Position of Women in Post-Soviet Uzbekistan (Global Oriental, 2008), 9–10.
5 Refer for detail to, Irmgard Marboe, Soft Law in Outer Space: The Function of Non-Binding Norms inInternational Space Law (Böhlau, 2012).
6 Refer for details to; E. W. Sievers, “Uzbekistan’s Mahalla: From Soviet to Absolutist Residential Community

Associations,” Chicago-Kent | Journal of International and Comparative Law 2 (2002); E. W. Sievers, The PostSoviet Decline of Central Asia: Sustainable Development and Comprehensive Capital (Routledge, 2013). D. M.
Abramson, From Soviet to Mahalla: Community and Transition in Post-Soviet Uzbekistan (Indiana University,1998);

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Developmental Trajectory of Mahalla Laws in Uzbekistan: From Soft Law to Statutory Law

commonly accepted that people residing in a particular society often obey its informal
rules out of anxiety that non-compliance may result in retaliation against them by othermembers of the same society.
The soft law is often a very pragmatic system of rules which in its developmental
trajectory demonstrates viability in the context of various political and legal realities. As
an example, research on the historical evolution of residential units in Uzbekistan
demonstrates how pre-Soviet mahalla, a neighborhood community that was centeredaround the mosque and was eligible to administer local legal disputes, did not vanish in
the Soviet era, but instead demonstrated its firmness and ability to adapt to various
political and legal settings. 7 Although the Soviet government initiated several failed
attempts to eradicate mahalla by abolishing its original structure based on formal Islamic
legal relations, it decided to use these communities for its own interest. Hence, under thesocialist system which oppressed any form of religious-dogmatic units, the mahalla lostits formal Islamic component, but did not alienate its traditional, customary elements urf, adat.8 In other words, under Soviet rule formal Islamic (Sharia) law underwent a
process of secularization and eventually transformed into an informal system based on
non-statutory, traditional, and socially binding norms and customs - adat. In suchconditions, this informal system could adapt to co-exist with a formal Soviet and postSoviet legal systems parallelly.
As secular Socialist law replaced Sharia, certain religious institutions lost theirlegal authority but could still retain or transferred specific functions to other institutions.
For instance, traditionally mosques were centers of the local community and managed anumber of local issues. In the Soviet period, these mosques gradually transferred somefunctions to be performed informally to the so-called Krasnaya chaykhana - tea drinking

7 Aziz Ismatov and Sardor Alimdjanov, “Historical Discourse of Mahalla Functions in Uzbekistan.,” Jahrbuch

Für Ostrecht [Yearbook of East-European Law] 59(1) (2018): 79–80.
8 Z. Kh Arifkhanova, “Rol’ Mahalli v Vozrojdenii Natsional’nykh Traditsiy Uzbekskogo Naroda,” Obshestvennie

Nauki v Uzbekistane 7 (1998): 25.

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clubs. This is one bright example how the soft law which experienced fundamental
challenges in the transition period could survive and exist on an informal basis.9
In the initial years of Uzbek independence, specific actors within the mahalla, suchas the citizens’ general assembly - shod grazhdan, the chairman - aksakal, and the local
committee - kengash, maintained their specific competencies to influence or decide
numerous types of legal, social and administrative affairs occurring in their respective
neighborhood territories. The scope of their intervention still covered various aspects
ranging from social control over implementation of governmental tasks to dispute
resolution in civil and family matters (Refer to Appendix 1). The most peculiar point in
the managerial framework of the mahalla was its decision-making framework, which
had not always been reflected in written statutory law whether codes or statutes, butrelied on adat - a soft law element.10 As long as adat implements only informal methods(for example, guiding parties to a compromise via traditional mediation in various
disputes), its outcomes do not have any legally binding force. Hence, anyone nonsympathetic with such traditional mediation or unwilling to accept the regulationaccording to the soft law is always free to seek justice or regulation according to statutory
law and state courts. The experience in Uzbekistan is that the number of people seeking
a formal legal way to resolve local and specific civil and family disputes through black
letter law is markedly lower compared to those who refer to informal soft law provided
by mahalla.
Thus, the structure of law in Uzbekistan is not an exact copy of Russian law, orthat of any other former Soviet state. The present dualist nature of Uzbek law includes
the formal structure of statutory law originating from the Soviet legal system and still
pertaining many socialist traces, and unwritten soft law based on traditions and customs

9 Paul Georg Geiss, Rechtscultur und Politische Reform in Centralasien, in B. Christian, Recht in Der

Transformation. Rechts- Und Verfassungswandel in Mittel- Und Osteuropa (Berlin: Berliner Debatte
Wissenshaftsverlag, 2002), 153.
10 S. Dzhabbarov, Shariat, Semeynoe i Obychnoe Pravo v Uzbekistane: Istoriya i Sovremennost’. (Tashkents:

Fan, 1996), 49–65.

6Developmental Trajectory of Mahalla Laws in Uzbekistan: From Soft Law to Statutory Law

inherited from the non-radical, secular Islamic culture.11 Notably, both systems, formal
and informal, demonstrate particular positive signs of adaptability to each other and to
co-existence. In fact, after the collapse of the Soviet Union and the ensuing culturalboom, normative-legal tendency even demonstrated clear signs of the stabletransformation of soft law into statutory law. 12 Policymakers asserted that this legal
structure allowed the maintenance of a secular state and social stability in one of themore religious Muslim regions of the former Soviet Union. On the other hand, theevolution of laws in the post-independence period, specifically those guiding mahalla,
demonstrates the gradually changing dynamics of interactions between the state andmahalla.

II. Overview of Existing Laws Regulating Mahalla Activities
2.1 The Mahalla Law
Since 1992, the government was closely involved with mahalla reforms. The
government underwent numerous challenges through legislative codifications whichenabled mahalla to enforce both the statutory and soft law norms. Until the governmentof Uzbekistan launched mahalla law reforms in 1993, the customs and social norms (urf,adat), or in other words, the indigenous informal legal system were the dominant sourceof promoting mahalla with informal authority in various local matters. The 1993 Law on
Local Self-Governing Institutions13 and its subsequent revisions in 199914 and in 2013
(hereinafter, the mahalla law) became the first legislative codification which clarified
the definition and the status of mahalla, as well as influenced its functions explicitly.15
Notably, up until the adoption of this law, the mahalla’s status and the nature of its
11 P.G. Geiss, “Legal Culture and Political Reforms in Central Asia,” Central Asia and Caucasis 6, no. 12 (2001):

114–125.
12 Sievers, “Uzbekistan’s Mahalla,” 103.
13 Law of the Republic of Uzbekistan about Self-Government Institutions of Citizens, 1993. (Outdated)
14 Law of the Republic of Uzbekistan about Self-Government Institutions of Citizens, 1999. (Outdated)
15 Law of the Republic of Uzbekistan about Self-Government Institutions of Citizens, 2013. (With 2018

amendments)

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Nagoya University Asian Law Bulletin Vol.4 (December 2018)activities remained undefined and highly obscure. The mahalla law stipulates veryclearly that:
The mahalla is an independent activity of citizens, guaranteed by theConstitution and the Laws of the Republic of Uzbekistan, for the purpose ofresolving issues of local importance according to their own interests andhistorical peculiarities, as well as to national traditions, spiritual values, andlocal customs.16
Article 105 of the Constitution of Uzbekistan in its new 2018 version briefly statesthat “the citizens’ assembly [hereinafter, assembly] is the mahalla’s supreme organ incharge of self-governance.”17 Further interpretation of this provision is reflected in themahalla law, which specifies the assembly’s composition structure and visibly broad
authority as of 2018. (Please refer to Appendix I which provides an enumeration of themultiple functions of mahalla compiled by the authors.)
The same law positions the assembly at the top of the mahalla framework. The
publicly salaried chairperson (aksakal), and his advisors, consultant, and secretaries leadthe mahalla through the assembly and perform their roles in the council - kengash which
is an executive organ functioning in the period between the assembly’s meetings. The
kengash coordinates the work of the mahalla commissions and ensures the interaction
between the assembly and local state authorities in the implementation of the mahalla’s
activities.18 The assembly also includes the audit commission, which verifies financial
and economic activities of the mahalla.19 (Refer to the figure 1.1)
The law enables residents over the age of 18 to participate in the activities of theassembly and thus, exercise their right for self-governance.20 In practice, only a selected
number of respected residents factually participate in the assembly’s activities and
16 Art 3 ibid.
17 Art 105, The 1992 Constitution of the Republic of Uzbekistan (Sobranie Zakonodatel’stva Respubliki

Uzbekistan). (With 2018 amendments)
18 Art 13, Law of the Republic of Uzbekistan about Self-Government Institutions of Citizens.
19 Art 18 ibid.
20 Ibid., Art 9; 11.

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Developmental Trajectory of Mahalla Laws in Uzbekistan: From Soft Law to Statutory Law

perform their duties. This provision confers upon the mahalla an official mandate torepresent their residents’ interests and in some cases, make legally binding decisions.
Audit
Commission

Mahalla Citizens'
Assembly
Council of Citizens'
Assembly (Kengash)
Advisors

Chairperson(Aksakal)Commisions oncore activities

Consultants
Youth

Elderly/Veterans
Neighborhood
watch (Posbon)

Executive
Secretary

Dispute‐resolution

Enlightment/
Spirituality

Social Welfare

Women

Figure 1.1: A typical structure of a self-governing (Mahalla) system in
Uzbekistan.(Items in light brown show state-salaried mahalla staff). Source:
The Law of the Republic of Uzbekistan on Self-Government Institutions of
Citizens (The Mahalla Law). (with 2018 amendments)

2.2 The 2018 Law on Elections of Chairpersons (Aksakal) of the Citizens’
Assembly
Before its amendment in October 2018, Article 105 of the Constitution stipulated
a term of two and a half years for the elected chairperson of a mahalla. When the 2018
Law on Elections of Chairpersons (aksakal) of the Citizens Assembly (hereinafter, theMahalla Elections law) was adopted, the term was extended to three years. The samelaw stipulates that it is the assembly which elects (votes for) the chairperson.21 This newlaw regulates in detail the framework of elections including the creation of specificassisting commissions, critical deadlines, requirements for candidates, and also
highlights a supportive role of the public institutions in organizational matters. 22
21 Art 3, Zakon Respubliki Uzbekistan O Vyborah Predsedatelya (Aksakala) Skhoda Grrazhdan, 2018. [The 2018

Law on Elections of Chairperson (Aksakal) of Citizens’ Assembly]
22 Ibid., Art 9.

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Simultaneously, the law prohibits any direct or indirect interference into the process ofelections.

Figure 1.2: The stages of electing the mahalla chairperson. Source: The 2018
Law on Elections of Chairperson (Aksakal) of Citizens’ Assembly. The blueboxes include preparatory process on the republican level, whereas green on thelocal level

2.3 The 2013 Regulation on Providing the Social Welfare to the Low-Income
Families
The mahalla law, starting from its initial 1993 version, transformed mahalla into a
focal point to disseminate social welfare for low-income and vulnerable local residents,
a function which in the pre-independence period fell exclusively within the scope of
public institutions.23 While the mahalla law confers upon this institution a legal mandate
to operate on behalf of the state in the distribution of social welfare, the mechanism ofsuch a mandate is legally enforced in the 2013 Regulation on Providing Social Welfare
and to the Families with Low Income.24

23 Art 6 Law of the Republic of Uzbekistan about Self-Government Institutions of Citizens; (Outdated) “Thepresidential decree N 983 (Outdated),” 1993.
24 “O Poryadke Naznacheniya i Vyplaty Sotsial’nykh Posobiy i Materinskoy Pomoshy Maloobespechennym

Sem’yam,” 2013.

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Developmental Trajectory of Mahalla Laws in Uzbekistan: From Soft Law to Statutory Law

The present 2013 regulation provides a categorization of eligibility for obtaining
social welfare, procedural matters regarding the social welfare application, and thedominant role of mahalla. In particular, mahalla incorporates a special commission local-level provider of social aid mandated to examine social welfare applications. A
closer look at this regulation reveals that a special commission is authorized to nominate
eligible individuals for social benefits according to an investigation of the applicants’living standards. 25 According to statutory regulation, such investigations target thepersonal situation and financial condition of each applicant’s family, and their available
property. According to the available research, the practical examination may go far
beyond these criteria. Eventually, under the provision of the regulation, the assembly or
its separate commission has the decision-making power in granting social benefits to aparticular applicant. Notably, this norm raises concerns regarding the limits of theauthority because it does not clarify further in written statutory form about the proceduralside of evaluation circumstances and decision-making prerogatives. In other words, thisregulation does not stipulate any concrete and substantial grounds which would legally
guide the mahalla to unconditionally award available social welfare to people in need.
Perhaps this situation is an example where the mahalla fills in the statutory gap by
relying on informal, traditional settings, or soft law, based on collective decisions rather
than written statutory guidelines. The final decision of the mahalla regarding the
granting of social benefits is discretionary, and there is no adequate appeal mechanism
available.26

25 VI, 27-29, Addendum 5 ibid.
26 Refer further to, John Micklewright and Sheila Marnie, “Targeting Social Assistance in a Transition Economy:

The Mahallas in Uzbekistan,” Social Policy & Administration 39, no. 4 (August 1, 2005): 431–447.

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2.4 The 2018 Regulation on Neighborhood Watch (Mahalla Posboni)
The mahalla posbon - a neighborhood watch, guards, or local patrol, as introducedin the most recent 2018 Regulation on Neighborhood Watch is a social formation within
the mahalla structure endowed with the mandate to assist the mahalla and the Internal
Affairs Organs (police) in ensuring public order, safety and prevention of crime within
the territory of the mahalla.27 This regulation lists the eligibility requirements for posbon
and assigns them to comprehensively collaborate with local internal affairs units, which
are usually based in the same building with the respective mahalla. Furthermore, thissocial formation is expected not only to maintain public order as prescribed by theadministrative and criminal justice systems, but also to protect society’s morals andspirituality. As long as the terms moral and spirituality are very general and vague
concepts which, additionally, has no adequate statutory interpretation in the present-day
Uzbekistan, it apparently presupposes the general values represented in urf/adat. Posbon
is a public budget salaried staff of mahalla recommended by the citizen’s assembly.
Their number in each mahalla depends on the number of residents and the size of themahalla.

III.

Direction of legal development

The statistical data demonstrates that in the period between 1993 to the present
time, the parliament, the cabinet, and the president of Uzbekistan adopted more than 200
statutory regulations, each to a certain extent assigning new functions to the mahalla or
making reference to them. Compared to the Soviet era administrative-legal reforms on
mahalla, the post-independence public administration reforms are more concrete interms of the contextual legal definition of mahalla, its status, and its functions. Notably,
the architects of the mahalla reforms address such a wide-scale attempt to legitimize this27 “Fuqarolar Yigining ‘Mahalla Posboni’ Jamoatchilik Tuzilmasi Faoliyatini Tubdan Takomillashtirish Haqida,”

2018.

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Developmental Trajectory of Mahalla Laws in Uzbekistan: From Soft Law to Statutory Law

institution as a legal intervention in order to promot social order and provide public
goods under the discourse of democracy and decentralization.28
Since adoption of the initial 1993 Mahalla law which defined this institution as aself-governing body and legitimized its managing structure, it paved the way for far
more ambitious laws and regulations. Subsequently, as they delegated various rights andresponsibilities to mahalla, the evolution of laws and regulations in this area followed
in somewhat predictable way of transforming mahalla from social into theadministrative formation.29 In the past, the original managerial structure of the mahalla
centered around the informal leader (aksakal) and a number of similar informal advisors
who were local residents that could assist the mahalla aksakal in terms of their wisdomor specific knowledge. In the post-independence period, the laws and statutory
regulations guiding the mahalla have gradually transformed such informal leadershiptowards a more formalized structure. Present mahalla leadership consists of achairperson who leads and relies on support of formal advisors, secretaries, andconsultants. The law concretely stipulates the number of mahalla staff, their specificpillars of activities, and related responsibilities within those pillars. Simultaneously, theMahalla law positions a chairperson and his advisors under the category of state-salaried
employees and stipulates their fixed terms in office. The legal reforms have also
drastically increased the authority and mandates of the mahalla leadership by placing aprovision that ignoring the decisions of the mahalla might be punished by law. This

28 Rustamjon Urinboyev, “Law, Social Norms and Welfare as Means of Public Administration: Case Study ofMahalla Institutions in Uzbekistan,” NISPAcee Journal of Public Administration and Policy 4, no. 1 (July 1,2011): 38–42.
29 See, Sievers, The Post-Soviet Decline of Central Asia; David M. Abramson, From Soviet to Mahalla:

Community and Transition in Post-Soviet Uzbekistan (Indiana University, 1998); Timur Dadabaev, 記憶の中のソ
連: 中央アジアの人々の生きた社会主義時代 [Kioku no Naka no Soren, Chuuouajia no Hitobito no Ikikata

Shakaishugi Jidai](つくば; 東京: 筑波大学出版会 ; 丸善 (発売), 2010); Urinboyev, “Law, Social Norms and Welfare
as Means of Public Administration”; Tom Everett-Heath, Central Asia: Aspects of Transition (Psychology Press,
2003).

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Nagoya University Asian Law Bulletin Vol.4 (December 2018)provision is in principle an apparent component of the public power. According to law,
only the mahalla itself or a court can annul the decisions of mahalla.30
The mahalla reforms have also formalized the elections of the chairperson. In
particular, the law on chairman’s elections enumerates detailed requirements and asophisticated process of elections. The law also stipulates the responsibility of publicagencies to assist in organizational matters related to such elections. A closer look into
this law also reveals the a contradictory provision regarding the elections of achairperson, particularly the local government’s control over the whole process of suchelections.31
A comparatively recent novelty in terms of the managerial structure of mahalla isan introduction in 1999 and an amendment in 2018 of a regulation introducing theposition of posbon, a formal neighborhood watch composed of one or several residents
of a mahalla, depending on the size and number of residents. This mahalla staff is paid
from the public budget and expected to cooperate with the internal affairs organs. Whilethe law states that posbon is comprised of staff recommended by the citizen’s assembly,
it confers upon posbon the authority to make arrests, which is another clear example ofpublic authority component within the mahalla. The reason for promoting this statutory
regulation apparently includes a willingness of the state to address local security
concerns, such as early prevention of crime, and controlling certain unreliable residents,for example those who are allegedly might be involved into illegal conduct, such as
prostitution or terrorism.32
In the Soviet period, basic schooling, adequate medical service, good social welfare,issues related to territorial construction, water, and crime prevention fell exclusively
within the scope of the state and its relevant agencies. A more detailed look into most of
the post-independence mahalla reforms reveals that many of these issues fell entirely or
partly within the scope of mahalla functions. Primarily, the Mahalla law has legallyenabled this institution to implement social-welfare functions to the local residents.

30 Art 24; 25 Law of the Republic of Uzbekistan about Self-Government Institutions of Citizens, 2013.
31 Refer to a more detailed discussion in the next sections.
32 Human Rights Watch, From House to House: Abuses by Mahalla Committees, Vol 15 (New York, 2003).

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Developmental Trajectory of Mahalla Laws in Uzbekistan: From Soft Law to Statutory Law

Furthermore, the presidential decree on increasing the role of local self-governanceregarding the targeted social-welfare support of the population adopted in 1999, and the2002 cabinet regulation on targeted social-welfare support for the 2002 and 2003 fiscal
years have reconfirmed the mahalla’s solid mandate to manage state-sponsored social
assistance. Hence, this traditionally state-dominated function was transferred to the local
level in the independence period, however, with an obvious component which is basedon a soft law. As a result of such legal reform, the mahalla obtained a typical public
function and gravitated towards being a focal point to make decisions on disseminating
the social-welfare.33
Through a set of subsequent regulations adopted between 1993 and 2017, themahalla has also been formally tasked with assisting governmental agencies incollecting taxes, supervising local commerce, initiating construction, as well as
notarization functions. Simultaneously, a compulsory registration in the mahalla byvirtue of legal residence became a precondition to obtain the mahalla’s formal consent
on various matters, starting from applying for public certificates (passports, marriage,
birth or death certificates) up to initiating a local business plan.34 In addition, mahallapresently has an authority to control the family life, youth politics, the elderly,
employment, religion, crime prevention, environment, weddings, disciplinary disputes
in local schools and even the local sale of alcohol. In the years following independence,
the government, by means of its statutory regulations, formally allocated within mahalla
the committees for women and girls, veterans, weddings and celebrations, justice, androad maintenance, amongst a host of others.35
The general direction of mahalla laws, starting from 1993 and continuing up to thepresent time, clearly demonstrates a drastic increase of this institution’s formal functions
and responsibilities which go far beyond the social, economic, and security aspects of

33 Sievers, “Uzbekistan’s Mahalla,” 119; Human Rights Watch, From House to House: Abuses by Mahalla

Committees, 7; Urinboyev, “Law, Social Norms and Welfare as Means of Public Administration,” 43.
34 Every person who resides in mahalla automatically joins its membership.
35 Elise Massicard, Tomasso Trevisani, “The Uzbek Mahalla” in Tom Everett-Heath, Central Asia: Aspects ofTransition (Psychology Press, 2003), 207.

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Nagoya University Asian Law Bulletin Vol.4 (December 2018)residential life. By passing and amending the mahalla law, the government claimed thelegitimacy of this institution and considerably increased its authority in multiple matters.
In the context of the legal evolution of mahalla laws, one interesting aspect for legal
scholarship is a clear tendency of formalizing the legality of the mahalla’s many
previously informal functions based on adat. Thus, in the period between 1993 and up
to now, mahalla has demonstrated the new phenomenon of increasingly formalizing theadat’s parallel co-existence with the statutory, typically public functions. In fact, thedevelopment trajectory of mahalla laws gradually led to the situation when classifying
or separating its fundamental social norms from statutory responsibilities became
increasingly difficult. In such circumstance traditional functions of mahalla graduallyeroded or transformed into the category of statutory functions. In other words, a
traditional, social mahalla gained more clear signs of administrative mahalla. Suchgravitation towards administrative institution also demonstrates a gradual transformationof mahalla into a controversial body lacking transparency when it comes to interactions
with public institutions and agencies.

IV.

Certain Legal Contradictions with Regard to the Nature of Mahalla

The development nature of laws has created several questions regarding
contradictions in the existing legal framework which affect the theoretical grounds andtraditional nature of the mahalla, its features of self-autonomy, and its independent
decision-making power. For example, the contradictions are more apparent whenlooking at the language in Article 16 of the Mahalla Elections Law where the law’swording results in two questions worth analyzing. The first question centers on the roleof the mayor in the election process of the chairperson, whereas a legal-terminologicalaxiom in the second question results in a vague interpretation of the provision.

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Developmental Trajectory of Mahalla Laws in Uzbekistan: From Soft Law to Statutory Law

4.1 Public non-intervention into the fair elections of the chairperson
Some English language-based literature asserts that the mahalla chairperson is astate-appointed public official.36 As their main argument, most of these studies point to
the exceptional role of the mayor (khokim) in facilitating an orchestrated election process
in which the future chairperson’s candidacy is agreed upon by the government far before
the actual elections results. On the other hand, policymakers assert that they choose achairperson based on the principles of fair elections and non-intervention from publicauthorities. What is missing in these declarations is a substantial examination of the legal
provisions dealing directly with chairpersons’ elections.
Article 16 of the Mahalla Elections law states:
Nominating candidates for the position of chairperson (Aksakal) of the
Citizens Assembly is conducted by the working group by considering theopinion of citizens permanently residing in relevant territory.
The working group prepares the documents of candidates for the positionof chairperson (Aksakal) of the Citizens Assembly and submits it to therelevant commission for agreement with the mayor of the district or city
(Khokim) not later than ten days before the elections. Written consent
from the candidates for the position of chairman on nominating own
candidacies are attached to the documents.
The Khokim (mayor) of the city or district examines the documents ofproposed candidates for the position of chairman (Aksakal) of the Citizens’
Assembly and forwards it to the appropriate commissions. Khokim also
must attach own reasonable conclusions on these candidates and forwardfurther to working groups.
After obtaining the conclusions of the Khokims of the district or city notlater than five days before the elections, the working groups post
information on the agreed candidates for the position of chairman

36 Sievers, The Post-Soviet Decline of Central Asia; Abramson, From Soviet to Mahalla; Everett-Heath, Central

Asia, 2003.

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Nagoya University Asian Law Bulletin Vol.4 (December 2018)(Aksakal) of the Citizens Assembly on the building of the citizens
assembly and Guzar [central neighborhood area].37(usually there is anote “emphasis added by authors” here)
A working group, a non-permanent organ to facilitate the elections process, isusually composed of locally based residents and not-for-profit representatives. The law
enumerates some technical functions of this body but does not grant it any concretedecision-making power. A working group, by relying on the opinions of local residents,
nominates the potential candidates for the position of mahalla chairperson, and upon
obtaining these candidates’ written consent, prepares and forwards the respective
applications and documents to the specially composed local government commission
which includes both private and public parties. Similarly to the working group, thiscommission does not enjoy any degree of decision-making power, but performs
technical coordination between the numerous election working groups existing in thecity or district, and the mayor. Subsequently, upon obtaining relevant applications anddocuments from the working groups, the commission forwards all of it to a mayor whobears an exceptional authority in agreeing or disagreeing on the candidates’ final
nomination for their participation in elections. Hence, one may quickly notice that within
the three multi-type bodies involved into the elections process, namely, a working groupwhich is a private body, a local government level commission which is a mixture ofprivate-public formation, and a mayor, who is the representative of public power, only
the mayor possesses extraordinary decision-making authority.
Such a framework subsequently raises justified legal contradictions regarding amayor’s intervention into the process of elections of a self-governing body’s (mahalla)
chairperson which, according to law, is supposed to be openly chosen by the eligible
residents.38 In particular, it is unclear how to conceptualize such an electoral frameworkin which the government enjoys the discretion to intervene in the local self-governing
body’s activities, for example, mahalla elections, in light of the fact that anotherfundamental law on Citizens Self-Governing Institutions’ (the Mahalla law) asserts that37 Art 16 Zakon Respubliki Uzbekistan O Vyborah Predsedatelya (Aksakala) Skhoda Grrazhdan.
38 Art 3 ibid.

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Developmental Trajectory of Mahalla Laws in Uzbekistan: From Soft Law to Statutory Law“intervention of the state (public) organs and their officials into the citizens selfgoverning organs’ activities is not allowed.” 39 Furthermore, another contradiction
appears with regard to the principle of fair elections of the chairman, which stresses that“any direct or indirect limitations on the rights of citizens to participate in mahalla
chairman and his advisors’ elections process are prohibited.40

4.2 The Legal-Terminological Dilemma in the Article 16 (wording)
The real problem within the article has to do with legal language.41 The article uses
both the Uzbek and Russian languages and there is some confusion when it comes to theterm agreement, which is kelishish in Uzbek and soglasovat in Russian. In bothlanguages, depending on the context, these words can suggest either agreement or
negotiation. Therefore, one’s interpretation could change the actual meaning of Article
16. A careful look into the provision on the mayor’s authority regarding decision-making
power in the elections process demonstrates a clear example of legal-terminologicalambiguity and paves the way for debates on a possible interpretative dichotomy. As an
official translation in English does not exist. The Uzbek and Russian versions, whiletranslated into English, may simultaneously reflect the meanings to agree, in this casean unconditional top-down decision by the mayor, or to negotiate, which presupposes acertain level of mutual conditionality between the parties.42 The reason why the present
section uses the word agree but not negotiate, is because in the process of election, amayor does not interact with any interest group(s) and, thus, is not involved into theprocess of reaching a common agreement on a perspective candidacy. The mayor takes
rather an independent, top-down decision to agree or disagree on a specific candidate.
While this hypothetically grounded interpretation may be challenged by an alternative
one(s), the official interpretation from the Constitutional Court of Uzbekistan on Article

39 Art 4 Law of the Republic of Uzbekistan about Self-Government Institutions of Citizens.
40 Art 3 Zakon Respubliki Uzbekistan O Vyborah Predsedatelya (Aksakala) Skhoda Grrazhdan.
41 Art 16 ibid.
42 Bryan A. Garner, Black’s Law Dictionary, 10th Edition, 10th edition. (St. Paul, Minn: Thomson West, 2014)

1199-1200.

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Nagoya University Asian Law Bulletin Vol.4 (December 2018)16 of the Mahalla Elections law would contribute meaningfully to the further
clarification of this seemingly controversial terminological dilemma.

4.3 Positioning the Mahalla Chairperson and other Staff within the Categoryof a State-salaried Employee
Financial relations between the government and mahalla, particularly regarding thedelegation of full control over the social allowances for vulnerable people is anotherdilemma that raises particular concerns among scholars and practitioners. As mentioned
above, some scholars fairly address the mahalla chairperson as a state-salaried employee
given the fact that a chairperson and other staff receive their remuneration from the local
public budget.43 The present research attempts to address this aspect from the viewpointof law, by focusing specifically on the provisional collisions between the statutory
regulations which result in the controversial positioning of mahalla staff within a greyzone between public and private sectors.
Article 8 of the Mahalla law states that self-governing bodies (mahalla) do notform a part of the state (public) organs.44 Ideally, such a relationship presupposes equal
and independent status for both parties. A closer look at the statutory regulations which
guide financial matters, especially the public budget-based remuneration of the coremahalla staff usually, around four-six people, including a chairperson, secretary,advisors, posbon, raises concerns regarding the financial independence of the mahalla
from the government and its separation from the state organs. While the law defines
mahalla as a non-state institution, its staff ideally should not be regarded as public
officials. However, such theoretical settings are challenged by the specific statutory
regulations which formally place the core mahalla staff within the scope of civil servants.
Notably, the decree ‘On Stimulating the Employment of Civil Servants adopted by the
Cabinet of Ministers of the Republic of Uzbekistan in 1997 (with 2018 amendments)
while dealing with the remunerations issues, de jure positions mahalla staff (chairman,
43 Urinboyev, “Law, Social Norms and Welfare as Means of Public Administration,” 41; Abramson, From Soviet

to Mahalla, 189.
44 Art 8 Law of the Republic of Uzbekistan about Self-Government Institutions of Citizens.

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Developmental Trajectory of Mahalla Laws in Uzbekistan: From Soft Law to Statutory Law

his secretary, and posbon) within the category of public servants.45 Such a framework
theoretically, although with a certain level of vagueness, places the mahalla staff on thesame line with public officials who obtain their remuneration from the same publicbudget. Notably, while the mahalla law separates mahalla from the public sector, andsimultaneously, existing statutory regulations categorize its staff as civil servants,
absence of relevant labor agreements prevents examining further about the character ofsuch employment. This legal anomaly raises justified contradictions regarding theambiguity of the simultaneous public and private nature of the mahalla.

4.4 Unclear Legal Authority
The Mahalla law unequivocally states that the mahalla is a self-governing body,and the intervention of public organs and agencies into its activities is not allowed. In
common legal interpretations, the law entrusts the mahalla to address numerous local
issues as reflected in its functions. Article 19 of the Mahalla law states that “…decisionsof self-governing bodies (mahalla) and their respective officials, taken within the scopeof their competency, are obligatory for execution by local residents, legal entities based
locally and their officials.” Simply speaking, everybody within neighborhood has tofollow what the mahalla decides. The same article asserts that non-compliance with(mahalla) decisions entails a responsibility in accordance with law.46 In other words,
decisions of the mahalla can be regarded as binding when it comes to its primarystatutory functions.
The first issue which raises a justified concern regarding legal incompatibility is
the mere fact that the enforceability of decisions is typical of public organizations, andits formal allocation within mahalla, a non-public self-governing institution, without any
relevant background context is unclear. The second issue touches upon the actual
competence and statutory limits of mahalla. The direction of the legal development ofmahalla laws demonstrates that this institution has a multi-functional dimension.
However, the statutory entrusting of various functions is not always followed by
45 “Postanovlenie Kabineta Ministrov Respubliki Uzbekistan N 339,” 1997.
46 Art 19 Law of the Republic of Uzbekistan about Self-Government Institutions of Citizens.

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Nagoya University Asian Law Bulletin Vol.4 (December 2018)

stipulating explicitly the mandate or the decision-making competency of mahalla. Hence,
while the law gives many statutory functions to the mahalla and confers upon it theauthority to take legally-binding actions, it does not address clearly what the authority
actually is.
Whereas the scope and the form of mahalla decisions de jure fall into a somewhat
grey zone and remain highly ambiguous, the factual situation demonstrates that its
binding decisions can only be obtained upon receiving agreement from state (public)
organs. Hence, in light of the gradual increase in mahalla’s non-peculiar functions which
simultaneously fall under the decision-making scope of state (public) bodies, one may
wonder whether it is reasonable to grant mahalla the authority to enforce their own
decisions. Therefore, given the multiple functions of mahalla as provided in law and its
ability to address local issues from a community-mobilization perspective, one may
reasonably question its de jure and de facto authority in taking binding decisions locally.

4.5 The Coordination Council
In 2013, the government came up with a legal initiative focused around composing
a bridge between mahalla and local governments which eventually resulted in theestablishment of the Coordination Council. According to the Mahalla law the functions
on coordinating activities of the mahalla are assigned to the Republican Coordinating
Council (hereinafter, the Council), as well as the coordination councils in regions,districts, and cities.47 Relevant regulations from the Cabinet and the President define theCouncil as an association of self-governing bodies (mahalla) which is not a part of the
public authority. Simultaneously, according to these regulations, the Council’sorganizational structure represents somewhat a traditional hierarchy involving many
elements from the public sector and thus, posing specific concerns regarding its being
factually non-public.48

47 Art 20 ibid.
48 “Postanovlenie Kabineta Ministrov Respubliki Uzbekistan N 329,” 2017; “Postanovlenie Prezidenta N 4944,”

2017.

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Developmental Trajectory of Mahalla Laws in Uzbekistan: From Soft Law to Statutory Law

Namely, the Prime Minister of the Republic of Uzbekistan is placed at the very topof the Council’s structure on the republican level, whereas the heads of local
administrations (khokims) in regions, districts, and cities are respectively responsible forthe chairmanship of the Council on provincial levels. The next category includes many
public officials from local executive and legislative branches. A separate regulation onsalaries stipulates that employees of the executive organs of the republican and territorial
councils are salaried as public servants.49 In addition, the first deputy chairman of theCouncil is regarded as minister, while the deputy chairman as deputy-minister.
According to the regulation, the members of each territorial coordination council arecomprised from the heads of governmental organizations (20-30 organizations),
representatives of the non-governmental sector (5-10 organizations) and self-governing
bodies (chairmen of three mahallas).50 In contrast to the total share of public officials,
the Council includes only about ten percent of local mahalla representatives(chairpersons) and a certain number of representatives from the NGO sector. Although
the regulation addresses the top as voluntary-based structure, nevertheless, themanagerial structure raises many concerns with regard to the possible conflict between
public and private interests. Furthermore, the ‘top-down’ principle set in the contents of
the legal text points to the obvious normative contradictions.51
According to the regulation, the primary objective of the Council towards mahalla
is to coordinate the direction of mahalla management, assist in implementing legal
authorities, and ensure interaction and partnership relations between mahalla, publicauthorities, and non-profits. The provisions of the same regulation also state that official
decisions of the Council are obligatory for all government and non-governmentorganizations, as well as mahallas. Thus, it appears that the Council is densely packed
by the public officials who, simultaneously maintain exceptional authority in decisionmaking. From the other hand, there is only a tiny number of mahalla representatives
with a very unclear status. Such a framework eventually raises well-grounded concerns

49 “Presidential Degree N 1778,” 1997.
50 “Postanovlenie Kabineta Ministrov Respubliki Uzbekistan N 329.”
51 N6, 69, pp2 “Postanovlenie Prezidenta N 4944.”

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Nagoya University Asian Law Bulletin Vol.4 (December 2018)

regarding the non-public character of the Council and its discretionary authority which
theoretically may intervene into the self-governing sector.

Conclusion
From 1992 until 2016, the mahalla laws demonstrated a tendency of expanding themahalla’s administrative scope by transferring numerous non-peculiar functions that had
been performed by the state to the mahalla. In the context of democratic postindependence reforms, the government asserted that legal changes would support
traditional mahalla and strengthen it as a unique Uzbek self-governing institution. The
development of laws, indeed demonstrates that mahalla became an institution
concentrating both on a large number of obligatory public tasks and non-public(traditional, customary) functions. On the other hand, the law did not offer an adequate
funding framework for the growing number of functions that was falling on themahalla’s shoulders.
The phenomenon of mahalla is that most of its typical functions originating fromsoft law and which played a vital role in preserving its traditions have been graduallyobtaining a formal character (statutory law) and becoming legally-binding for residents
and enterprises. Such transformation of soft law-based functions into statutory law hassignificantly transformed mahalla into an institution closely integrated into the systemof public administration. This observation is one of the primary aspects demonstrating
how traditional mahalla are gradually transforming into administrative mahalla.
Since the transition of presidential power in 2016, the government has adopted
several critical legal initiatives in the public administration area that additionallyinfluenced the mahalla. Recently, specific changes in Mahalla law, for example,
withdrawing some public functions, signals of the government’s emerging
understanding that mahalla should not maintain financially burdensome tasks. Insteadmahalla should concentrate on the matters which do not require large funding, forexample, social control - a function that mahalla can easily perform based on its capacity.
Even such a step can be considered as a minor positive signal regarding withdrawal of
public functions from mahalla and transforming it back to the institute to perform its

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Developmental Trajectory of Mahalla Laws in Uzbekistan: From Soft Law to Statutory Law

actual features and purposes. Furthermore, public control over public bodies cancontribute to the government’s efforts towards democratization of society as a whole.
However, the renewed statutory regulations, including the initiative to introduce thegovernment-backed Council, demonstrate that the new government’s tendency indeed
continues administering mahalla into the public sector. The findings of this research
paper indicate that mahalla laws currently contain legal contradictions which make itnearly impossible to define this institution as a self-governing body. Controversial
aspects of law address the mahalla as a quasi-governmental unit aimed to perform
numerous tasks including social control, social-welfare distribution, local dispute
resolution, and many other responsibilities. This tendency will inevitably keep on
increasing the gap between the traditional and the administrative mahalla.

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Nagoya University Asian Law Bulletin Vol.4 (December 2018)

Appendix 1
Formal (statutory) functions

Traditional (nonstatutory) functions[including those which were formalised from Adat]
Typicalgovernmental
functions(public)

Functions related to interaction withgovernmental and non-state organizations

Social welfare distribution;

Assisting law enforcement agencies inpreventing crime;

Assistingresidents
inholding
ceremonies(weddings, funerals etc);

Assistance in the implementation of
governmental policy on the patronage
of vulnerable residents (For example,
the elderly);

Assisting in the suppression of theactivitiesofunregisteredreligious
organizations, ensuring respect for the rightof citizens to freedom of religion;

Protecting the interests offamily and women in society;

Registration and keeping records ofresidents, issuing certificates ofproperty and family status of residents;

Involvement of the population in civil
protection activities and the prevention ofnatural disasters;

Conciliation activities infamily and other disputes;

Notary and certification;

Involve the population into civil
protection, assisting in organizing
notifications and mobilizing militaryreservists and conscripts to the territorial
defense departments, and also conducting
primary accounting;Formation of a positive
spiritualandmoral
atmosphere in families,
educating of the young
generation;

Informing
residents
about
governmental notices and ensuring
compliance of laws and governmental
decisions by local residents;

Assisting public agencies in conducting
political, spiritual, educational and otherlocal events

Conducting traditional andcultural events

Public order and control;

Nominating candidates to be elected to thecity/district councils;

Hashar (community cleaning
projects);

Regulation of local construction;

Assisting in the logistics of elected
city/district council members in organizing
meetings with voters;

Collecting
voluntarycontributions from residents
and philantropy;

Environmental
controlcleaning, garbage, etc);

Representing the interests
residents to state authorities;

Requesting various reports
locally based enterprises;(water,
from

of

local

Mobilization of residents’ resources for the
implementation of local improvement
works and rehabilitation of the social
infrastructure in the community;
Assisting tax authorities in the timely
collection of taxes from the population;
Assisting in public utilities fees collection(water, gas, electricity supply);
Implementation of social control over the
implementation of laws and governmental
regulations by respective organizations at
the community level;

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Developmental Trajectory of Mahalla Laws in Uzbekistan: From Soft Law to Statutory Law

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