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308LAW-MAKING AND LAW-MAKING PROCESSES
COMPARISON OF METHODS OF ANTI-CORRUPTION EXPERT EXAMINATION ESTABLISHED BY THE RF GOVERNMENT AND ADOPTED BY THE RF CONSTITUENT ENTITIES
DOI: http://dx.doi.org/10.14420/en.2013.6.7
Seredin Pavel Vadimovich, Director of the Kaluga branch of the S.A Lavochkin Research and Production Association (a Federal State Unitary Enterprise), deputy of the Kaluga City Duma, Candidate for a Master's Degree in the State Administration and Law Department of the International Institute of State Service and Administration of the Russian Presidential Academy of National Economy and Public Administration, e-mail: [email protected].
Abstract. The article describes the law-making activities of local self-governing
bodies, analyses the laws regulating the local self-government system, and studies the nature of the power authorities of population and their direct as well as their indirect expression. The notions of popular sovereignty and democracy are discussed, and the point of view that the population does not have independent competence for direct decisions on issues of a power-wielding nature is contested. It is pointed out that not only local self-governing bodies, but also the population of a municipal area, have a right to make rules, or the capability to attach a general binding character to their commands as a primary way of realizing their powers directly, using the mechanism of a referendum or a citizens' meeting.
Keywords: law-making, local legal act, local self-government, popular
sovereignty, municipal formation, territorial public group, referendum, citizens meeting.
A local self-government body exercises its law-making authority by issuing acts. A legal act is directly linked with procedure, as the legitimacy of the adopted document depends on compliance with the relevant procedure. The adoption order for any act has a number of significant procedural features that differ depending on which law-making authority adopts the act: the population, the executive bodies and the representative authority.
The population of the municipality as a source of legal acts and a lawmaker
The population of the municipality is a composite subject, and cannot be reduced to the mechanical sum of the citizens living in the territory. Contemporary authors, when exploring local self-government and its legal features, use the concept of “regional public group” or “regional group”, having a similar or identical meaning to “population of municipality”, which is the term used by the legislation1.
A regional public group is a special form of the organization of a population, and is based on territorial affiliation regardless of age and nationality. It is based on clusters of individuals and legal entities that have a territorial-public and public-legal nature, and its main characteristics are voluntary adherence to the group and special forms of public legal compulsion for members of the group who act in violation of the rules established by the group.
In the literature as well as in the legislation of a number of constituent states of the Russian Federation, the term “local community” is used. The defining characteristics of a territorial public group and a local (territorial) community are the affiliation with the place of residence and, thus, affiliation with the municipality, and the relationship (interaction) between citizens and the local community, as well as among the citizens of the local community, concerning issues of the realization or participation in the realization of local self-government2.
As A.A. Uvarov notes: “One of the main elements of the system of local self-government is a local population endowed with power executive authority. In the system of local self-government, the population should be understood as not just a group of people living in a particular area, but the local community, united in accordance with the objectives of their livelihood within the territory where the local self-government is exercised”3.
The characteristics of a local community are the following: population (community); location (territory); social interaction; and sense of community (psychological identification with the community)4. The basis of the concept of the local community as a territorial group is the consideration of the community as a territorial corporation (a legal entity in public law), based on the citizens as members united by the fact of their cohabitation5.
The legal fact of a citizen entering the territorial public group of the municipality is recorded by the registration of the citizen at his or her place of permanent or temporary residence. However, “the registration or its absence cannot serve as a
1 Chirkin V.E. Public authority. M.: Urist, 2005. P. 25, etc.
2 Babichev I.V. Territorial public employees of the municipality and local communities: Legal issues of institutionalization // Constitutional and Municipal Law. 2007. No. 19; Gorozhanin V. The notion and peculiarities of the legal status of the subjects of the local self-government in the Russian Federation // Municipal Law. 1998. No. 4. P. 10-11; Kuryachaya M.M. Local community as the foundation of an association of citizens // Constitutional and Municipal Law. 2007. No. 4.
3 Uvarov A.A. System of local self-government // Constitutional and Municipal Law. 2002. No 2. P. 12.
4 Filippov Yu.V., Avdeyeva T. T. Foundations for the development of the local economy.-M.: Delo, 2000. P. 44-45.
5 Bondar N.S. Citizen and public authorities: Constitutional guarantee of rights and freedoms in the local self-government: Tutorial. M.: Publishing House of Gorodets, 2004. P. 121.
restriction or condition for the realization of the rights and freedoms of citizens”1. The registration of voters or participants in a referendum is established on the basis of the information submitted by the bodies engaged in the registration of Russian citizens at their place of residence and place of stay.
The Constitution of the Russian Federation (Part 2, Article 3) identifies the following forms of the execution of power by the people: 1) direct power; and 2) power mediated through the bodies of state power and local self-government. The supreme direct expression of the people’s power is in referendums and free elections. However, the Fundamental Law allows the existence of other forms of direct democracy at the municipal level (Part 2, Article 130), such as, for example, gatherings of citizens; such a gathering is an alternative to the creation of a representative body of the municipality, and for settlements with a small population is the most expedient and least expensive form of municipal power. The procedure for the execution of democracy is governed by the Federal Law of October 6, 2003, No. 131-FZ, “On general principles of organization of local self-government in the Russian Federation” (hereinafter “the Law on local self-government”)2.
The literature expresses the view that citizens cannot have any power in principle, because this would mean there was a dualism of power between the people and the state authorities.
According to the supporters of this view, the notions of popular sovereignty and democracy are only a legal fiction, since, in reality, the citizens cannot exercise power on their own. They can only take part in the formation and execution of power. At the same time, people are sometimes treated as the “social source of all competences”3.
It is impossible to agree that the people (the population) have no independent competence to make direct decisions on questions of power character. It is known that the main method by which the powers of the state and the local authorities are implemented in order to achieve a target is the setting of a norm, i.e. the conferring of an obligatory nature on a decree. According to the legislation, it is not only bodies of local self-government that possess such capacity at a municipal level, but also the population of the municipality, using the mechanism of a referendum or a meeting of citizens for this purpose.
Legal acts adopted by local referendum (or by a meeting of citizens) become a part of the system of municipal legal acts and have legal force equivalent to that of the charter of the municipality. They are acts of the highest legal force in the
1 The Federal Law of June 25, 1993 No. 5242-1 “About the right of citizens of the Russian Federation to freedom of movement and choice of place of residence within the Russian Federation” // Bulletin SND and the Armed Forces of the Russian Federation. 1993. No. 32. Art. 3; Resolution of the Government of the Russian Federation dated July 17, 1995 No. 713 // Code of laws of the Russian Federation. 1995. No. 30. Art. 2939; Article 16 of the Federal Law of June 12, 2002 No. 67-FZ “About basic guarantees of electoral rights and the right of citizens to vote in referendum of the Russian Federation” // Code of laws of the Russian Federation. 2002. No. 24. Art. 2253.
2 The Federal Law of October 6, 2003 No. 131-FZ “On general principles of organization of local self-government in the Russian Federation” // Code of laws of the Russian Federation. 2003. No. 40. Art. 3822.
3 The Constitution of the Russian Federation: A problematic comment. Edited by Chetvernin V.A. M.: Center for Constitutional Studies, MPSF, 1997. p. 72; Tikhomirov Yu.A. Theory of competence. M: Urin-formcentr, 2001 P. 52, 60-62.
system of municipal legal acts, have a direct effect and are applied in the entire territory of the municipality. Other municipal legal acts must not conflict with them.
Through acts of direct democracy the citizens themselves exercise legal regulation without intermediaries, i.e. they have legal effect on the system of public relationships, using permissions and the imposition of prohibitions. The ability to make public-power decisions can be considered to be a distinguishing feature of any power, including direct democracy. Acts of direct law-making are aimed at achieving a certain legal effect (to establish, implement or abolish the rule of law, to change of the scope of laws, to create or terminate specific legal relationships, etc.).
A meeting of citizens is held to address issues of local importance only in settlements where there are not more than 100 people eligible to vote.
A meeting exercises the powers of the local representative body, including those that are within its exclusive competence. Thus, a meeting of citizens allows the direct solution of local issues by the population.
If the legislator has envisaged that a decision taken at a local referendum does not require approval by any governmental authority, government official or local self-governmental authority, then no such approval is required for a decision taken at a meeting of citizens. It is also not envisaged that a legal act adopted by a meeting of citizens needs to be submitted to the head of the municipality for signing and promulgation.
It must be assumed that a local referendum, being a form of direct democracy, should not replace the work of local self-government bodies. A decision in a referendum should be taken after a comprehensive analysis of the problems under consideration at the municipal level and should take into account the complexity and cost of the procedures involved.
A meeting of citizens, exercising the powers of the representative body of local self-government, is the most popular form for the direct solution of local issues by the population of a small community, and therefore a clear and correct stipulation of the procedures for citizens' meetings and their decision-making in the charter of the settlement is a very important factor in the implementation of the citizens' constitutional right to direct law-making.
It is necessary to agree with V. N. Rudenko that the acceptance of decisions made directly by the public requires not only a clear understanding of the tasks, determination and political will, but also, importantly, specific personal responsibility for the decision maker. Therefore, in the modern system of the organization of power and management, when the legislator has to choose who should make decisions on most public law issues, preference is given to the officials of representative and other authorities1. People cannot bear personal responsibility for the consequences of made decisions. Such responsibility may only be a historical responsibility towards future generations2, but this is not conducive to an efficient solution of the challenges of today.
There is a certain mistrust of the institution of direct law-making because of its use by political structures in order to lobby for their own interests, and the
1 Rudenko V.N. Direct democracy: Models of governance, constitutional and legal institutions. Ekaterinburg: UrLI (the Ministry of Internal Affairs of Russia), 2003 - P..116.
2 MamutL.S. People in the legal state. - M.: Norma, 1999. Chapter 4.
conversion of direct democracy1 into populist democracy. This factor alone is not conclusive evidence against the institution of direct law-making, but it gives one more argument in favour of moderation, balance and thoughtfulness in the development and adoption of legislation regulating the issues to be submitted to referendums and meetings of citizens.
Thus, direct municipal law-making to some extent represents a compromise between the municipal authorities and civil society, between professionalism and social emotion.
Law-making by representative bodies of self-government and the acts of
these bodies
The implementation of local self-government is impossible without bodies to which the population, in accordance with the law, delegates the right to decide matters directly related to the provision of people’s livelihoods. The existence of elected officials is a required condition for the organizational effectiveness of local self-government, and is indispensable to the implementation of the interests and needs of the residents of the municipality2.
There are two types of local self-government bodies: elected bodies, which are formed in accordance with federal and local laws and municipal charters; and other bodies, which are only formed in accordance with municipal charters. The law has introduced the concept of “an elected official of a local self-government”; this may be the head of the municipality, who leads the activity undertaken by the local self-government in the territory of the municipality, or another elected official.
The representative body of the municipality is a body formed in accordance with the procedure established by the law and the charter of the municipality, and is empowered with powerful authority to address local issues. It aims to represent the interests of the population, to reflect these interests in the decisions it makes, and to ensure the implementation of the powers of the municipality and the rights of citizens to exercise local self-government. Representative bodies of municipalities are not included in the system of bodies of public authorities3.
The law also stipulates various options for the employment of the head of the municipality. In accordance with the charter of the municipality, the head of the municipality may be elected during the municipal elections and lead the local administration, may be a member of the representative body with a casting vote and exercise the powers of its chairman, or may be elected by the members of the representative body and lead the representative body. The head of the municipality cannot simultaneously exercise the powers of the chairman of the representative body and the powers of the head of the local administration. This restriction does not apply to the bodies of local self-government of a rural settlement, where there is provision for the formation of an executive and administrative body chaired by the head of the municipality, and the head of the municipality also exercises the powers of the chairman of the representative body of the settlement.
There are six organizational methods for forming the local self-government
1 Rudenko V.N. Russian populism: Origins, meaning, fate. Ekaterinburg: UrLI (the Ministry of Internal Affairs of Russia), 1993.
2 Kazachenkova O. V. Peculiarities of the legal status of bodies of the local self-governments: Legislative and enforcement issues // Administrative and Municipal Law. 2012. No 8. - P. 31.
3 Kolushin E.I. Municipal law of Russia. - M.: Norma, 2008. - P. 133-134.
structure1, and these differ in their forms for the elections of the heads of the municipality, the local administration and the representative body. There are also options for appointing the head of the local administration by a contest, combining the powers of the head of the local administration and the chairman of the representative body of the municipality, etc.
Establishing a number of deputies for a representative body is extremely important for the municipality, although this question has not always been given due attention in the legislation and practice for local self-government. The number of members of a representative body was not previously directly regulated by the legislation on local self-government. As a result, deputy bodies began to be formed in states of the Russian Federation without uniform criteria2. The Law on local self-government regulated the matter in more detail and, in particular, set a minimum number of members for representative bodies of municipalities.
Functionally, the representative bodies are designed to perform what is primarily a norm-making function3, i.e. to adopt regulations on matters within their competence as permitted by the federal laws, the laws of the relevant state of the Russian Federation, and the charter of the municipality. Such regulations would establish, for example, the official symbols of the municipality, the law-making procedure for implementing citizens’ decisions, and the organization and conduct of public hearings.
The work of a representative body includes, among other things, the organization of the oversight of the implementation of its decisions and the activities of other bodies of local self-government, as well as the holding of public hearings to discuss draft municipal legal acts on local issues that require the participation of the residents of the municipality.
The procedure and results of the law-making of executive bodies of local
self-government
The law establishes a mandatory presence of the local administration (the executive-administrative body of the municipality) in the structure of the bodies of local self-government4. However, the Constitutional Court of the Russian Federation has acknowledged that the creation of executive bodies of local selfgovernment is at the discretion of local communities and cannot be established by the law of the state of the Federation as a mandatory requirement. Thus, a provision requiring the formation of an executive body along with a representative one was declared unconstitutional5. This decision formally demonstrates consistency with the principle of the independence of the population in decisions on matters of local importance, but at the same time reinforces the lack of balance in the local self-government structure.
The legal literature states that the legal position of the executive-
1 Municipal law of Russia / Edited by Kostukov A.N. - M.: UNITI-DANA, 2007. - P. 181-185.
2 Pravdin D.G. Legal regulation of interaction between representative and executive-administrative bodies in the municipality in the Russian Federation. Edited by Komkovaya G.N. - M.: DMK Press, 2012.
3 For more details see Aleshkova N.P. Constitutional and legal foundations of the municipal law-making in the Russian Federation. Ekaterinburg: Ural State Law Academy, 2012.
4 Ignatov V.T., Butov V.l. Local self-government in Russia and its reformation: History and modernity. Rostov-na-Donu: Publisher SKAGS, 2004. - P. 70.
5 The Decision of the Constitutional Court of the Russian Federation of February 1, 1996 No. 3-p “On the case about the verification of constitutionality of some provisions of the Charter i.e. the Supreme Law of Chita oblast” // Code of laws of the Russian Federation. 1996. No. 7. Art. 700.
administrative body of local self-government is influenced not only by the legislative and other normative and legal regulations, but also by the method by which the local administration is formed, and the system of relationships with other bodies of the municipality1.
The organization of the activities of the local administration is carried out in accordance with the requirements of the Constitution of the Russian Federation, the federal laws, the constitutions (charters) and laws of the state of the Russian Federation, the provisions of the municipal charter, the legal acts adopted at local referendums (meetings) of citizens, and the regulations and other legal acts of the representative body of the municipality, based on the regulations of the local administration. The regulations of the local administration, as well as the regulations of the representative body of the municipality, are not part of the system of municipal legal acts, and are approved by a decree or order of the head of the local administration, and sometimes by a decision of the representative body of the municipality.
From the viewpoint of the publication of municipal legal acts, a federal legislator has determined that the acts of the head of the local administration, i.e. decrees and orders, and not the acts of the local administration, should be made public. Other officials of local self-government (e.g., deputies head of the local administration, or the leaders of the structural units of the local administration, etc.) issue instructions and orders on matters within their competence as laid down by the charter of the municipality. Thus, if the charter of the municipality does not stipulate that it is possible for other officials to issue independent municipal legal acts, then these acts cannot be issued by them, i.e. these officials do not have their own law-making competence.
However, deputy heads of the local administration can have not only the right to issue their own municipal legal acts (that is, decrees or orders of the deputy head of the local administration), but also the right to sign the municipal legal acts of the local administration if the power to do so has been delegated to them by the head of the local administration2.
Article 74 of the Law on local self-government stipulates that it is possible for a normative legal act to be issued by the head of the municipality or the head of the local administration. The law establishes that the head of the municipality or local administration may be impeached for publishing a normative legal act that contradicts the Constitution, the law or the charter.
There is a debate about the possibility of municipal legal acts being published by the head of the municipality on his or her own behalf. The powers of the head of a municipality depend on his or her position in the system of bodies of local self-government - whether, for example, the head of the municipality performs the duties of the chairman of the representative body, or the duties of the head of the local administration. This provision is worded imperatively, and because of this a broad interpretation seems impossible. In addition, it deals with municipal legal acts in general, and not just with regulations. In this way, the head of the
1 For more details see Kolesnikov A.V. The legal status of the executive bodies of the local selfgovernment. Saratov: Saratov State. Academy of Law, 2004; Korosteleva M.V. Executive bodies in the system of the local self-government. Volgograd: Publisher VAGS, 2004.
2 Baranov P.M. About problems of the powers of the bodies and officials of the local government on the adoption of regulatory legal acts // Constitutional and Municipal Law. 2011. No 2. - P. 54.
Altunin S.M. Procedure of arrangement of conflict of interest in federal state authority bodies
municipality is deprived of his or her own powers in the field of municipal lawmaking.
At the same time, the head of the municipality is vested with his or her “own powers to address local issues”. However, the implementation of this power without the ability to issue legal acts (or even acts of a regulatory nature) mediating its enforcement is practically impossible.
Problems arise with the definition of the competence of other local selfgovernment officials in municipal law-making. The structure of the local government reflects the opinion of the head on the most efficient way to organize the work of the body headed by him, and can often undergo significant changes during a reform procedure or a change of management. To establish the structure of the local administration in the charter, which is fundamental and should be the most stable municipal legal act, is not rational. However, if the charter does not regulate the structure of the local government, then the powers of the officials of the local administration cannot be stipulated in it.
References
1. Aleshkova N.P. Constitutional and legal foundations of the municipal law-making in the Russian Federation: Monograph. Ekaterinburg: Ural State Law Academy, 2012.
2. Babichev I.V. Territorial public employees of the municipality and local communities: Legal issues of institutionalization // Constitutional and Municipal Law. 2007. No. 19.
3. Baranov P.M. About problems of the powers of the bodies and officials of the local government on the adoption of regulatory legal acts. Constitutional and Municipal Law. 2011. No. 2.
4. Bondar N.S. Citizen and public authorities: Constitutional guarantee of rights and freedoms in the local self-government: Textbook. M.: Gorodets, 2004.
5. Chirkin V.E. Public authority. Moscow: Urist, 2005
6. Gorozhanin V. The notion and peculiarities of the legal status of the subjects of the local self-government in the Russian Federation // Municipal Law. 1998. No. 4.
7. Ignatov V.T., Butov V.I. Local self-government in Russia and its reformation: History and modernity. Rostov-na-Donu: Publisher SKAGS, 2004.
8. Kazachenkova O. V. Peculiarities of the legal status of bodies of the local self-governments: Legislative and enforcement issues // Administrative and Municipal Law. 2012. No. 8.
9. KolesnikovA.V. The legal status of the executive bodies of the local selfgovernment. Saratov: Saratov State Academy of Law, 2004.
10. Kolushin E.I. Municipal law of Russia. M.: Norma, 2008.
11. The Constitution of the Russian Federation: Comments on problem. Edited by Chetvernin V.A. M.: Center for Constitutional Studies, MPSF, 1997.
12. Korosteleva M.V. Executive bodies in the system of the local selfgovernment. Volgograd: Publisher VAGS, 2004.
13. Kuryachaya M.M. Local community as the foundation of an association of citizens // Constitutional and Municipal Law. 2007. No. 4.
14. Mamut L.S. People in a State of Law. M.: Norma, 1999.
15. Municipal law of Russia. Edited by Kostukov A.N. M.: UNITI-DANA,
2007.
16. The Decision of the Constitutional Court of the Russian Federation of February 1, 1996 No. 3-p “On the case about the verification of constitutionality of some provisions of the Charter i.e. the Supreme Law of Chita oblast” // Code of laws of the Russian Federation. 1996. No. 7. Art. 700.
17. Resolution of the Government of the Russian Federation dated July 17, 1995 No. 713. Code of laws of the Russian Federation. 1995. No. 30. Art. 2939.
18. Pravdin D.G. Legal regulation of interaction between representative and executive-administrative bodies in the municipality in the Russian Federation. Edited by Komkovaya G.N. M.: DMK Press, 2012.
19. Rudenko V.N. Direct democracy: Models of governance, constitutional and legal institutions. Ekaterinburg: UrLI (the Ministry of Internal Affairs of Russia), 2003.
20. Rudenko V.N. Russian populism: Origins, meaning, fate. Ekaterinburg: UrLI (the Ministry of Internal Affairs of Russia), 1993.
21. Tikhomirov Yu.A. Theory of competence. M.: Urinformcentr, 2001.
22. Uvarov A.A. System of local self-government // Constitutional and Municipal Law. 2002. No 2.
23. The Federal Law of October 6, 2003 No. 131-FZ “On general principles of organization of local self-government in the Russian Federation” // Code of laws of the Russian Federation. 2003. No. 40. Art. 3822.
24. The Federal Law of June 25, 1993 No. 5242-1 “On the right of citizens of the Russian Federation to freedom of movement and choice of place of residence within the Russian Federation” // Bulletin SND and the Armed Forces of the Russian Federation. 1993. No. 32. Art. 3.
25. The Federal Law of June 12, 2002 No. 67-FZ “On basic guarantees of electoral rights and the right of citizens to vote in referendum of the Russian Federation” // Code of laws of the Russian Federation. 2002. No. 24. Art. 2253.
