Independence of local self-government in conditions of unified public authority system formation

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Independence of local self-government in conditions of unified public authority system formation

Yuliya G. Babaeva

Abstract

The article concerns the issues related to the determination of local self-government bodies' role in the unified system of public power, which is being formed due to the implementation of the constitutional reform on effective interaction between state and municipal bodies. The author examines the concept of the “unified system of public authority”, identifying the key semantic meanings that influence its formation, and analyzes the prospects of local self-government bodies either to preserve or loose independence as a result of their inclusion in the unified system of public authority (Federal Law No. 394-FZ of December 8, 2020, On the State Council of the Russian Federation).

Key words: Constitution of the Russian Federation, unified system of public authority, unified public authority, local self-government, local government, coordination of activities, state power, state power bodies, structure of the rule of law

Àííîòàöèÿ

Ñàìîñòîÿòåëüíîñòü ìåñòíîãî ñàìîóïðàâëåíèÿ â óñëîâèÿõ âõîæäåíèÿ â ñèñòåìó îðãàíîâ ïóáëè÷íîé âëàñòè

Þ.Ã. Áàáàåâà

Ðàññìàòðèâàþòñÿ âîïðîñû, ñâÿçàííûå ñ îïðåäåëåíèåì ìåñòà îðãàíîâ ìåñòíîãî ñàìîóïðàâëåíèÿ â åäèíîé ñèñòåìå ïóáëè÷íîé âëàñòè, ôîðìèðóþùåéñÿ â ñâÿçè ñ ðåàëèçàöèåé êîíñòèòóöèîííîé ðåôîðìû ïî ýôôåêòèâíîìó âçàèìîäåéñòâèþ ìåæäó ãîñóäàðñòâåííûìè è ìóíèöèïàëüíûìè îðãàíàìè. Àâòîð ðàññìàòðèâàåò ïîíÿòèå «åäèíîé ñèñòåìû ïóáëè÷íîé âëàñòè», âûÿâëÿÿ êëþ÷åâûå ñìûñëîâûå çíà÷åíèÿ, âëèÿþùèå íà å¸ ôîðìèðîâàíèå, ïðîâîäèò àíàëèç âîçìîæíîñòè ñîõðàíåíèÿ èëè óòðàòû ñàìîñòîÿòåëüíîñòè îðãàíàìè ìåñòíîãî ñàìîóïðàâëåíèÿ â ðåçóëüòàòå èõ âêëþ÷åíèÿ â åäèíóþ ñèñòåìó îðãàíîâ ïóáëè÷íîé âëàñòè Ôåäåðàëüíûì çàêîí îò 08.12.2020 ¹ 394-ÔÇ «Î Ãîñóäàðñòâåííîì Ñîâåòå Ðîññèéñêîé Ôåäåðàöèè».

Êëþ÷åâûå ñëîâà: Êîíñòèòóöèÿ Ðîññèéñêîé Ôåäåðàöèè, åäèíàÿ ñèñòåìà ïóáëè÷íîé âëàñòè, åäèíàÿ ïóáëè÷íàÿ âëàñòü, ìåñòíîå ñàìîóïðàâëåíèå, ìåñòíîå óïðàâëåíèå, êîîðäèíàöèÿ äåÿòåëüíîñòè, ãîñóäàðñòâåííàÿ âëàñòü, ãîñóäàðñòâåííûå îðãàíû âëàñòè, ñòðóêòóðà íîðìû ïðàâà

Introduction

The results of the all-Russian vote on amendments to the Constitution of the Russian Federation The Law of the Russian Federation on the amendment to the Constitution of the Russian Federation No. 1- FKZ of March 14, 2020 On Improving the Regulation of Certain Issues of the Organization and Functioning of Public Power. Consultant Plus Law Assistance System. formed the basis that gives rise to generating scientific understanding of both the concept and structure of the unified system of public authority (Peshin, 2020; Babichev, 2021; Pisarev, 2020; Chebotarev, 2020, etc.) and the place of local self-government bodies in this system in terms of coordinating activities within such a system.

According to Clause “e5” of Article 83 of the Russian Constitution, the work on public authorities' unification will be insured and provided by the State Council of the Russian Federation, formed by the President of the Russian Federation; this is, in fact, the development of the provision of Clause “d” of Article 71 of the Russian Constitution defining issues under the jurisdiction of the Russian Federation. The launch of constitutional reforms caused by the approval of amendments to the Constitution demonstrates certain results. One of them is the adoption of the Federal Law on the State Council of the Russian Federation Federal Law No. 394-FZ of December 8, 2020, On the State Council of the Russian Federation. Consultant Plus Law Assistance System. (hereinafter referred to as the Law on the State Council). This Law allows to reveal and withdraw a few issues concerning the bodies involved in the unified system of public authority. They include:

• bodies of the state power,

• bodies of the state power of the constituent entities of the Russian Federation,

• other state bodies,

• local self-government bodies, taken in totality.

One of the controversial issues is to define the place and scope of powers of local self-government when included into the unified system of public authority. The question arises whether it is possible to maintain independence, since the state power implemented by the state bodies, is characterized by sovereignty, while municipal power is sub-legislative (Peshin, 2020); unsolved contradiction can lead to the “governmentality” in the local authority and the loss of its potential “as the closest to people's level of power.” That is why the research focuses on the actual situation of local self-government in the light of amendments to the Constitution of the Russian Federation in 2020.

Local self-government in the unified system of public authority

The established by the above article constitutional norm is a norm-principle based on its role in the mechanism of legal regulation; it is characterised by the internal structure. It is worth mentioning theoretical disputes concerning the normativity of constitutional provisions, since not all of them establish rights and obligations (Luchin, 1997:8). We believe that the position expressed by V.N. Kudryavtsev and A.M. Vasiliev (Kudryavtsev & Vasiliev, 1985) and further developed by V.O. Luchin (Luchin, 1997:14) that constitutional provisions are normative institutions, have features of normativity, and meet the requirements of legal normativity is quite correct. This includes:

1. Mandatory requirements. Disclosure of this provision is possible by Article 15 of the Russian Constitution, which establishes the supremacy of the Constitution and its direct impact throughout the territory of the Russian Federation. At the same time, hierarchical supremacy over the entire legal system is consolidated with the requirement that all legal acts comply with the Constitution.

2. The territorial character of the constitutional provisions implementation and mandatory official publication of laws affecting the rights and freedoms of a person and citizen, as well as their duties.

3. The Constitution and the laws of the Russian Federation equally apply to addressees: state and municipal powers, their officials, citizens, and their associations.

We believe that at present the normativity of the constitutional provisions is beyond doubt, and it is possible from the position of the structure and its elements to constructively analyse Article 12 of the Constitution of the Russian Federation. And here again we find essential to briefly examine theoretical research on the presence of structure in the constitutional norm. In his work Constitutional Norms and Legal Relations V.O. Luchin carried out a deep critical analysis of the legal norm structure established in jurisprudence, where hypothesis, disposition and sanction are distinguished. However, the perceptions expressed in the doctrinal literature that only the presence of all the three structural elements of the norm and their certain connection allows to speak about the rule of law, as a special regulator of public relations, seem to be incorrect (Babaev, 1978, cited by: Luchin, 1997).

V.O. Luchin quite rightly noted that the effectiveness of the legal norm, first of all, is not related to its logical structure, but to the practice-oriented prescriptions that regulate the participants' behaviour in public relations. The practical purpose of the rules of law is determined by the fact that it is impossible to construct a structurally universal norm or come up with a universal norm structure suitable for all cases of constructing legal norms (Luchin, 1997:50). Depending on the purpose of legal regulation, object, subject and other conditions, the structure of the rule of law may also differ. Therefore, recognition of three elements -- hypotheses, disposition and sanction -- as a criterion for determining the rule of law contradicts reality In 1959, B.V. Sheindlin wrote that structural construction which is characteristic and applicable for some legal norms, can be not applicable for others (Sheindlin, 1959:91, cited by: Luchin, 1997:51).. Thus, the three-part structure of the legal norm may be described as a model that includes the maximum possible number of elements. In practice, formulation of constitutional provisions of a normative nature should be based on “an integral, logically completed, formally consolidating the state-imperious command and, in relation to this, construct its structure” (Luchin, 1997:54). Hence, the structure of some constitutional and regulatory prescriptions will correspond to a three-part model whereas the structure of others will have modifications in the number of elements of the norm.

Such a detailed description of the existing understanding in the constitutional doctrine of the norm structure of the Constitution seemed necessary to clarify the semantic load of each of the elements included in Article 12 of the Constitution. And here, it is worth mentioning the difficulty in identifying these elements as the question of whether legal principles can be classified as rules of law has also been discussed in the theory of law, since they have essential differences from ordinary legal norms both in their content and regulatory properties, and in modes of their implementation (Morozova, 1985:53, cited by: Luchin, 1997:17). Understanding of ordinary norms as the norms having a three-part structure, cannot deprive constitutional provisions, which are, in fact, principles, of the status of the rule of law. A.S. Pigolkin quite rightly defended the “right” of principles to be recognized as rules of law “.. .after all, they are the norms of law” and are not just something being contained in the law, but secondary to it by its content” (Pigolkin, 1978:58, cited by: Luchin, 1997:18)..

Thus, starting to analyse the norm of Article 12 of the Russian Constitution, we will proceed from the fact that, in substance, it is a norm-principle that defines and fixes at the constitutional level the basic initial provisions, and legal principles of local self-government in the Russian Federation. At the same time, the norm-principle has its own structure, which can contain three structural elements of the “reference rule of law” -- hypothesis, disposition and sanction -- and/or have its own modification in the number of structural elements of the norm.

We believe that Article 12 of the Constitution includes two of the three elements of the rule of law structure -- hypothesis and disposition. The hypothesis is stated in the first sentence of the article and represents a condition under which the legal norm is subject to application: “In the Russian Federation local self-government shall be recognized and guaranteed”. Thus, among the conditions for the stability and inviolability of the constitutional system, both recognition of local self-government and its guarantee are indicated. Considering that this norm is included in the “tough” chapter of the Constitution we confirm the nominal preservation of local selfgovernment in the articles of the Constitution, but its essential implementation will have to be carried out through regulatory legal acts adopted on this subject of regulation. Considering that the hypothesis indicates the conditions under which this legal norm is subject to application, we also accept that recognition and guarantee acknowledges the existence of local self-government.

Disposition is understood as a certain permission, prescription, or prohibition for or on the commission of certain actions / omissions; it is a certain rule of behaviour that must either be followed or recommended in certain legal relationship. The disposition in the norm of Article 12 of the Constitution is reflected in: “Local self-government shall be independent within the limits of its authority. The bodies of local self-government shall not be part of the system of state authorities”. In other words, there is a certain requirement -- independence of local self-government, as well as prohibition against inclusion of local self-government bodies in the state power system. At the same time, the first sentence in this disposition refers to a blanket one, by analogy with blanket dispositions characteristic of the science of criminal law, since in order to clarify the content of the “limits of powers” of local self-government, it is necessary to refer to special legal acts regulating these issues. Such a special act is Federal Law No. 131-FZ Chapter 8 of the Constitution of the Russian Federation discloses the issues of local importance and the competence of local self-government bodies to resolve them. At the same time, the foundations of local self-government organization are determined by the federal law, the adoption of which is provided for in Part 1 of Article 131 of the Constitution of the Russian Federation. Federal Law No. 131-FZ of October 6, 2003, On the general principles of the organization of local self-government in the Russian Federation. Consultant Plus Law Assistance System..

Summing up the analysis of Article 12 of the Constitution of the Russian Federation it should be emphasized that:

0 nominal independence of local self-government has not changed in the context of constitutional reforms,

1 Constitution of the Russian Federation preserves and guarantees resolution of issues within the competence of local self-government bodies by these bodies independently,

2 local self-government bodies are included in the unified system of public authority as equal bodies with state power bodies.

Herewith, the most important issue is coordinating the work of the bodies of these levels of public power, as well as a clear distinction between the concepts of “public authority/power” and “state authority/power” as independent generic concepts. Legally and technically, “public authority” is the system whose driving force is the power of the people to solve global (federal) tasks and the power of the same people to solve local tasks. Coordination of actions within the system is always clear and allows acting more effectively in the interests of the entire population.

Nevertheless, there is a separate question concerning the correlation of the concepts of “local government” and “local self-government”, which seem to be similar in essence, but different in terms of content. Addressing and focusing on these terms is necessary as both formats for the implementation of power functions at the local level are in place. On the one hand, local self-government bodies are independent within their powers, and on the other hand, there are issues at the local level that go beyond the “limits of authority” and then “local governance” is carried out. Theoretical research on what is more correct for solving local problems, “government” or “self-government”, in practice will matter only from the position of responsibility for the results that have occurred. If the competencies clearly indicate that the issue is being resolved by the local government, then we are talking about “self-government” and the responsibility is borne by the local government. On the contrary, if this is the competence of the state in a broad sense and the competencies have not been transferred to the local level, then the responsibility for |management| is borne by the state power. If the competencies were transferred, then they had to be necessarily controlled by the body who had delegated them, in this case, the state authorities. The non-fulfilment or improper execution of the delegated powers is the responsibility of the local authorities whereas the lack of control or improper control is the responsibility of the state authorities. If the local government acts contrary to the tasks assigned to it in connection with delegation of powers, then again, the responsibility belongs to the local government.

Independence of local government does not mean its independence from the interests of the people who elect both local and state authorities. It is by virtue of this direct and immediate dependence that the local self-government bodies are subject to federal legislation that establishes its foundations and acts in the interests of the local people in compliance with federal and regional legislation A certain confirmation of this thesis is also contained in the Resolution of the Constitutional Court of the Russian Federation No. 30-P of December 1, 2015: “Fixing the independence of local self-government as the main principle of relations with public authorities, the Constitution of the Russian Federation proceeds from the fact that this independence is not absolute, it does not imply the denial of organizational and other forms of interaction of local self-government bodies and public authorities”. Resolution of the Constitutional Court of the Russian Federation No. 30-P of December 01, 2015 On the case of checking the constitutionality of Parts 4, 5 and 5.1 of Article 35, Parts 2 and 3.1 of Article 36 of the Federal Law On General Principles of Organization of Local Self-Government in the Russian F ederation and part 1.1 of Article 3 of the Law of Irkutsk Region On certain issues of formation of local self-government bodies of municipalities of Irkutsk Region in connection with the request of a group of deputies of the State Duma. Consultant Plus Law Assistance System.

Also, Part 3 of Article 18.1 Assessment of the effectiveness of the activities of local self-government bodies, the Law on Local Self-Government, which provides for inter-budgetary transfers to encourage the best practices of the local self-government bodies in organizing municipal governance and resolving issues of local importance of municipalities, also refers to municipal (local) governance. Several times the Law on the State Council also mentions municipal administration, paragraph 3 of Article 6; paragraph 2 of Part 5 of Article 11; paragraph 5 of part 1 of Article 17..

It seems quite reasonable and practical to turn to the already existing experience of the activities of local councils in the USSR, which actually implemented the will of the people E.I. Kozlova noted that “the local population, together with all members of Soviet society, acts as the bearer of the people's will, which is implemented by the Council and which it embodies as a state organ as part of its mechanism”. Kozlova E.I. Councils of Workers Deputies -- bodies expressing the people' will: Published Summary of the thesis for a Doctor of Legal Sciences (Kozlova, 2017:34).. We noted above that having their own interests, the people living in a particular territory cannot be considered separately from the entire population of the country; these people certainly have their own needs, but they cannot conflict with the interests of the entire population of the country. In any case, the population / people living in a certain municipality allocated as an independent entity take their needs and development of this municipality as stage-by-stage process, and the population / people through their representative bodies must implement them at the regulatory level and through their executive bodies to achieve the desired result. It is the coordination of work on practical implementation of municipal needs that represents a new stage in the formation and development of local self-government bodies and local self-government in the unified system of public authority. In fact, E.I Kozlova “if the population of any administrative-territorial unit is an integral part of the entire Soviet people, then the workers will, represented by the local council, cannot be considered in isolation from the will of the entire Soviet people, or be associated only with the reflection of local interests” (Kozlova, 2017:36--37). noted that the expressed will of the local population is at the same time the will of a part of the Soviet people; this leads to a slightly different assessment of local interests by the local council. With such approach, the local council is no longer only the advocate of local residents' will, but the executor of the will of the Soviet people living in the specific period of time on this territory. And this renders a completely different essence to the activities of the local council.

A.A. Larichev writes that a similar theoretical substantiation proposed by E.I. Kozlova, logically justifies the supremacy of representative bodies over executive bodies through legitimacy of the mandate received from the people at the elections (Larichev, 2020). In the context of formation of the unified system of state authority, it is very important to find a balance and coordinate work at the local level so that the executive bodies fulfil the will of the local population, expressed in the forms established by law.

Hence, the following conclusion can be drawn: at the local level, both selfgovernment and management are carried out simultaneously; self-government is implemented within the competence of local self-government bodies, and management at the local level is implemented both by state authorities and by local self-government bodies by delegating certain state powers to them supported with transfer of material and financial resources necessary for exercising such powers. The implementation of such powers is controlled by the government.

It is also necessary to look at a systematic and logical interpretation of the legal consolidation of the powers exercised by local self-government bodies. As discussed above, the Constitution is a fundamental act for the modern system of local selfgovernment since it guarantees the very fact of local self-government existence, its independence within their powers and isolation of local self-government from public authorities. The competence of local self-government bodies is explained by the Law on Local Self-Government. There is a fair opinion in the literature that the local selfgovernment bodies should independently ensure the solution of issues of local importance (Eremyan & Chikhladze, 2020:124), but this does not mean that the bodies of the unified system of public authority, which are being formed, may avoid solving tasks of local self-government. The draft federal law on the fundamentals of local self-government (currently under discussion), provides for participation of other bodies of the unified system of public authority in resolving issues of local importance Draft Federal Law No. 40361-8 On General Principles of Local Self-government Organization in the Unified System of Public Authority (ed., adopted by the State Duma of the Federal Assembly of the Russian Federation in the first reading on January 25, 2022). Consultant Plus Law Assistance System.. And this, in our opinion, gives hope for the development of the applied and practical nature of local self-government, rather than multiplying discussions about the degree of compliance with the democratic foundations of local selfgovernment: who elects whom, who appoints whom and what the procedure is like. At the same time, it requires a genuine establishment of practice-oriented interaction between local authorities, authorities of the constituent entities of the Russian Federation and federal state bodies in identifying and implementing the local needs of the population, considering the positive experience of the Soviet government in understanding the expression of the will of the local population as part of the entire Soviet people. Understanding should also be formed that the entire people can influence the resolution of local issues, hence the Law on the State Council highlights the issue of coordination of the activities of all bodies and levels of the unified system of public authority in the Russian Federation.

Conclusion

In conclusion, we consider it is necessary to note that the formation of the unified system of public authority will significantly increase the importance and role of local self-government bodies in developing a system of coordination mechanisms in management at both the government and local levels. At the same time, theoretical and applied research will be required in terms of delineating functional interaction within the framework of “local government”, which will be implemented at the local level by both state bodies and local self-government bodies. It is also possible that this will lead to the development of its own model of local self-government in the Russian Federation, which includes elements of recognized models of local selfgovernment organization by the scientific community. The specific and peculiar character of the Russian model will be related to the specifics of organization of local self-government's effective functioning on the territory of a geographically extended state, which is the Russian Federation.

We assume that the degree of the local self-government independence to a certain extent depends on the territory of the state in the geographical sense. The smaller the territory and the denser the population, the more issues can be solved at the local level; it is easier both technically and organizationally to implement control, supervision, and judicial protection within the framework of the unified state policy in the interests of society.

Also, the organization of local government depends on the form of government, which cannot but affect the Russian Federation. Given its geographical extent, the Russian Federation, as a federation, must ensure the sustainable character of both the state system and its territorial integrity. Among other aspects, this can be explained by the establishment of common foundations for local self-government organization. At the same time, Russia strives to ensure the actual, not only declarative, independence of local authorities, even nominally using the term “local selfgovernment”. Although, given the geographical location of Russia, ensuring political and legal unity with the allocation of “self-government” may ease the necessary concentration in solving issues, including those affecting the local level. Therefore, not only the unified system of public authority is being introduced by law, but also unified approaches and principles for its implementation are being formed. The system being built will allow, through coordination, to determine both the areas of responsibility and the areas of influence of the local population on the central government and vice versa, the areas of influence and responsibility of the central government to the local population. The symbiotic interaction between governmental bodies at all levels with local authorities is a guarantee of non-declarative but actual application of the municipal legislative norms.

A large geographical extent usually leads to unitary form of state system, for example, the countries of South America, Central America, and the Caribbean. Twenty-five countries out of twenty-nine have a unitary form of governance (Eremyan, 2019:403) (if we have a look at the political map of this region, we can see the great extension of the territories of the countries on the South American continent). China is another example of a geographically extended state. To optimize the management of the territory, separate territorial governing bodies are also being created, at the local level as well, but due to the specifics of the unitary state structure of the PRC The Constitution of the People's Republic of China defines the Chinese government as unitary 1959. Basic normative acts on local power bodies and state governance of the People's Republic of China.. In PRC, the system of local governance is carried out within the territories of national autonomies, which, like the entire territorial organization in the country, is determined by the decision of the supreme body of the state power and the State Council (Chupanov, 2019:505). The bodies of the districts of national autonomies are called self-government bodies. The introduction of “self-government rights” is pointedly aimed at considering the specifics at the local and, at the same time, national level “to make administrative bodies more capable to act in local specific conditions” (Chupanov, 2019:506--507).

Evidently, the historical development of local government, the traditions that have developed in the state, the legal family to which the state belongs also have a significant influence on the formation of a particular model. But here, too, we see that the land area and geographical location impact the local government system. For example, the United Kingdom of Great Britain and Northern Ireland has carried out a global regional reform with the allocation of large self-governing units to varying degrees (the process of “devolution”) (Ezhevsky, 2019:133). Here, on the one hand, the process of improving governance and increasing the level of importance of local government is seen, and compared to Brazil or China, the United Kingdom is much smaller geographically, but (!) here we see echoes of the dissolution of the British Empire... And this dissolution, due to a lesser intensity of ties between the centre and the periphery and greater independence of colonies, led to disappearance of the empire from the political map of the world.