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Legal Studies
Reference:
Anisimova E.A.
Referendum legislative process of the subjects of the Russian Federation
// Legal Studies.
2022. № 4.
P. 25-33.
DOI: 10.25136/2409-7136.2022.4.37715 URL: https://en.nbpublish.com/library_read_article.php?id=37715
Referendum legislative process of the subjects of the Russian Federation
Anisimova Ekaterina Aleksandrovna
PhD in Law
Docent, the department of State Legal Disciplines, Northwest Institute (Branch) of O. E. Kutafin Moscow State University of Law
160000, Russia, Vologodskaya oblast', g. Vologda, ul. Marii Ul'yanovoi, 18, of. 312
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piskunyara@inbox.ru
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DOI: 10.25136/2409-7136.2022.4.37715
Received:
20-03-2022
Published:
01-05-2022
Abstract:
The subject of the study is the theory and practice of implementing the legislative process of Russian regions through the referendum procedure. The object of the study was public relations regulated by acts on holding regional referendums on the adoption of laws. The author examines in detail such aspects of the topic as the legal regulation of the referendum legislative process, the advantages and disadvantages of the institute, provides an overview of the practice of holding referendums in a number of Russian regions. Special attention is paid to the possibility of implementing the people's legislative initiative in the referendum process of the Russian regions. It is noted that the phenomenon under study depends on the political alignment of forces in a particular subject of the Russian Federation. The scientific novelty of the study lies in the fact that the consideration of the referendum as an alternative legislative mechanism of the subjects of the Russian Federation was not carried out in Russian constitutional law. The findings of the study also have a scientific novelty. The main conclusions are as follows: the referendum legislative process at the level of the regions of Russia is a convenient tool for attracting citizens to lawmaking and, as a result, improving the quality of civil society and the rule of law. A special contribution of the author to the study of the topic can be considered the analysis of the practice of regional referendums, in addition, the author has attempted to assess the strengths and weaknesses of such a variant of the legislative process.
Keywords:
regional referendum, regional legislative process, people's initiative, direct democracy, parliament, civil society, the rule of law, voting, draft law, electoral technologies
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Relevance of the topic The absolute value of any democratic State is legislation adopted in compliance with all the requirements of the legislative procedure. The main subject of the legislative process, quite rightly, is the Parliament, a public authority formed through elections. The elective procedure for the formation of the parliament a priori is proof of the democratic nature of the legislative acts adopted by it. However, Russian legislation also provides for an even more democratic way of passing laws – holding a referendum. Despite the practice of holding referendums in Russia, which tends to zero, this constitutional institution has a great unrealized potential, including as a form of a special legislative process. A referendum can be even more effective in federal states, where, subject to an adequate distribution of competence between the levels of public authority, the subjects of the federation can resort to the most democratic procedure to resolve issues in their region. What makes this topic relevant in modern Russian realities is the permanent need to democratize the public administration system on the one hand, and to increase the activity of civil society on the other. Moreover, the use of a referendum to solve acute social issues, such as the fight against the coronavirus pandemic, the modernization of the education system and others that cause active discussion in society, could reduce social tension. As for the degree of study of the topic, it does not seem sufficient. Most studies are devoted either to the classical legislative process at the federal and regional levels, or to the procedure of federal or regional referendums. For example, V. V. Komarova "The mechanism of direct democracy in modern Russia (system and procedures)" [1], Vorobyeva E. I. "The Institute of referendum in Russia: problems of implementation" [2], Kuryachaya M.M. "Referendum as a socio-legal institution: evaluation of effectiveness" [3], Tolstik V.A. Trusov N..A. "The referendum in Russia: fundamentals, experience, criticism" [4], Zhanuzakova L. T. "On the issue of improving the legislation on the referendum" [5] Sintsov G.V. "The referendum of the subject of the Russian Federation: trends and contradictions" [6], Senyakin I. N. "Lawmaking and lawmaking" [7], Beketova S.M. "Legislative process in the Russian Federation" [8], Bulakov O.N. "Parliamentary law of the Russian Federation" [9], Vasilyeva T.A. "How to write a law" [10], Vasiliev R. F. "Legislative process. The concept. Institutes. Stages: A scientific and practical manual" [11], Krasheninnikov P.V. "Federal legislative process" [12], Kalugina T.V. "Legislative process in the subjects of the Russian Federation: general and special" [13], Piskunova E.A. "Legislative process in the subjects of the Russian Federation" [14]. The authors paid attention to the analysis of the referendum in foreign countries – for example, Maklakov V.V. "Referendum in foreign countries" [15]. Consideration of the referendum as an alternative legislative mechanism of the Russian regions was not carried out at all. Legal regulation of the referendum legislative process of the subjects of the Russian Federation Russian legislation lapidarily assumes the possibility of adopting laws by referendum bypassing the parliamentary legislative process, this statement is true for both the federal and regional levels. In confirmation of the above, we will conduct a brief review of Russian legislation on regional referendums. The general scheme of regulation of referendums in Russia is the existence of a framework federal law that fixes the conceptual apparatus, the status of election commissions, the basic principles of electoral law, as well as special laws on referendums of various levels, fixing on the basis of a framework law a specific referendum procedure, as well as issues that can be submitted to a referendum. Thus, the framework law is the Federal Law "On Basic guarantees of Electoral Rights and the Right to Participate in a referendum of Citizens of the Russian Federation" dated 12.06.2002 No. 67-FZ, which establishes the concept of a referendum, which means a form of direct expression of the will of citizens of the Russian Federation on the most important issues of state and local significance for the purpose of decision-making carried out by voting of citizens Of the Russian Federation, who have the right to participate in the referendum. This concept allows us to recognize that, being in any case an important issue of national importance, the law can be adopted by voting of citizens. The law also regulates the requirements for issues that can be put to a referendum in the region. Firstly, the law assumes that regions can only resolve issues that are under the jurisdiction of a subject of the Russian Federation or under the joint jurisdiction of the Russian Federation and the subjects of the Russian Federation, if these issues are not regulated by the Constitution of the Russian Federation, federal law. This is the second attempt by the legislator to limit possible issues of a regional referendum to the federal component. The previous version of the law left subjects only matters of their own jurisdiction (Federal Law No. 124-FZ of September 19, 1997 "On Basic guarantees of electoral rights and the right to participate in a Referendum of citizens of the Russian Federation" (expired)), however, after the decision of the Constitutional Court (Resolution of the Constitutional Court of the Russian Federation of 10.06.1998 N 17-P "In the case of checking the constitutionality of the provisions of paragraph 6 of Article 4, subparagraph "a" of paragraph 3 and paragraph 4 of Article 13, paragraph 3 of Article 19 and paragraph 2 of Article 58 of the Federal Law of September 19, 1997 "On Basic guarantees of Electoral rights and the right to participate in a Referendum of Citizens of the Russian Federation"), the federal legislator revised his position.
The literature ambiguously assesses the modern approach to the establishment of the subject of the referendum, so, some believe that the sovereign will of the people gives the voters a reason to decide for themselves which issues they consider important for consideration, others believe that the legislator should clearly establish a list of issues, the solution of which is possible only in a referendum [16], the legislator proceeds from the principle of "what is not prohibited is allowed", establishing a list of issues that cannot be submitted to a referendum of the subject. Among them are questions about the early termination or extension of the term of office of state authorities of a constituent entity of the Russian Federation, local self-government bodies, about the suspension of the exercise of their powers, as well as about the holding of early elections to state authorities of a constituent entity of the Russian Federation, local self-government bodies or about the postponement of these elections; about the personal composition of state authorities of a constituent entity of the Russian Federation On the election of deputies and officials, on the approval, appointment and dismissal of officials, as well as on giving consent to their appointment and dismissal from office; on the adoption or amendment of the relevant budget, execution and modification of financial obligations of the subject of the Russian Federation, municipal formation; on the adoption of emergency and urgent measures to ensure the health and safety of the population. Without going into a discussion about the content of the questions submitted or unbearable for a regional referendum, let's turn to the legislative consolidation of the form of the questions asked. The legislator does not directly answer this question, but part 6 of Article 73 of the said law establishes that if a normative legal act is adopted at a referendum of a subject of the Russian Federation, a local referendum, it may be amended in accordance with the procedure established by the said normative legal act. If this procedure is not established, changes may also be made in the manner prescribed for making changes to the relevant regulatory act, but not earlier than five years from the date of adoption of the relevant decision at a referendum. Thus, the possibility of rulemaking in a referendum is obvious. Direct regulation, as already noted above, is carried out by the laws of the constituent entities of the Russian Federation on their referendums. However, it should be noted that most regional acts on this topic copy the provisions of the federal law, also without directly addressing the issue of the possibility of adopting the laws of the subject in a referendum [see, for example, the Law of the Vologda Region of July 06, 2006 N 1467-OZ "On the referendum of the Vologda Region". The practice of holding referendums of the subjects of the Russian Federation According to official data of the Central Election Commission, from the beginning of 1993 to the present, 14 referendums of subjects have been held in Russia, the vast majority of which (11) are mandatory referendums included in the procedure for the formation of new subjects of the Russian Federation in accordance with the law (Federal Constitutional Law No. 6-FKZ of 17.12.2001 (ed. of 31.10.2005) "On the procedure for admission to the Russian Federation and the formation of a new subject of the Russian Federation in its composition"). The remaining three referendums held in Chechnya, Tyva and the Volgograd Region are of interest for this study. Each of these referendums was aimed at changing the current constitutional or current legislation. Thus, on December 2, 2007, a referendum was held in the Chechen Republic to amend and revise certain provisions of the Constitution of the Chechen Republic and invalidate the Law of the Chechen Republic "On Elections to the Parliament of the Chechen Republic", on April 11, 2010, a referendum of the Republic of Tyva was held on the question: "Do you agree to amend the Constitution of the Republic of Tyva by adopting the attached draft of the Constitutional Law of the Republic of Tyva "On Amendments to the Constitution of the Republic of Tyva" (Electronic resource: http://www.vybory.izbirkom.ru/region/izbirkom ). However, it should be noted that such activity to change the constitutional legislation of the republics proceeds from the special procedure provided by these regions for changing their constitutions. On March 18, 2018, a referendum was held in the Volgograd Region, where participants had to answer the following question: 1. Do you consider it necessary for the Volgograd Regional Duma to submit to the State Duma of the Federal Assembly of the Russian Federation a draft federal law "On Amendments to Article 5 of the Federal Law "On the Calculation of Time", providing for the transition of the Volgograd Region from the 2nd time zone (Moscow time, UTC +3) to the 3rd hour zone (Moscow time +1, Moscow time plus 1 hour, UTC+4)? [22] This referendum is unique as an example of the "participation" of voters of the Volgograd region in the federal legislative process. Advantages and disadvantages of the referendum legislative process in the regions Like any other legal phenomenon, the adoption of laws at a referendum of a constituent entity of the Federation has its advantages and disadvantages. The key advantage of the refrendum order is the opportunity to show popular legislative initiative in the absence of such in the classical regional legislative process. The People's Initiative is not a new issue for the Russian Federation and, in a certain sense, a sore one. The Russian Constitution did not provide for the possibility of a people's initiative at the federal level, as did most regional charters and constitutions. But even in those regions where citizens have such an opportunity, the practice of its implementation is minimal.
There are several reasons for the low activity of the population: the complexity of the legislative procedure, namely, the use of a draft law by the regions as a form of legislative initiative, rather than a legislative proposal more acceptable to such unprofessional participants in the process; a complex delineation of issues of conduct between the Federation and its subjects, respectively, a limited scope for legal regulation; a low level of legal culture, legal nihilism, still peculiar to Russian society. In such circumstances, the referendum procedure can become an alternative to a more complex parliamentary process. We should agree with V. V. Maklakov, who noted that the institutions of direct democracy are able to complement the representative form of government. At the same time, the importance of the parliament may increase, for example, in the case of using the people's initiative [15]. Moreover, referendums on the abolition of acts of parliament (as you know, the abolition of laws is also a kind of legislative process), can be a kind of form of popular control over decisions taken by people's deputies. The disadvantage of the process under consideration is its direct dependence on the alignment of political forces (although this feature is inherent in the parliamentary process, but to a lesser extent). The referendum procedure, carried out without prior discussion of the bill in parliament, which provides only for voting, does not allow political forces to find a compromise on a specific law by amending it. Accordingly, despite the genuine democratic nature of the procedure, it is in no way able to take into account the opinion of the minority. In addition, the so-called "dirty electoral technologies" can be used in the referendum, as well as in other electoral procedures. To achieve success in the referendum, they also resort to the technical features of this procedure: the necessary conditions for voting are created in advance, taking into account the time factor, etc. When posing a question, a blocking technique is used when one question implies a second one or when two questions are interconnected in such a way that the subject of the vote loses clarity. The questions themselves are often complex. For example, in Italy in 1981, a vote on several laws – on the repeal of the law on abortion ("popular veto"), proposed by the radical party, contained 420 words [15]. Conclusions Summing up, it should be noted that the very idea of implementing the legislative process at the regional level through a referendum does not contradict the current legal regulation and does not require its direct consolidation. At the same time, there is practically no practice of adopting, changing or repealing laws through a referendum. The referendum legislative process, when actively used, can increase the confidence of citizens in the state power, will allow voters to really influence lawmaking. When using this institution as a supplement to the parliamentary legislative process, it is possible to improve the quality of legislation, and as a result, citizens recognize the value of the right created with their participation. The institution of a referendum, used as a real form of democracy, will contribute to improving the quality of Russian civil society, which in turn is a sign of the rule of law, which the Russian Federation seeks to form.
References
1. Komarova V.V. The mechanism of direct democracy in modern Russia : [Electronic resource] : (system and procedures) / V. V. Komarova.-Moscow : Direct-Media, 2014.-559 p.
2. Vorobyeva E. I. Institute of Referendum in Russia: problems of implementation // Development of social sciences by Russian students, 2017, pp. 94-100.
3. Kuryachaya M.M. Referendum as a socio-legal institution: evaluation of effectiveness// Problems of increasing the efficiency of state power and management in modern Russia. Collection of abstracts of reports and reports of scientific and practical conf. Issue 3. Rostov-n/D., 1998, pp. 146-152.
4. Tolstik V.A. Trusov N.A. The referendum in Russia: fundamentals, experience, criticism // Bulletin of the Nizhny Novgorod Academy of the Ministry of Internal Affairs of Russia, 2013, No. 24, pp. 9-13.
5. Zhanuzakova L. T. On the issue of improving legislation on the referendum // Bulletin of the Institute of Legislation of the Republic of Kazakhstan, 2018, No. 1 (50), pp. 20-26.
6. Sintsov G.V. Referendum of the subject of the Russian Federation: trends and contradictions // Izvestiya Penza State Pedagogical University named after V.G. Belinsky, 2007, No. 3 (7), pp.63-69.
7. Senyakin I. N. Lawmaking and lawmaking / Theory of State and law. Ed. Matuzova N. I. and Malko A.V. Saratov. 1997. 189 p
.
8. Beketova S.M. Legislative process in the Russian Federation / educational and methodical manual-Voronezh, VSU Publishing House, 2005-256 p
.
9. Bulakov O.N. Parliamentary law of the Russian Federation-Rostov-on-Don, Phoenix, 2004 - 736 p
.
10. Vasilyeva T.A. How to write a law-Moscow: Yurayt Publishing House, 2012-148 p.
11. Legislative process. The concept. Institutes. Stages: Scientific and practical manual / Ed. by D.yu.n., prof. R.F. Vasiliev-M.: Jurisprudence, 2000 - 320 p.
12. Kalugina T.V. Legislative process in the subjects of the Russian Federation: general and special // Constitutional and Municipal Law, 2010, No. 6, pp. 55-60.
13. Krasheninnikov P.V. Federal legislative process.-M.: Statute, 2008 - 184 p
.
14. Piskunova E.A. Legislative process in the subjects of the Russian Federation: monograph / E.A. Piskunova. - M.: Publishing house "Jurisprudence", 2017. - 160 p.
15. Maklakov V.V. Referendum in foreign countries: Textbook / RAS. INION. The Center of social. scientific.-inform. research; Department of Jurisprudence; Ed. Alferova E.V. - M., 2014. - 128 p– - (Ser.: Jurisprudence).
16. Ovchinnikov V.A. , Sokolov E.P. Discussion on the issue of the referendum of the subject of the Russian Federation // Managerial consulting, actual problems of state and municipal management, 2009, No. 2. pp. 114-125.
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A REVIEW of an article on the topic "The referendum legislative process of the subjects of the Russian Federation". The subject of the study. The article proposed for review is devoted to topical issues of the legislative process in the subjects of the Russian Federation through a referendum. The author has chosen a special subject of research: the proposed issues are examined from the point of view of constitutional and electoral law, while the author notes that "... Russian legislation provides for an even more democratic way of passing laws – holding a referendum." The study mainly examines the legislation of the Russian Federation and regulatory legal acts of the subjects of the Russian Federation (although not noted in the bibliography): "... The general scheme of regulating referendums in Russia is the presence of a framework federal law", "Direct regulation, as already noted above, is carried out by the laws of the subjects of the Russian Federation on their referendums" and practice related to the purpose research. A certain amount of scientific literature on the stated problems is also studied and summarized. It is not at all clear why there is no reference to the dissertation of E. A. Kholodilova (2005), the scientific literature of other scientists (Petukhova N.V., Ishekova K.A. – 2010). Probably, as the author believes, it does not deserve attention. At the same time, the author notes, "As for the degree of study of the topic, it does not seem sufficient. Most of the studies are devoted either to the classical legislative process at the federal and regional levels, or to the procedure of federal or regional referendums." Research methodology. The purpose of the study is determined by the title and content of the work "Consideration of the referendum as an alternative legislative mechanism of the Russian regions and was not carried out at all." It can be designated as the consideration and resolution of certain problematic aspects related to the above-mentioned issues and the use of certain experience (which is also present in the article). Based on the set goals and objectives, the author has chosen a certain methodological basis for the study. In particular, the author uses a set of general scientific, special legal methods of cognition. In particular, the methods of analysis and synthesis made it possible to summarize and separate the conclusions of various approaches to the proposed topic, as well as draw conclusions from the materials of opponents. The most important role was played by special legal methods. In particular, the author used a formal legal method, which allowed for the analysis and interpretation of the norms of the current legislation of the Russian Federation and the subjects of the Russian Federation. In particular, the following conclusions are drawn: "Russian legislation lapidarily assumes the possibility of passing laws by referendum bypassing the parliamentary legislative process, this statement is true for both the federal and regional levels", "... it should be noted that most regional acts on this topic copy the provisions of federal law, also without directly addressing the issue of the possibility of the adoption of the laws of the subject in a referendum ..." and others. At the same time, in the context of the purpose of the study, the formal legal method was applied in conjunction with the comparative legal method, especially since the author cited many references to laws ("draft constitutional law of the Republic of Tyva "On Amendments to the Constitution of the Republic of Tyva" (Electronic resource: http://www.vybory.izbirkom.ru/region/izbirkom ", but the link does not correspond to reality) and opposing scientists. It is important to note here that the author declares some aspects of the problem with citing research. Thus, the methodology chosen by the author is fully adequate to the purpose of the article, allows you to study many aspects of the topic. The relevance of the stated issues is beyond doubt. This topic is one of the most important in the world and in Russia, from a legal point of view, the work proposed by the author can be considered relevant, he notes that "The permanent need to democratize the public administration system on the one hand, and increase the activity of civil society on the other, makes this topic relevant in modern Russian realities. Moreover, the use of the referendum to resolve acute social issues, such as the fight against the coronavirus pandemic, the modernization of the education system and others that cause active discussion in society, could reduce social tensions." The author also provides recommendations and suggestions. Thus, scientific research in the proposed field is only to be welcomed. Scientific novelty. The scientific novelty of the proposed article is beyond doubt. It is expressed in the specific scientific conclusions of the author. Among them, for example, are the following: "The referendum legislative process, when actively used, is able to increase citizens' confidence in government, will allow voters to really influence lawmaking. When using this institution as an addition to the parliamentary legislative process, it is possible to improve the quality of legislation, and as a result, citizens recognize the value of the law created with their participation." As can be seen, these and other "theoretical" conclusions can be used in further scientific research. Thus, the materials of the article as presented may be of some interest to the scientific community in terms of contribution to the development of science. Style, structure, content. The subject of the article corresponds to the specialization of the journal "Legal Studies", as it is devoted to topical issues of the legislative process in the subjects of the Russian Federation by referendum. The article shows that this question has practically not been raised in the literature. The content of the article corresponds to the title, since the author considered the stated problems and achieved the goal of his research. The quality of the presentation of the study and its results should be recognized as improved. The subject, objectives, methodology, and results of legal research directly follow from the text of the article. The design of the work generally meets the requirements for this kind of work. No significant violations of these requirements were found. Bibliography. The quality of the literature used should be highly appreciated. The author actively uses the literature presented by the authors, but some studies are missing. I would like to note the absence of the NPA in the bibliography (but not in the article). Thus, the works of the above authors correspond to the research topic, have a sign of sufficiency, and contribute to the disclosure of certain aspects of the topic. Appeal to opponents. The author conducted a serious analysis of the current state of the problem under study. The author describes different points of view on the problem, tries to argue a more correct position in his opinion, and offers solutions to individual problems. Conclusions, the interest of the readership. The conclusions are logical, specific, in some cases general, they are obtained using a generally recognized methodology. The article in this form may be of interest to the readership in terms of the systematic positions of the author in relation to the issues stated in the article. Based on the above, summing up all the positive and negative sides of the article, I recommend "publishing".
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