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 piskunyara@inbox.ru Other publications by this author

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.