Transformation of the Institution of Public power in modern Russia: advantages and disadvantages

Salikov Marat Sabiryanovich ORCID: 0000-0003-2461-9484 Doctor of Law Professor, Department of Constitutional Law, Ural State Law University named after V. F. Yakovlev 54 Kolmogorova str., office 314, Sverdlovsk region, Yekaterinburg, 620034, Russia salikov.marat@list.ru

As you know, the amendments made to the Constitution of the Russian Federation in 2020 (the Law of the Russian Federation on the Amendment to the Constitution of the Russian Federation dated 03/14/2020 No. 1-FKZ "On Improving the Regulation of Certain Issues of the organization and functioning of public Authority") included the term "public authority" in its text. Thus, in Article 71 of the Basic Law, which contains subjects of federal jurisdiction, such a subject as "organization of public authority" appeared. And in the chapter "Local self–government" there appeared a construction - a unified system of public authority. According to Part 3 of Article 132 of the Basic Law, "local self-government bodies and public authorities are part of a unified system of public authority in the Russian Federation and cooperate to most effectively solve problems in the interests of the population living in the relevant territory." In addition, the unity of the system of public authority and the interaction of its constituent bodies is stated in Part 2 of Article 80 of the Constitution of the Russian Federation. The Constitutional Court of the Russian Federation, in its Opinion No. 1-Z dated 03/16/20, noted that "the principle of a unified system of public power, although it did not find literal consolidation in Chapter 1 of the Constitution of the Russian Federation, at the same time implicitly follows" from many constitutional provisions.

Many statesmen, in particular, V. E. Chirkin, S. A. Avakian, G. N. Chebotarev, A. A. Yugov, and others, have been engaged in the study of the phenomenon of public power in the doctrine. At the same time, due to the "constitutionalization" of this institution, i.e., its consolidation in the text of the Constitution and the emergence of a new construction "unified system of public authority", there was a need for a doctrinal justification of its structure. Let's consider some of the approaches available in the science of constitutional law.

The doctrine has different approaches to what to include in the composition of public authority. E. N. Markova identifies three such approaches: 1. Public (state and municipal) power as a form of public power. 2. Public power as a form of public power. 3. Public and public authorities as separate forms of democracy ^{[1, pp. 26-28]}.

In particular, according to some authors, since the bodies of state power and local self-government are part of a single system, and do not form this system, then something else equivalent may enter this system. G. N. Chebotarev believes that public power may well be such an equivalent element [2. pp. 9-17]. According to A. N. Chertkov, "the Constitution does not contain a concentrated reflection of the third subsystem of public power – the power of civil society, or public power. ... After all, public power is not just the power of the state plus local power. This is the power of society, exercised in its interests, under its control and at its request" ^[3]. He believes that the exclusion of public power from the system of public power undermines the very essence of public power, based on the principles of democracy, belonging of power to the people ^{[4, pp. 19-23]}.

V.A. Lebedev, proposing to improve the legislation on the organization of public power, writes: "The law should also consolidate the system of public authority of the subject of the Russian Federation, which includes the public authority of the subject of the Russian Federation, the highest official of the subject of the Russian Federation, federal public authorities located on the territory of the subject of the Russian Federation, local governments, public associations of citizens," i.e. includes public associations in the system of public authority ^{[5, p. 43]}.

We believe that public power is a form of realization of a representative form of democracy. Otherwise, it would mean the merging or mixing of the state (ideally, the legal one) and society (ideally, the civil one). The inclusion of public power in the unified system of public power would contribute to the fact that the main element of the system – the state – would "crush" the currently rather weak element – civil society. In this regard, it is better to preserve public power in an independent capacity in order to promote its progressive evolution into a strong player capable not only of cooperating with the state on an equal basis, but also, if necessary, to resist it.

V. E. Chirkin wrote: "State power, as a social power, is not private, as is the case in the family, not corporate, as in an organization, but public. This is a government acting on behalf of the whole society" ^{[7, p. 81]}. He emphasized that public power includes only state and municipal power, but not public power ^{[7, pp. 116-117],[8, pp. 23-26]}. This is consistent with the provisions of Federal Law No. 414-FZ dated December 21, 2021 "On General Principles of the Organization of Public Power in the Subjects of the Russian Federation", which considers the unified system of public power as a set of bodies: state authorities, other state bodies, local governments, as well as the position of the Constitutional Court of the Russian Federation on the Udmurt case" (Resolution No. 1-P of January 24, 1997), where the Court included only state power and local self-government in the category of "public authority".

Describing the public-legal nature of representative democracy, P. A. Astafichev notes that "people's representation is the redirection of the power of the people to the competence of elected bodies endowed with powers and functions of a representative nature. In the system of public power, such subjects are not only deputies and the collegial representative bodies formed by them ..., but also elected officials ..." ^{[9, p. 119]}.

S. A. Avakian, analyzing the institution of representation, writes: "Public power is a multifaceted concept, especially if it is associated with both the state and civil society. ... to a certain extent, people should and can personally participate in public power processes" ^{[10, pp. 47, 50]}.

A. A. Yugov adheres to the original position. Taking the forms of democracy established by the Basic Law as a criterion, he divides the unified system of public power into two subsystems: a subsystem of public authorities (federal, regional and municipal levels) and a subsystem of public authorities. The latter, in his opinion, includes bodies of public state power; bodies of public municipal power; bodies of public public (corporate) power; bodies of international legal (interstate) power ^{[11, pp. 4-5]}.

Taking into account our position regarding the non-inclusion of public power into the public, we will consider some aspects of the transformation of its implementation at the international, federal, state, regional, state and municipal levels.

Considering the system of public authority in the doctrine, as a rule, the international level is singled out. Speaking about it, however, it is necessary to take into account the nuances associated with what specific obligations the state undertakes. In the case when certain international treaties meet our interests, the state, of course, undertakes to function within the framework and according to the procedures established by such treaties, to recognize the jurisdiction of supranational bodies (for example, the Eurasian Economic Commission of the EAEU, the EAEU Court, the CSTO Collective Security Council, the CSTO Permanent Council, the Council of Heads of State of the CIS, the Economic Court CIS, etc.).

At the same time, the State reserves the right to determine for itself the possibility of executing international treaties and, accordingly, the limits of jurisdiction of supranational bodies in certain cases.

Thus, in 2015, the Constitutional Court of the Russian Federation acquired the right to consider cases on the possibility of executing decisions of the interstate body for the protection of human rights and freedoms. There are examples of the Court's application of this authority (Resolutions No. 12-P dated April 19, 2016; No. 1-P dated 01/19/2017). However, as a result of the 2020 constitutional reform, this power of the Court was replaced by two others, which expanded its capabilities to ensure national constitutional identity. Now the Constitutional Court of the Russian Federation resolves the issue of the possibility of executing decisions of interstate bodies adopted on the basis of the provisions of international treaties of the Russian Federation in their interpretation contrary to the Constitution of the Russian Federation, as well as the possibility of executing a decision of a foreign or international (interstate) court, a foreign or international arbitration court (arbitration) imposing obligations on the Russian Federation, in if this decision contradicts the fundamentals of the public law and order of the Russian Federation. Thus, there is not just a change in the powers of the constitutional judicial control body. It is about protecting State sovereignty through the judiciary.

At the same time, the State has the right to decide (and decides) such issues, using other tools, namely, the withdrawal from international treaties of organizations that make politicized and biased decisions against Russia that discriminate against its representatives in supranational bodies. The denunciations of a number of Council of Europe treaties are striking examples. According to Federal Law No. 43-FZ of February 28, 2023 "On the Termination of International Treaties of the Council of Europe with respect to the Russian Federation", the following international treaties are considered to have ceased to apply to the Russian Federation in connection with the termination of Russia's membership in the Council of Europe: the Charter of the Council of Europe of May 5, 1949; the General Agreement on the Privileges and Immunities of the Council The European Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950; the European Charter of Local Self-Government of October 15, 1985; the European Convention on the Suppression of Terrorism of January 27, 1977; the European Social Charter (revised) of May 3, 1996, etc.

Considering the issues of transformation of public power at the federal level, it is possible to analyze the change in the powers of the head of state, the Government and the chambers of the Federal Assembly of the Russian Federation in connection with the adoption of amendments to the Basic Law. These changes are obvious and have already been the subject of research by legal scholars. We would like to draw attention to one important aspect, in our opinion, related to the implementation of one function of the President of the Russian Federation. So, according to the Constitution of 1993. The President of the Russian Federation "ensures the coordinated functioning and interaction of state authorities" (Article 80). At the same time, Article 12 does not include local self-government bodies in the system of state authorities. After the amendments to the Constitution in 2020 The President of the Russian Federation "ensures the coordinated functioning and interaction of bodies that are part of a single system of public authority." Article 12 has not changed, since amendments to Chapter 1 of the Constitution cannot be made. As can be seen, there has been an expansion of the scope of powers of the head of state by including other bodies included in the unified system of public authorities. The question arises, which organs are included there. The answer, at first glance, is obvious - public authorities and local governments. This is exactly what is stated in Article 132 of the Constitution – "local self-government bodies and state authorities are part of a single system of public authority in the Russian Federation ...". However, Federal Laws No. 394-FZ dated December 8, 2020 "On the State Council of the Russian Federation" and "On General Principles of the Organization of Public Power in the Subjects of the Russian Federation" dated December 21, 2021 No. 414-FZ, adopted after amendments to the Basic Law, contain a slightly different list of bodies included in this system, and namely, "federal state authorities, state authorities of the subjects of the Russian Federation, other state bodies, local self–government bodies." Other State bodies that are not specified in Article 132 of the Constitution also appear here. Moreover, it does not follow from this wording that we are talking only about other state bodies at the federal level. Consequently, other state bodies of the subjects of the Russian Federation are included here. As noted above, these laws were adopted after the Constitution was amended in 2020 by the Basic Law. The contradiction is obvious, federal laws, in fact, supplemented the constitutional text, and, in fact, replaced the constitutional legislator, who approved the presented version during the All-Russian vote. We believe that in the event of a change in the Constitution, the federal legislator should bring legislation into line with the amended amendments, as well as avoid the adoption of laws that contradict the Basic Law. Otherwise, the will of the sovereign, which according to the Constitution is the people, is leveled. If it is possible to "supplement" the Constitution so easily, then in principle it was possible to do without voting, but simply adopt a number of laws, including those that change the constitutional text.

The adoption of the Federal Law "On the General Principles of the Organization of Public Power in the Subjects of the Russian Federation" has quite seriously transformed the institution of public power not only at the federal, but also at the regional and municipal levels. At the same time, the latter two became even more dependent on the former ^{[12, pp. 96-104]}.

The judicial authorities, being authorities, are undoubtedly included in the unified system of public authority. However, in connection with the constitutional reform, one type of court was, on the contrary, "turned off", and not only from the system. We are talking about the constitutional (statutory) courts of the subjects of the Russian Federation. Here, in fact, there was not a transformation, but the liquidation of an entire class of judicial bodies. As you know, in the development of amendments to the Constitution of the Russian Federation introduced in 2020, Federal Constitutional Law No. 7-FKZ dated December 8, 2020 "On Amendments to Certain Federal Constitutional Laws" was adopted, according to which all constitutional (and statutory) courts of the subjects of the Russian Federation will be abolished by January 1, 2023. As V.A. Kryazhkov notes, the abolition of constitutional (statutory) courts occurred quite unexpectedly and without any justification ^{[13, p. 68]}. The liquidation of the existing constitutional (statutory) courts of the subjects of the Russian Federation, in our opinion, affects not only specific people (judges of these courts), but also the actual state institutions of the subjects of the Federation, and, consequently, the principle of the federal structure and, as a result, the principle of the rule of law is violated. According to Part 2 of Article 11 of the Constitution of the Russian Federation, state power in the subjects of the Russian Federation is exercised by the state authorities formed by them. Constitutional (statutory) courts are thus regional authorities. Their elimination, without taking into account the opinion of the subjects, by a decision of the federal government alone, indicates a serious corrosion of the federal structure of the country. Such issues, of course, should have been resolved by the subjects themselves, who created these courts ^{[14, pp. 341-349]}. The constitutional (statutory) councils, which "allowed" the regions to create a federal center instead of the specified courts, are not public authorities. They function under legislative bodies and, therefore, are not independent. Although, as we noted earlier, if there is political will on the part of the regional authorities, these councils could even fit into the system of bodies of the subjects. To do this, the subjects of the Russian Federation must be given the right to make final decisions that are binding on all bodies and officials ^{[15, pp. 4-11]}.

Analyzing the municipal level of public authority, in addition to the above, one can pay attention to those aspects that are reflected in Articles 131 and 132 in their relation to Article 12 of the Constitution.

According to Part 11 of Article 131, "State authorities may participate in the formation of local self-government bodies, the appointment and dismissal of local government officials in accordance with the procedure and cases established by federal law." Given that this norm does not specify which level of government authorities have the right to use these powers, it can be concluded that these are not only (and maybe not so much) regional, which at least was relatively logical, since they are closer to the local level), but also federal. Moreover, the procedure and cases for the implementation of such powers will be established precisely by federal, and not by regional law.

In accordance with Part 3 of Article 131 of the Constitution, "the specifics of the exercise of public power in the territories of cities of federal significance, administrative centers (capitals) of subjects of the Russian Federation and other territories may be established by federal law." There are also questions here. Why did federal cities "appear" here? This article is part of the chapter "Local self-government", and cities of federal significance, as you know, are subjects of the federation. In this regard, it would be logical to include a "Federal structure" in the chapter, although the very fact of the "invasion" of the federal center in the exercise of power in one of the types of subjects is also puzzling, since it puts them in an unequal position, whereas the Constitution in Article 5 guarantees equality of all types of subjects. It is also not clear why the administrative centers (capitals) of the subjects of the Russian Federation are distinguished from the total mass of municipalities? Finally, the specifics of the exercise of public power, it says further, can be established in other territories. And what are these other territories? Other subjects of the Russian Federation, other municipalities? If so, why then allocate the territories mentioned above, if the federal center can, in principle, establish such features at any time? It is much easier to consolidate this right to all types of territories. However, it is not clear how this is consistent with federalism^[16] and the "independence" of local self-government.

Meanwhile, the Constitutional Court of the Russian Federation, in its Opinion dated 03/16/2020, noted that the amendments to Chapter 8 of the Constitution "do not imply a distortion of the constitutional nature of local self-government as the level of public authority closest to the population." They fully comply with Article 12 of the Basic Law and other norms of its Chapters 1 and 2. Constitutional innovations "do not deny the independence of local self-government within its powers and do not indicate the entry of local self-government bodies into the system of state authorities."

It follows from the above that the transformation of the institution of public authority, carried out by amending the Constitution in 2020, as well as by adopting new and changing existing acts, led to the following consequences. First, a new system of public authorities was introduced. Secondly, two pre-existing systems (public authorities and local governments) were incorporated into the new one. Thirdly, certain rules were adopted for this new system, which extended to the two "old" systems. Fourth, considering the above, the "old" systems, in fact, transformed into subsystems of the new one (although Article 12 still uses the term "system") and found themselves in a subordinate state, since the principles and rules of the new one became dominant. Fifthly, the weakest link in this "configuration" has become local self-government, thus turning into the lowest level of state power, which cannot but cause regret. In this regard, in our opinion, the federal center needs to use extremely carefully (or better to refrain from doing so) the tools it has developed to regulate those areas of regional and local competence that historically belonged to these levels of public authority, in order not to emasculate the essence and content of the constitutional principles of federalism and local self-government, assuming a certain independence in making decisions attributed to their jurisdiction. Otherwise, the increasing trend of centralization of public power is capable of completely disavowing these principles, and the federal structure will remain only "on paper", as it already was in the Soviet period.

The above-mentioned individual, in our opinion, the most sensitive aspects of the transformation of the institution of public authority, of course, will require further analysis over time and with the development of its "infrastructure", which includes not only the actual regulatory instruments, but also political, economic, social and other parameters. In addition, when analyzing the activities of public authorities, it is impossible not to take into account the impact of the challenges of globalization, digital technologies, artificial intelligence and other novelties of a modern rapidly developing society. Public authorities of any level cannot but affect in their activities such areas as human and civil rights and freedoms, including the impact of digital technologies on the content and mechanisms of their implementation and protection; institutions of direct democracy, including in the form of remote electronic voting; receiving services through portals of state and municipal services, etc. ^{[17, pp. 88-101],[18, pp. 27-39],[19, pp. 134-139],[20, pp. 193-203]}. Many digital technologies have already been successfully implemented and applied in various fields: "electronic justice", digitalization of the legislative process, "smart city", etc. In this regard, it is difficult not to agree with I. A. Kravets, who writes: "The information and algorithmic society creates new conditions and opportunities for the realization of rights, legal communication and political participation; at the same time, a society with the widespread use of information and digital technologies and the introduction of elements of algorithmic management generates new threats related to the problem of genuine digital identity, manipulation of the results of digital voting, cases of anonymous use of digital networks, etc." ^{[21, pp. 41-56]}.

Currently, the process of rapid development of artificial intelligence (AI) is underway, which also affects the institution of public authority, since AI technologies are also applicable in the activities of relevant authorities. Ivan Oseledets, Director General of the AI Institute of Artificial Intelligence, noted: "By 2023, AI has become a full-fledged part of the life cycle of health, education and management systems, as well as urban and environmental initiatives. This indicates not only the obvious improvement in the quality of new artificial intelligence models and the possibilities for their practical application, but also the growing need for cooperation between industries" ^[22].

It is not surprising, but the use of AI in public administration systems is a global trend. For example, in Brazil, artificial intelligence is used to fight corruption, where it monitors officials' connections with state-contracted companies. In the UK, AI has identified and processed the delay of more than 30 thousand pensions. In the case of manual labor, this would require tens of thousands of man-hours. In South Korea, chatbots already automatically notify citizens about the government subsidies they receive ^[22]. Similar systems are beginning to be introduced in Russia. For example, with the help of companies and organizations that are members of the Alliance in the Field of Artificial Intelligence, in 2023, more than 500 implementations of AI solutions in the field of public administration, health and ecology took place in 67 regions. The leaders in the number of such implementations are the Moscow Region, Moscow, Tatarstan, Sakhalin. Experts note that it is on Sakhalin that the most comprehensive transformation of control systems based on AI solutions takes place ^[22].

At the same time, as I. A. Kravets rightly notes, "algorithmic management" (management based on algorithms) needs both legal regulation and guarantees of transparency for stakeholders (citizens, non-profit organizations, business entities), and the deliberative digital participation of citizens ^{[21, pp. 41-56]}.

Modern challenges in the above-mentioned and other forms are designed to facilitate to some extent the functioning of public authorities, increase the effectiveness of their activities so that it has a positive impact on the population - in meeting their requests, ensuring the realization of the rights, freedoms and legitimate interests of citizens, etc. At the same time, of course, it is necessary to strive to ensure that the entire system of public power is not transformed into a utilitarian unitary structure of linear subordination, but, on the contrary, is built and functions in accordance with the principles of federalism, local self-government and subsidiarity. The system will be functioning successfully only when the issues that can (and should) be resolved to be resolved at the lowest possible territorial level – local and regional – transferred to the relevant public authorities (municipalities and subjects of the Russian Federation). Federal agencies are called upon to solve global problems that are important throughout the country.

The transformation of the institution of public authority in modern Russia shows that there is a demand for reforming the systems of state and local government bodies that existed before 2020, taking into account the realities and challenges of today. It seems that reform is necessary and even inevitable in a dynamically changing situation both inside and outside the country. In addition to the actual political, economic and social aspects, it is necessary to take into account such new challenges as globalization, digitalization, Internet technologies, artificial intelligence, etc. The main thing here is to clearly represent the vector, goals and objectives of such reform in order not to lose the positive groundwork that was obtained during the 30-year constitutional development (after the adoption The Constitution of the Russian Federation of 1993) of the state and society.