Direct democracy “ad hoc”: on the question of extraordinary forms of direct people’s rule

Ubasev Viktor Vladimirovich ORCID: 0000-0001-7373-2753 Postgraduate student, Department of Constitutional Law, Russian Academy of National Economy and Public Administration under the President of the Russian Federation 119606, Russia, Moscow, Moscow, Vernadsky Avenue, 84 ubasev.v@mail.ru

Over the years, the theory of law has developed well-established definitions of many legal categories, including the concept of "rule of law", which, it would seem, undoubtedly has a sign of its repeated application ^{[1, p. 143]} or, as other researchers say, regulation of standard public relations ^{[2, p. 66]}. But despite the well-established ideas about such basic legal phenomena that exist in Russian legal science, practice opens up new horizons for scientific research every day.

Thus, the multiplicity of application, as a sign of any legal norm, becomes irrelevant in practice in cases where the provisions of an adopted law or other normative legal act (NPA) are initially designed for one-time use. Such norms and regulations, applied once, are referred to by the term "ad hoc legislation" ^{[3, pp. 181-182]}. The most interesting, in the context of this study, are the norms of laws and subordinate normative legal acts regulating the issues of direct democratic procedures, in particular those through which the Constitution of the Russian Federation (hereinafter referred to as the Constitution) was adopted in the recent past, as well as an amendment to the Constitution in 2020.

The purpose of the study is to form criteria for attributing institutions of direct democracy to "ad hoc" legislation, that is, to those institutions of direct democracy that represent extraordinary forms of direct expression of the power of the people. In addition, it is planned to identify the advantages and disadvantages of using such institutions in comparison with similar "ordinary" forms of direct democracy.

To achieve the purpose of the study, it is necessary to analyze extraordinary forms of direct democracy in Russia, such as: the 1993 National Vote, which adopted the Constitution (hereinafter referred to as the National Vote) and the All–Russian vote on approving amendments to the Constitution of the Russian Federation in 2020 (hereinafter referred to as the All–Russian Vote), institutionalized by the Law of the Russian Federation on the Amendment to the Constitution RF dated 03/14/2020 No. 1-FKZ "On Improving the Regulation of Certain Issues of the Organization and Functioning of Public Authority" (hereinafter referred to as the Amendment Law) ^[1]. It is also necessary to show examples of those institutions of direct democracy that are similar to institutions that are unambiguously classified as "ad hoc" legislation, but have differences that do not allow them to be included in this group. Based on this comparison, the criteria that distinguish extraordinary institutions of direct democracy from others – those that are applied or can be applied repeatedly - will be identified.

The methodological basis of the research is formed, among other things, from general scientific methods: analysis, synthesis and comparison. The methods of legal sciences are also used: the method of comparative law and legal forecasting.

The research is based on an already existing theoretical basis. In particular, such sources are the works of T.Ya. Khabrieva, P.V. Krasheninnikov, A.A. Klishas, N.A. Bobrova, which explore the problems of direct democracy in general, as well as direct democratic procedures of an extraordinary nature, including those implemented within the framework of constitutional reforms. An important part of the theoretical basis of the study is the work of E.A. Lukyanova, V.S. Byalt and S.Y. Chimarov, devoted to the problems of interaction between government and society, including the phenomenon of norms and institutions"ad hoc", the essence of legal norms and their features. Although both of these scientific directions have sufficient elaboration within the framework of the above studies, the question of the phenomenon of legislation existing in practice"ad hoc", in relation to the normative consolidation of institutions of direct democracy, has not been widely covered in science before. Consideration of this issue from the point of view of the problems of legal consolidation of extraordinary forms of direct democracy, often used in carrying out constitutional reforms, is relevant for the science of constitutional law in Russia, this research topic is not yet widespread enough.

The amendment of the Constitution itself ensures the evolution of constitutional regulation in line with the basic constitutional principles ^[4]. However, it is important to take into account that the amendment process is regulated in Chapter IX of the Constitution and does not involve any electoral procedures, as well as the adoption of relevant regulatory legal acts regulating them. Of course, this thesis does not apply to the process of adopting a new Constitution in 1993, when there was no regulatory framework for such a procedure at all and it actually had to be created from scratch. Decree of the President of the Russian Federation No. 1633 of 10/15/1993 (hereinafter – Decree No. 1633) ^[2] was of an extraordinary nature and determined an equally extraordinary vote as an important element of the procedure for adopting the Constitution.

According to the developers, Decree No. 1633 was initially adopted as an "ad hoc" regulatory legal act, being designed for a single application. According to its purpose, the document became the basis for the adoption of a normative legal act of the highest legal force – the Constitution of the Russian Federation. The popular adoption of the Constitution, which performs, among other things, a constituent function ^[5], was procedurally mediated by the issuance of Decree No. 1633.

This example shows that normative legal acts containing norms of constitutional law can be adopted "in case", and their norms can be deliberately designed for one-time use. That is, such norms of law are not a "reference" model, but represent an exception to the general rule developed by the domestic science of the theory of state and law. The peculiar uniqueness of Decree No. 1633 lies in the fact that the norms in question actually predetermined the formation of a new regulatory framework of domestic legal regulation, since it was through their application that the Constitution of the Russian Federation was eventually adopted, which became the basis for further building the legal system of modern Russia.

Another striking example of a regulatory legal act containing procedural provisions related to "ad hoc" norms is the Amendment Act. The most important procedural element of the ongoing constitutional reform provided for by the Amendment Law was the All-Russian vote, which is a unique, special form of direct democracy, not previously provided for by the legislation of the Russian Federation ^{[6, p. 220]}.

Speaking about the prerequisites for the creation of the legal mechanism under consideration, N.A. Bobrova points out that "it was impossible to do without holding an All-Russian vote because it was obvious that the amendments to Chapters 1, 2 and 9 of the Constitution were actually invaded with the formal untouchability of their text, since these chapters are "untouchable" due to the absence of a Constitutional Assembly and the undesirability of a "real" referendum under the Referendum Law, which has stricter requirements for recognizing it as having taken place than the requirements for an all-Russian vote" ^{[7, p. 70]}. At the same time, it is important that the All-Russian vote is inherently an extremely close legal mechanism to both the federal referendum and the Popular Vote provided for by Decree No. 1633, although they both appear to be independent, extraordinary in nature forms of direct popular expression ^[8]. Speaking about such legal institutions, I.A. Starostina points out that in electoral practice other forms of voting can be designed and used, which are close in their characteristics to a referendum, but differ in name ^[9]. At the same time, we must not forget about the essential differences. For example, the quorum for decision–making, in the case of National and All-Russian voting, became a kind of "stumbling block" in the question of the possibility of holding a referendum, as a result of which decisions were made on the establishment of new institutional forms of direct democracy - both in 1993 and in 2020 ^{[10, 11]}. AndV. Ignatushko, for example, considers the emergence of such specific institutions of direct democracy as quite natural features of the development of the legal system of modern Russia ^[12]. This position seems quite logical and at the same time does not contradict any of the other points of view indicated, including it may exist both in the context of the objective need to create "special" institutions of direct democracy for equally special measures, which are constitutional reforms, and in the context of the opinion that their development was needed solely to circumvent The norms of the current legislation on the referendum are an element of the application of a significant administrative resource to the highest degree.

Similar examples are also found in the practice of foreign countries. A similar extraordinary form of direct de facto democracy turned out to be the constitutional referendum in Serbia, held in 2022. Despite the apparent universality of the named institution, the law on the referendum, formally designed for multiple applications, was adopted only on the eve of the constitutional reform, although its draft was prepared back in 2006 ^[13]. An important difference between the above-mentioned referendum in Serbia and other special procedures is its universal nature with regard to holding such events in the future, however, it is impossible to accurately predict whether this mechanism will be applied in the future. Thus, from the point of view of the "targeted" adoption of the law, it can be attributed to "ad hoc" legislation only with a significant degree of conditionality. If we take as a basis for such a restriction the criterion of mandatory normative indication of the one-time application of the norms of law, the referendum in Serbia cannot be classified in this category. In other foreign countries, priority is given to ordinary forms of direct democracy (referendums), which are often enshrined in the constitution itself and are in the most stable state ^{[14, p. 248]}.

The question remains open as to how it is necessary to differentiate such NPAs and legal norms when deciding on their attribution to ad hoc legislation. It seems that the main criterion should still be the orientation of the norms to their single or repeated application. That is, in the event that the law explicitly provides for the application of a norm or institution once – such norms and NPA relate to ad hoc legislation. If such a conclusion does not directly follow from the content of the NPA, the norm must be considered designed for repeated use, and therefore not related to the type in question. Since public relations often develop independently of the will of the legislator, to provide for the possibility of repeated application of the rule of law does not mean to ensure the existence of those public relations that such a norm should regulate. In this logic, repeated application of the norm, in principle, can neither be ensured nor predicted at the time of its development.

Returning to the Popular Vote, it must be said that in this case, too, its attribution to "ad hoc" institutions is not unambiguous. Despite the fact that Decree No. 1633 assumed a one-time holding of such a vote, the term itself is firmly entrenched in Chapter IX of the Constitution. Thus, according to part 3 of Article 135 of the Constitution, the draft of a new constitution is adopted by the Constitutional Assembly by two thirds of the total number of its members or submitted to a popular vote, and during a popular vote, the Constitution of the Russian Federation is considered adopted if more than half of the voters who took part in the vote voted for it, provided that more than half of the voters participated. Consequently, the name of such a form of direct democracy as Popular vote has been preserved in the current legislation. Moreover, given its constitutional consolidation in the "unchangeable" Chapter IX, this institution will definitely be applied when adopting the new constitution of the Russian Federation, when such a need arises. However, we still do not know what will be hidden behind this term and whether the new "popular vote" will be similar to the 1993 vote.

It can also be said unequivocally that a striking example of the "ad hoc" norms establishing extraordinary institutions of direct democracy are the provisions of the Amendment Law regulating the conduct of the All-Russian vote. And this conclusion directly follows from the provisions of the law itself, which regulated the process of holding the All-Russian vote in 2020. It is also important that the practice of holding such votes can be continued, but formally these are other institutions of direct democracy, even if their name becomes the same.

As for the advantages of extraordinary forms of direct democracy ("ad hoc" institutions), the main one is the adaptability of such norms. An established legal institution, such as a federal referendum, does not always fit the goals and objectives for which voting is necessary. Also, the use of "incorrect" procedures may lead to the failure to achieve the necessary results. For example, taking into account the opinion of the people in the case of ordinary democratic procedures may not be objective or voting will be difficult due to the low level of legal awareness of citizens of a particular state, and therefore the inability to obtain a quorum for voter turnout. When the institution of direct democracy is created for a specific task, for example, taking into account the opinion of the people on the issue of approving the ongoing constitutional reform, the most effective solution is to create such a "legislative foundation" for the procedural design of the reform, which would 100% respond to the challenges of the time and be able to withstand external factors affecting it at the moment. The effectiveness of such methods is evidenced, in particular, by the successful experience of constitutional reforms in Russia and Kazakhstan ^[15].

Of course, in the case of the establishment of new "extraordinary" democratic institutions, there is a risk of abuse and use of their features not for the benefit of the effectiveness of ongoing reforms and the most accurate consideration of the opinion of the people on certain issues, but in the selfish interests of government representatives, who at this moment fill certain public positions, whose powers include, among others, the organization ongoing reforms. However, these risks are negligible if the system of checks and balances works effectively in the state, and a significant set of important state powers is not concentrated in the hands of representatives of one political force.

Based on the results of the study, the following conclusions were formulated:

1. Institutions of direct democracy can be fixed in legislation on the principle of "ad hoc", that is, they represent extraordinary forms of direct democracy;

2. Such institutions, referred to as "ad hoc" legislation, are found in practice both in the Russian Federation and in some foreign countries, for example in Serbia;

3. the only objective criterion that allows you to attribute an institution or norm to the "ad hoc" norms is an indication of its one-time application in the NPA that these norms are fixed;

4. one or another norm cannot be attributed to the "ad hoc" norms only because the NPA fixing them was adopted "for a specific task" if this NPA allows the application of the fixed norms in the future;

5. Extraordinary forms of direct democracy are the most effective for conducting various types of voting, for example, within the framework of constitutional reforms, but their application may carry risks of abuse of state authority, which can be implemented in the process of law enforcement.

^[1] Collection of legislation of the Russian Federation. 2020. No. 11. Article 1416.

^[2] Collection of acts of the President and Government of the Russian Federation. 1993. No. 42. St. 3995.