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Number 4(8), autumn, 2003
Number 8 of the journal Kazan Federalist (in english)
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Interaction of the Federal Government with the Authorities of the Federal Subjects in Legislative Activity
 
 
 

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  • Aleksei Pavlushkin
The Federal Governments participation in the legislative process is one of its priorities. It should be mentioned that the number of government laws adopted by the Federal Assembly of the RF is growing constantly. For instance, during the Parliaments 2001 spring session, 34% of the Governments bills were adopted, while during the spring session of 2002 this number increased to 45%.

Aleksei Pavlushkin*

Interaction of the Federal Government with the Authorities of the Federal Subjects in Legislative Activity

The Federal Governments participation in the legislative process is one of its priorities. It should be mentioned that the number of government laws adopted by the Federal Assembly of the RF is growing constantly. For instance, during the Parliaments 2001 spring session, 34% of the Governments bills were adopted, while during the spring session of 2002 this number increased to 45%.[1] Out of 204 laws adopted by Parliament and signed by the President in 2002, 94 (or 46%) were initiated by the Government of Russia. [2]

It should also be mentioned that the analysis of bills brought into discussion to the first and second State Dumas shows that the majority of them were originated by other bodies, rather than by the Government of Russia. However, both the worlds experience and the experience accumulated during economic reforms suggest that a totally different proportion is necessary: most bills should originate from the Government. Under conditions of continuing legal and economic reforms, existing laws quickly become obsolete and need substantial revision, and such changes should be initiated by the Government since it is responsible for conducting unified financial, credit and monetary policy. Being responsible for bills in those spheres, the Federal Government must originate the necessary draft bills and seek their adoption. In most foreign countries, legislative activity follows this path. In our country, until recently, the situation was fundamentally different. The leading lawmakers from 1994-1998 were the deputies of the State Duma (who introduced about 50 % of all lawmaking initiatives). The government of the Russian Federation introduced about 20% of legislation.[3] It goes without saying that this sort of participation of the government in the legislative process is not sufficient. As our German colleagues mentioned during this conference, the Federal Government in Germany introduces 60 to 90% of legislation reviewed in the Bundestag. However, in our country the proportions are now changing toward a more active participation of the Russian Government in legislative activity. The Government of Russia is gradually becoming a leader in legislative initiatives.

The role of the state authorities of the federal subjects in the legislative process is also often unsubstantial because they lack an adequate legislative base. At the same time, it is indeed important to take into account the opinions of the authorities of the federal subjects.

Part 1 of Article 104 of the Russian Constitution mentions, among others, the legislative and executive organs of the federal subjects as a source of legislative initiatives. The latter enables them to participate independently and actively in legislative activity on the federal level. However, as has been mentioned, in spite of the fact that the federal subjects and their representatives in the Federation Council are actively involved in introducing legislation (their share is up to 40% of all introduced legislation), the share of their bills in the State Duma comprises a much smaller percentage, e.g. during the autumn session of 2002, only 4%.[4] Several factors explain the relatively poor efficiency of the federal subjects participation in federal lawmaking. It can often be caused by a differing political attitude of the federal center toward the bill. However, I consider it necessary to dwell on the legal problems of the subjects participation in the federal lawmaking process.

To begin with, federal subjects frequently make legal errors when drafting prospective federal laws. This is often caused by the inadequate legislative experience of the authorities of many federal subjects. In Soviet times, regional and oblast councils were not given the right to adopt laws. Only autonomous republics, represented by their supreme soviets, could carry out lawmaking activity; that is also the reason why supreme soviets were called legislative organs. At the same time, the supreme soviets of autonomous republics were given the right to adopt republican constitutions and laws. I will illustrate this with an example.

The Duma of Primorski Krai elaborated and introduced the bill On Entering Changes and Additions to the Federal Law On General Principles of Organization of the Legislative (Representative) and Executive Organs of State Authority of the Federal Subjects[5] to the State Duma of the Federal Assembly. Clause 1 of the bill proposed that Article 5 of the Federal law concerned should be supplemented with a new Clause 5 stating the following: During its assemblies, the legislative (representative) organ of state authority of a subject of the Russian Federation can hear the reports of the leaders of territorial branches of federal executive state organs on how regional legislation is executed by those organs. Depending on the results of a hearing, the legislative (representative) state organ of a federal subject can introduce the legislation to the superior bodies. Certainly, the text of this federal bill should mention the legislation of any federal subject, not just that of a territory. Unfortunately, federal subjects propose bills just for themselves without considering the status of other subjects of the Russian Federation.

To support this bill, the Duma of Primorski Krai quoted the following arguments in the drafts explanatory note. According to the federal law On General Principles of Organization of Legislative (representative) and Executive Organs of State Authority of the Federal Subjects (Clause 6 of Article 8), the laws of a subject of the Russian Federation should be protected on its territory. The important issue here is providing interaction between the state authorities of a RF subject and the territorial branches of federal organs of executive authority. Such interaction does exist in reality, but, as was mentioned in the Duma of Primorski Krai, the interactions depend on the desire of the leader of the territorial branch of the organ of federal executive authority and are not regulated in any way. We can generally agree with these arguments. As a matter of fact, tight and active collaboration between a subjects state authorities and the local offices of federal departments is necessary and therefore should be regulated by law. However, the regulation of such interaction proposed in the draft of the above-mentioned law seems to be not quite appropriate.

It should be also taken into account that the main purpose of the local offices of federal departments is to execute federal laws which exercise powers delegated to the Russian Federation, as well as concurrent powers of the Russian Federation and its subjects. Moreover, a number of federal ministries (for instance, the Ministry of Foreign Affairs and the Federal Security Service of Russia) must only be guided by and carry out exclusively federal laws. Execution of the subjects legislation is not the highest priority for the local branches of federal offices, which is why it is unreasonable to introduce a special procedure to control the execution of those laws. However, this circumstance should not imply that these organs should ignore the legislation of the federal subjects adopted within their authority.

What are the measures that the Government of the Russian Federation can take to increase the efficiency of lawmaking of the federal subjects? In our opinion, the Government of the Russian Federation can do the following:

1.Maximize the participation of local branches of federal offices in planning the federal governments lawmaking activity.

2.Create conditions for interaction between the federal executive organs and the subjects executive organs, including joint preparation of federal bills and model laws for the federal subjects.

3.Take into account the laws of the federal subjects when drafting federal bills in the Federal Government, as long as the constitutional principle of distribution of powers between the Russian Federation and its subjects is observed. Unfortunately, federal bills are often proposed without taking into account the already existing laws of the subjects of the Russian Federation, especially those which have proven to be effective.

4.Take into account the suggestions given by the executive authorities of the federal subjects when developing bills for consideration by the Federal Assembly.

5.Assist in preparing and further training of the human resources engaged in legislative activity in the federal subjects, using the resources of research and academic institutions.

6.Use the academic potential of the Russian regions and the federal center in order to provide balance and improved quality of legislative acts.

It is important to keep in mind that the bills elaborated by legislative organs of the federal subjects that mention expenses covered by the federal budget can be introduced only if the federal government gives its report. The Constitution of the Russian Federation (Part 3 Article 104) vested the federal government with the power to give written financial-economic reports on the introduction or abolition of taxes and tax exemptions, the issue of state loans, the change of the states financial responsibilities and other matters which involve expenses covered by the federal budget.

The meaning of this procedure implies that the Government, being responsible for the execution of the budget and financial obligations, could get across its viewpoint on the financial base of the bills to the bills initiators and the Parliament in general and thus influence the decision of approving or disapproving such projects.

We should also notice that in practice there arises another question: is such a report necessary if a bill is originated by the federal government? In our opinion, if a certain bill is originated by the federal government, the latter should inform the State Duma of the financial-economic consequences of adopting the bill, according to the legal requirement of Part 3, Article 104 of the Constitution. This task should be performed in accordance with the regulations of the Government of the Russian Federation and should be presented as a financial-economic explanation of the bill along with other necessary materials directed to the State Duma.

The financial-economic explanation of a bill introduced by the federal government essentially plays the role of the governments report required by Part 3 of Article 104 of the Russian Constitution. We suppose that in this case, there is no need to present a separate document entitled report of the Government of the Russian Federation. The uselessness of the governments reports on its own bills is supported by an analogous procedure provided in the federal law On General Principles of the Organization of Legislative (Representative) and Executive Power Bodies in the Federal Subjects in regard to legislation introduced by the organs of executive power of the federal subjects. Clause 3 of Article 6 of this federal law states that bills which introduce or abolish taxes or tax exemptions, make changes in the financial obligations of a federal subject and other bills covered by the budget of the Russian Federation should be reviewed by the legislative (representative) organ only after they are presented by a higher executive (a supreme body of executive power) or after the presentation of a report from such a person. Moreover, some constitutions and statutes of the federal subjects provide that a positive report on such bills is required.[6]

The organizational forms of interaction between the Russian Government and the authorities of the federal subjects in the legislative process should include the following:

-The federal government and federal executive authorities should create working committees or groups to develop bills of federal laws in collaboration with the executive bodies of the subjects of the Federation.

-Informational interaction should take place between the federal government and authorities of the federal subjects.

-Both parties should inform each other of their positions on legal acts being reviewed by the Federal Assembly of the Russian Federation or legislative (representative) organs of the federal subjects.

-The resources of the research and academic organizations of the Russian Government and organs of executive power should be used to improve the quality of legislative activity.

-Seminars, conferences and meetings should be conducted which are dedicated to the exchange of experience on the organization of interaction between the federal and regional organs of executive power, as well as to improving the quality of the legislative process.

The interaction between the federal government and the federal subjects can be especially vigorous in any case in which the Government of Russia introduces into the State Duma a bill which concerns concurrent powers shared by the Federation and its subjects. The federal law On the Principles and Order of Distribution of Powers between the Federal Government of the Russian Federation and the Federal Subjects of the Russian Federation includes important statements concerning the participation of the authorities of federal subjects in legislative activity at the federal level. Article 13 of this federal law provides for the participation of federal subjects in the federal legislative process. It states that if both the legislative (representative) bodies and supreme executive power bodies of more than one third of the federal subjects oppose adopting a certain bill when read the first time, the State Duma may decide to create a conciliatory commission.

At the same time, this process must be bilateral. On one hand, the Government of Russia must support joint legislative initiatives of the authorities of the federal subjects, while, on the other hand, the authorities of the federal subjects must support (through their representatives in the Federation Council of the Federal Assembly) the legislative initiatives of the Government of Russia. To achieve that purpose, the authorities of the federal subjects must be maximally involved in developing plans and programs for the legislative activity of the Government of Russia.

Clause 88 of the Regulations of the Government of Russia states that whenever concurrent powers of the Russian Federation and its subjects are concerned, the Government must coordinate its lawmaking activity with the organs of executive power of the federal subjects. In this case, we suppose, only the supreme executive power bodies of the federal subjects are implied. The Government of Russia will send its plans for legislative activity to the executive organs of the federal subjects. This statement is an important step toward securing Russian federalism. However, we cannot ignore the fact that the Federal Government coordinates its lawmaking activity only with the organs of executive power of the federal subjects while it does pay a lot of attention to the legislative activity of the chambers of the Federal Assembly. It does take into account plans for bills in the chambers of the Federal Assembly (Clause 82 of the Regulations) and even examines the proposals of the chambers of the Federal Assembly concerning the preparation of bills and coordinates the drafting of legislation with them (Clause 87 of the Regulations). We suppose that the Government of Russia must coordinate its law-drafting activity not only with the executive power organs of the Russian regions but also with the legislative (representative) organs of power of the federal subjects. The federal constitutional law On the Government of the Russian Federation contains all of the prerequisites for this. Its Article 36 mentions that the drafts of federal laws on concurrent powers of the Federation and its subjects propounded by the Government of Russia must be forwarded to the authorities of the federal subjects. Since there is no mention that the authorities should include only the organs of executive power of the federal subjects, such draft federal laws should also be forwarded to the legislative (representative) organs of power of the subjects of the Russian Federation.

Article 43 of the federal constitutional law On the Government of the Russian Federation also includes a number of statements directing the Government of the Russian Federation to interact with the legislative (representative) authorities of the federal subjects. For instance, the Government of Russia forwards drafts of its resolutions which concern concurrent powers shared by the Russian Federation and its subjects to the legislative (representative) and executive authorities of the federal subjects. Comments and/or proposals on those drafts made by the subjects legislative (representative) and executive authorities should be examined by the Government of the Russian Federation. In addition, the Government of the Russian Federation should examine those comments and/or proposals within one month and inform the subjects authorities of the results of its examination. We believe that a further increase in interaction between the federal government and the authorities of the federal subjects (both legislative and executive) is a promising direction in the Governments legislative activity.

It has been mentioned that it is necessary to secure by law a procedure for the subjects participation in the lawmaking process which regulates their role and place in the process.[7] The law On Normative Legal Acts of the Russian Federation which has long been under consideration by the State Duma should be adopted urgently. It should regulate the principal issues of participation by the Russian Government and the federal subjects in the lawmaking process. This law should also prescribe the best forms and methods of the Governments interaction with the authorities of the subjects in the lawmaking process.

To summarize, I would like to notice that the Government of the Russian Federation must take the leading role in providing the base of research on lawmaking in the Russian Federation. This task can be attained both by improving the Governments own lawmaking activity and by creating the conditions for the improvement of the activity of other lawmaking bodies. This can be advanced by utilization both by the Government of Russias and federal executive organs utilization of the potential of research and academic organizations to increase the quality of draft legislation.

A more detailed legal regulation of the Governments interaction with the authorities of the federal subjects in the lawmaking process can improve the general efficiency of the mechanism of state power in the Russian Federation.



* Aleksei Vladimirovich Pavlushkin, Candidate of Science (jurisprudence), senior researcher of the Institute of legislation and comparative jurisprudence of the Government of the Russian Federation.

[1] Zakonodatelstvo. 2002. #6. pp. 25-26.

[2] Ibid.

[3] Isakov V.B. Federalnoe zakonotvorchestvo: nekotorye tendentsii razvitiia // Zhurnal rossiiskogo prava. 2000. #3. p. 27.

[4] Sootnoshenie zakonodatelstva Rossiiskoi Federatsii i zakonodatelstva subektov Rossiiskoi Federatsii. M. Olita, 2003, p. 126.

[5] Prilozhenie k Postanovleniu Dumy Primorskogo Kraia. # 816, September 5, 2000.

[6] Zakonodatelnye organy subektov Rossiiskoi Federatsii: pravovye voprosy formirovaniia, kompetentsii i organizatsii raboty. M., Gorodets, 2001, p. 62.

[7] Konstitutsionnoe zakonodatelstvo Rossii / ed. by Iu. A. Tikhomirov. M., 1999, p. 125.


 
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