Problems of controllability of region within the framework of strengthening of the imperious vertical of Russia
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Problems of controllability of region within the framework of strengthening of the imperious vertical of Russia
The discussion about forms, methods and purposes of strengthening of the vertical of the power takes more and more outstanding place in Mass Media, in speeches of state and public figures, in works of political scientists and jurists. However, in the similar polemic the applicability of the organs of government is not seen, namely to create necessary organizational legal conditions for realization of the needs of the society, the potential of each person. For achievement of the given purpose, from our point of view, more applicable is not the term «strengthening of the vertical of the power», but «controllability»: controllability of the country, region, eventually, a concrete developing situation. For this purpose both institutional components and adequate normative maintenance is necessary.
Controllability of the Federation cannot be effective without rational controllability of its subjects. And rationality of management of the subject of the Russian Federation develops of the structural efficiency of the federal and regional institutional component, together with the institutes of the local self-management, — i.e. the institutes of the three-level public power; from the normative set of the federal and regional legislation.
It is necessary to note, that such term as «the vertical of the power», can be mentioned neither in the Constitution of the Russian Federation, nor in the Fundamental Laws of the subjects of the Russian Federation, hence, in essence, the given term has no precise legal contents.
At the same time, strengthening of the vertical of the power is usually mentioned in connection with the planned complex of activities (sometimes political, sometimes made out by laws, orders, resolutions of the government), but incorporated by one common goal — to provide unconditional subordination of subordinate organs of the power to the higher organs. However, such understanding is not absolutely true. From this point of view, fair is the position of President of the Russian Federation V. Putin who specified: «Our goal is not simply to build the vertical of the power, but to create conditions for preservation of the unity of the state and at the same time to make the state more effectively controlled». In this connection, we consider, that in view of the huge extent of our state of the exclusive variety of natural-climatic, resource, demographic, ethnic, structural and other features of its regions, specificities of the federal state system of Russia we need the strong state regional policy as the major component of the nation-wide policy of the country. One of the mainstreams of such policy should be study and analysis, generalization of experience of management in the regions of Russia and the subsequent legislative initiatives on introduction at the federal level of the most effective circuits.
Wishing to bring in the certain contribution to realization of above mentioned idea, we believe it possible to cover some aspects of the problem of controllability of the region of the Russian Federation, on the example of the Kabardin-Balkar Republic whose experience, from our point of view, deserves the certain attention, both on the part of the federal centre, and on the part of the other regions of Russia.
In the given foreshortening, the special interest should represent organization of the local self-management in Kabardin-Balkar Republic, which differed a little (and differs) from other models cultivated in the other subjects of Russia. And, first of all because at present the quality of reforming of the local self-management the productivity will influence carrying out of all other reforms, the overall performance on improvement of the quality of life in Russia, and the level and mechanisms of responsibility of the power under the society. The success of the given reform is very important for the country. In fact the situation «on the land», will finally help to estimate results of transformations.
The statutory-legal base of organization of the local self-management in the Russian Federation have become regulations of the Constitution of the Russian Federation, Article 12 (about recognition and guarantees of the local self-management; independence within the limits of the powers; and about independent level of the public power («The organs of local self-management do not include the system of the organs of the government»), chapter 8 (Articles 130, 131, 132, 133), the law from August 28th, 1995 No. 154-FL «About the common principles of organization of the local self-management», and later FL from 06. 10. 2003 No. 131-FL «About common principles of the organization of local self-management in the Russian Federation», and also ratification of the European charter of the local self-management. Taking into account, that the Constitution of the Russian Federation (item «n» — Part 1 Article 72) relates establishment of the common principles of organization of the system of the organs of the government and the local self-management to the subjects of joint conducting of the Russian Federation and the subjects of the Russian Federation, speaking about the sources of regulation, it is necessary to mention the necessity of inclusion into this base of statutory acts of the subjects of the Russian Federation, in particular, in our case, Law of Kabardin-Balkar Republic from 18. 10. 1995 No. 21-РЗ «About local self-management in Kabardin-Balkar Republic» (which has lost its force in connection with adoption of the new FL No. 131-FL) and a number of other acts specifying the above-mentioned regulations.
However, practical realization of the principles mentioned in the given documents has faced serious difficulties. The Federal Law of 1995 has remained in many respects declarative and in concrete, not to the full reflecting social and economic realities. Proceeding from this law in spite of the fact that there have been adopted other documents, in particular, laws on financial bases of the local self-management, the majority of municipalities could receive neither sufficient tax potential, nor sufficient means from the budgets of the higher level. It remained unclear, what level of the power should be responsible. All this has resulted, according to Chairman of the State Duma B. Gryzlov: «not only numerous conflicts between the local self-management and the regional power, but also disappointment of the citizens in the local self-management».
In Kabardin-Balkar Republic the local self-management has always drawn the most steadfast attention. The model of the local self-management created in Kabardin-Balkar Republic is called to take into account the difficulties, of the developing practice of organization of the local self-management, of the problem of interaction of the organs of the government with institutions of the local self-managementt, historical and other local traditions of the peoples of the Republic. It was necessary to create the mechanism which, on the one hand, would allow the population to determine independently directions, ways, forms, ways of transition to the local self-management, including organizational — legal structure, proceeding from specificity of the territories, and from degrees of readiness to accept responsibility for the decision of local questions; On the other hand — not to interfere with the state to realize national tasks, as the aiming of the local self-management only on maintenance of interests of the local communities in separation from the republican (and federal), evidently leads in uncontrollability in region, and, hence, to deterioration of the population. Thus, in the majority of the subjects of Russia, during five years the level of the public power has not been generated yet.
The problem of all the subjects, is in absolutization of independence (independence) of the organs of the local self-government on the background of inadequate distribution of the subjects of conducting and the powers between the level of local self-management and the level of the regional government, actual absence of the financial basis (property, fair distribution of tax incomes) and personnel potential.
On the background of such pitiable condition with the organization of the level of the local public power in Russia on the whole, the organs of the government of Kabardin-Balkar Republic have undertaken a number of efforts for the purpose of leveling the specified lacks of the federal legislation. Thus, there has originally come understanding: it is inadmissible to identify the local self-management, with the government of nation-wide, regional or local level. However, it is inadmissible the full opposition of the government (government) and local self-management in general as it is made by many researchers — supporters of communal or public theories of the local self-management, asserting that local self-management is not the government, that local self-government institutions are not included into the system of the organs of the government.
From our point of view, as well as from the point of view of other supporters of the state theory of the local self-management, the local self-management cannot be considered otherwise as in the set with the common organism of the whole government comprising it as a component. The similar point of view is reflected, from our point of view, in the European Charter about local self-management. According to the Charter (item 3 Article 4), «realization of the state powers, as a rule, should be mainly assigned on the organs of the government mostly close to the citizens», i.e. on the organs of local self-management being inherently the organs of local (instead of regional or central) representative — elective state government. The Charter (item 1 Article 3) includes in the sphere of activity of the local self-management, we shall emphasize it once again, «the significant part of state affairs» by which the organs of local self-management should operate «under responsibility and in the interests of local population».
Therefore, the principle of the combination of unity of the state and public interests has been laid in the basis of formation of the local self-management of Kabardin-Balkar Republic. The major goal was the necessity of creation of administrative organizational-legal conditions, based on the democratic principles, on the one hand, and preservation of controllability by the local self-management in the process of deep social and economic changes in the society, on the other.
Proclaiming and asserting the principles of democracy, democratic norms of formation of the local self-management Kabardin-Balkar Republic grounded on the necessity of:
— Preservation of the control over public processes at all levels, called today «the vertical of power»;
— Maintenance of effective interaction of the organs of the government and local self-management;
— Prevention opposition («pulling ropes») between the representative and executive components of the local self-management;
— Achievement of maximum effective organization of functioning of the local self-management for full satisfaction of needs and requirements of the population of the territories and the person.
For realization of the given tasks the Law of Kabardin-Balkar Republic «About the local self-management in Kabardin-Balkar Republic», has entered the norm according to which the local self-management in Kabardin-Balkar Republic shall be realized on the basis of the state and public beginnings (Article 2 of the Law of Kabardin-Balkar Republic) that has provided the optimum balance of the state and public interests.
The following has become the problem of forming of the system of the organs of local government, their structure, principles of formation. Certainly, the given aspects of the organization of the local self-management should be based on the norms of the Federal Law «About common principles of the organization of the local self-management in the Russian Federation». However, in this part, they were, «corrected» by practice (traditions, experience of national life) and as it appeared subsequently it was quite right (FL from 06. 10. 2003 No. 131-FL «About common principles of the organization of the local self-management in the Russian Federation». The system of the local self-management in Kabardin-Balkar Republic is formed in accordance with the developed administrative-territorial structure — in borders of the territories of districts, cities, settlements, villages. And city, rural communities comprise the structure of districts as the larger units. Therefore districts, on the one hand, are sets of local communities or so-called municipal associations and form the basis of the municipal self-management, and on the other hand, represent the important part of the imperous — state system of a certain administrative-state unit. That is in the republic there has been created and is functioning the two-level system of the local self-management: districts and cities of republican submission, town and rural settlements. It provides their effective interaction at deciding of local questions. In conditions of the certain subordination of mutual relations between the two levels of the municipal power the more effective are decided the transmitted governmental powers to the organs of local self-management, questions of management of the municipal property.
The legislation has stipulated not only territorial bases of various levels of the local self-management, but their economic and financial bases.
The important part in the system of organization of the local self-management in Kabardin-Balkar Republic is the order of formation of the organs of the local self-management. Not supposing intervention of the organs of the government into the process of formation of the representative organs of the local self-management, in Kabardino-Balkariya there has been created such mechanism of formation of the organs of the local government which provided interaction of the organs of the government with the organs of local self-management.
The deputies of the Councils of the cities of republican submission and administrative districts are elected on one-mandatory districts. The deputies of the representative organs of the cities of regional submission, rural settlements — Councils are elected directly by all voters of the settlement on the multimandatory districts on the rating system.
At the first session of the corresponding council out of the total number of the deputies elected in the above-mentioned way, on the offer of the President of the republic the deputies elect the chairman of Council. The elected chairman of the Council — the head of the representative organs of the local self-management — is appointed by the President of Kabardin-Balkar Republic as the head of local administration, allocating him thus alongside with the powers of the head of the executive organ of local self-management with the powers on performance of the state functions in the measure of investment of the local self-management. Besides such status allows him to act in two qualities: as the head of the local self-management, and «the representative of the republican organs of the government». In the first quality he prepares projects of decisions for the municipal council and executes his obligatory decisions whereas in the second quality brings to the population of the territory laws and provides their performance, takes part in revision of voting lists, draft campaigns to the army, etc.
As a result of overlapping in one person of the head of the representative and executive power there should be excluded the practice of opposition of the two branches of the local power, the operative and responsible sanction of administrative powers on realization of the state and public functions is provided. Thus the powers of the representative organs (Councils) realized jointly, and the executive organs (administrations) realized individually by the head, are legislatively differentiated and stipulated.
In Kabardin-Balkar Republic has been successfully realized the practice of interaction of the legislative (representative) organ of the government with the organs of the local self-management on the questions of:
— Legislative activity:
— Control over execution the of laws of Kabardin-Balkar Republic, its budget, programs of social and economic development, observance of the order of the republican property;
— Tax policy;
— Administrative- and territorial structure;
— Personnel assignments, etc.
The principles of formation and functioning of the structures and the system of the local self-management of Kabardin-Balkar Republic shall completely coordinate with the norms of the European Charter about the local self-management. With the norms of the Federal Law «About common principles of organization of the local self-management in the Russian Federation».
The above mentioned principles of organization and functioning of the system of the local self-management in Kabardin-Balkar Republic have allowed for the short period of time:
— To stabilize social and political situation and interethnic relations;
— To provide forward development of economy of the municipal units;
— To solve the vital issues at the high level:
of education (integration of secondary and higher vocational training has been carried out, has been provided admission to vocational educational institutions of various levels for all school leavers);
of public health care (the primary part of public health care has been strengthened, in all villages and settlements have been created medical ambulance stations or polyclinics, 30% extra charge to the salary of rural doctors has been made);
of social care of maternity and childhood (the 3-year paid holiday to mothers on care of a child has been entered in the Republic);
ofstrengthenings of the law and order (groups of assistance to militia operate, the Law of Kabardin-Balkar Republic «About participation of the citizens of Kabardin-Balkar Republic in realization of security of public order has been adopted and is realized»);
and of the problems of housing and communal services, transport and other maintenance.
Thus, the local self-management in the Republic has become a reality. There has been created the necessary constitutionally legal basis for functioning of the local self-management as the primary level of public authority approached to the population.
The federal public authorities have come to the conclusion about frailty of such understanding of the place and the role of the local self-management in the control system of management of the subject of the Russian Federation incorporated in the federal law of 1995, and the decision on development and adoption of the new concept of organization of the local self-management has been made therefore the Federal Law from 06. 10. 2003 No. 131-FL «About common principles of organization of the local self-management in the Russian Federation» has been adopted.
Following the principles reflected in the Constitution of the Russian Federation and in the international documents, its regulations have been coordinated to differentiation of powers, finance and responsibility between the organs of the government of all levels of public authority. The special importance belongs to the fact, that carrying out of the municipal reform is connected with carrying out of the tax and budgetary reform — and one of the major reasons of failure of the former municipal project consist laid in absence of such coordination. Besides there appeared the understanding about including of the level of the local authority to the system of control of the subject, with the special administrative relations based on the regulations of the Constitution of the Russian Federation. The law of 1995 has, and unsuccessfully tried to balance, formally all municipalities — from city to a small village, — but the law of 2003 is focused on forming a more logical provided sufficient financial base of system, in particular, opportunity of the so-called two-level system. The common principle is the following: the status of the municipal unit determines its powers, determines the local questions, which the corresponding organs are called to decide and can effectively solve. The system of municipalities in the country should become more harmonious: organs of local self-management are formed at the level of cities («city districts» — cities of regional significance), districts («municipal districts»), and at the level of units including districts («city and rural settlements»). Thus, the concept of the new law, with big delay, in the basis has absorbed the concept of the local self-management developed in Kabardin-Balkar Republic. At the same time, there still exist some regulations which require the prompt settlement.
Speaking about the prospects of such significant level of public authority as the level of local self-management it is necessary to note, that after introduction of the new system of allocation with the powers of the higher official of the subject of the Russian Federation (and actually «cancellation» of elections of heads of the subjects of the Russian Federation,) probability that heads of the municipal units (in particular) mayors of cities — capitals will continue to be elected directly is practically equal to zero. Therefore the new system of formation of the organs of executive power will inevitability be formed on «the entire territory of imperous vertical», from top to bottom. Apparently, there can be kept only the institute of direct elections presidential of the president of Russia.
In these conditions though the organs of local self- management are not included into the system of the government, they realize the state functions and are an element of the state system. It is necessary to determine precisely, that local self-management cannot be an independent municipal system, but is a component of the state control system. In this connection, realization of local self-management is not only the subjective right of the population. It is the complex phenomenon simultaneously being the level of public authority, and the mechanism of realization of the state policy, and authority close to the population.
Such understanding of the role and significance of municipal authority is called:
— To take into account difficulties of the developing practice of organization of local self-management, of the problem of interaction of the organs of the government with the organs of local local self-management, historical and other local traditions of various regions of the Russian Federation;
— To define precisely that local self-management cannot be an independent municipal system, but a component of the state control system;
— to stipulate the state interests at realization of the idea of local self-management.
Proceeding from this, we believe, that the example of such understanding of the problems of formation of the municipal authority can serve the model of local self-management developed in Kabardin-Balkar Republic.
The corner stone of the problem (as well as in a case with the regional level of authority) is the order of assignment (elections) of the head of local self-management.
The problem has been considered by the Constitutional Court of the Russian Federation in a number of decisions (Resolutions from February 1st, 1996 No. 3-П, from January 24th, 1997 No. 1-П, from January 15th, 1998 No. 3-П, from November 30ер, 2000 No. 15-П; Definition from May 15th, 2001 No. 98-O; from June 11th 1999 No. 105-O; from October 8th, 1999 No. 138-O; from November 2nd, 2000 No. 236-O). All the decisions are about the exclusive right of the citizens residing on the territory of the municipal unit, to determine directly or through the representative organ of local self-management, including election of the head of the municipal unit. It implies the duty of the organs of the government to provide this unconditional right to determine independently, without «any intervention» of the organs of the government and state officials the way of formation and the formation of the organs of self-management, including election of the head of municipal unit.
Thus, the maneuver here is very much limited. However, we believe, the expedient conceptual decision about stipulation in charters of municipal units of regulations about allocation with the right of representation of the nominee of the head of the municipal unit alongside with other subjects to the higher official of the subject of the Russian Federation.
So if to develop a firm vertical of authority it is necessary to carry it out up to the bottom. If the officials of the local self-management are elected, and the heads of the subjects of the Federation are appointed, it will not be the vertical of authority. Therefore the fair offers according to which the higher official of the subject of the Federation, offered by the President of the Russian Federation and approved by the regional legislative organ, should be appointed or represented the head of administration of the local self-management (the head of the capital of the subject, or the heads of the large cities having industrial significance for the subject). The fact is that in Russia there exist many examples when the heads of the region and capital clash, and therefore such state of affairs should be eradicated.
We consider the important problem regulations requiring adequate normative settlement are:
— Development of the institute of time realization of the powers of the organs of local self-management by the organs of the government.
The full and all-round estimation of expediency of introduction of «external management «and its conformity to the norms of the Constitution of the Russian Federation and international law allows to make the conclusion that the mechanism of the state intervention in the decision of local questions can be used only at presence of the force major connected with protection of the fundamentals of the constitutional b system and maintenance of safety of the state. However, speaking about the opportunity of withdrawal of separate powers of the organs of local self-management, it is necessary to admit the necessity of development of more democratic mechanism of the given procedure, and to consider the opportunity of transfer of the powers in the judicial order.
As to increase of efficiency of the municipal management, we believe it actual the problem of redistribution of the subjects of conducting and powers between the organs of the government of the subjects of the Russian Federation and the organs of local management. Thus, in our opinion, the problem has dynamic (changing) character, and cannot be solved at once for all the regions of the Russian Federations.
In our opinion at the decision of these questions it is necessary to ground on the following principles: on the one hand, to determine the common principles of the basic powers which should be recognized for all the subjects of the Russian Federation (regions), and simultaneously to provide the account of the special situation of various types of the subjects of the Russian Federation (regions), having given the opportunity in view of the opinion of the peoples of the corresponding subjects of the Russian Federation (regions) to use special powers justified on special occasions. Thus, the subjects of the Russian Federation (regions) should have the right to originality, and, hence, the right to differ from one another. (the same regulations are stipulated in the project of the European Charter about regional self-management).
In this connection, we cannot but express the position about the common work on harmonization of the federal and regional legislation.
The conflict character of the constitutions and many federal and regional laws is the up-date reality of Russia. And the most conflict have appeared the subjects of joint conducting stipulated in Article 72 of the Constitution of the Russian Federation. It is known, that on the subjects of joint conducting the federal laws are adopted and they frequently regulate everything, frequently beyond the common principles, leaving no place for the initiative of the regions. Actually it is the subject for the dispute on conformity of the Constitution of the Russian Federation (constitutionality) of such laws. The laws with the similar subject of regulation should determine the common principles of regulation in the given concrete sphere. Then its natural addition shall become the regional law taking into account the local specificity.
The Constitution of the Russian Federation has established the spheres of public relations which have become the subjects of joint conducting of the Russian Federation and its subjects on which the federal laws are adopted, and according to them the laws of the subjects should be adopted. However, some federal laws on the subjects of joint conducting are extremely detailed, adopted proceeding from the interests of the federal center, without taking into account the interests of the subjects, without giving them the right to decide independently the questions of vital necessity. democracy self management administrative
The analysis of the federal legislation and the legislation of the subjects of the Federation, in particular, of the legislation of Kabardin-Balkar Republic, allows to specify many positive, from the point of view of lawful activity, regulations of the laws of Kabardin-Balkar Republic in comparison with the similar norms of the federal laws.
The work on harmonization of the federal legislation and its legislation of the subjects should not be conducted unilaterally only by the regions as it is necessary to bring in changes to many federal laws, first of all, in the laws which do not take into account the federal structure of Russia, excessively interfere with the subjects of conducting of the subjects of the Federation, restrain their constitutional rights and simultaneously do not correspond to the Constitution of the Russian Federation.
It is important, that the organs of local self-management and the regions should be convinced, that their own experience is claimed. Application and generalization of the regional experience, distribution of «the best practice» have long ago been included in the list of the tasks necessary to solve in the process of administrative reform.Показать Свернуть