New Draft Federal Law «On Basic Guarantees of Electoral Rights And Rights to Take Part In Referendum Of Citizens Of The Russian Federation»: Upsides and Downsides
By: Alexander Postnikov,
Ph.D. Doctor of Law
Translation Courtesy of the International Republican Institute (IRI), Moscow, Russia
I. General Remarks Regarding the Concept of the Federal Law «On Basic Guarantees...»
2. The «Seventh Wave» of the Electoral Laws' Reform
3. What does the Federal law «On Basic Guarantees...» protect: electoral rights or electoral procedures?
4. Legislation and Other Normative Acts On Elections and Referenda
5. Election Commissions
6. Nomination and Registration of Candidates
Discussion of the draft amendments to the Federal Law «On Basic Guarantees of Electoral Rights And Rights to Take Part In Referendum Of Citizens Of The Russian Federation», adopted by the State Duma in the first reading is good reason to ponder on the results and the prospects for development of the electoral system in the Russian Federation. In our opinion, to evaluate this draft law, it is most important to determine the possible consequences of the new legislative initiatives within the context of protection the rights and freedoms of citizens, and also development of the federative relations in Russia. Namely, the extent, to which the electoral legislation guarantees the implementation of principles built into the Constitution of the Russian Federation in the given aspects, determines the degree of democracy in the electoral legislation and the electoral system in general.
It is viewed as extremely important that the analysis of the concept of the new draft federal law precedes discussion of its specific strong and weak points, because without identifying the general role of this legislative act both in the Russian legal and electoral system it will be impossible to determine the factors which will contribute or hinder the implementation of the proposed new features.
I. General Remarks Regarding the Concept of the Federal Law «On Basic Guarantees...»
First of all, one needs to point out obvious things. A sufficiently compact Federal Law «On Basic Guarantees of the Electoral Rights of Citizens of the Russian Federation» (adopted in 1994), that contained only truly basic guarantees, was replaced by quite massive Federal law «On Basic Guarantees of Electoral Rights And Rights to Take Part In Referendum Of Citizens Of The Russian Federation», which is not a framework law, that stipulates basic guarantees of the electoral rights, but rather an instruction-law, that in detail regulates all stages of the electoral process. The draft new edition of the Federal Law «On Basic Guarantees of Electoral Rights And Rights to Take Part In Referendum Of Citizens Of The Russian Federation» develops the existing trend even further. It is a text on 254 pages.
With this regard one can hardly understand the reasoning behind proposals of some deputies on adoption of an electoral code of the Russian Federation. In fact, such a code does exist, despite having a different name: the Federal Law «On Basic Guarantees of Electoral Rights And Rights to Take Part In Referendum Of Citizens Of The Russian Federation». If the essence of proposals to adopt an electoral code is to completely remove the regional legislator from regulating the elections, and deal with all issues at the federal level, one has a legitimate question: on which basis the Subjects of Federation are deprived of their rights to such an extent.
If one goes back to the Constitution of the Russian Federation (Articles 71, 72 and 73), it is absolutely clear that there is no basis whatsoever for referring the legislation on elections and referenda in the Subjects of the Russian Federation completely to the authority of the Russian Federation. The authority of the federal legislator may lie exclusively within regulation of electoral rights of citizens, i.e. the right to elect and be elected. Stipulation of specific electoral procedures is the constitutional right of the legislator in the Subjects of the Russian Federation. But, in accordance with the Federal Law «On Basic Guarantees of Electoral Rights And Rights to Take Part In Referendum Of Citizens Of The Russian Federation» currently in force, the authority of the regional lawmaker is significantly limited. Legislators in the Subjects of the Russian Federation are forced to replicate numerous and complicated norms of the Federal law with more or less variations and deviations. As a result, any elections in the Subjects of the Russian Federation are conducted in accordance with at least two laws - the Federal law and the law of the Subject of the Federation, which have practically the same subject of regulation. Such status can hardly be called normal from the legal standpoint. The history and the logic of such an approach to dealing with problems is fairly easy to track down.
The ideology of distrust regarding the ability of legislators in the Subjects of the Federation to deal with issues related to regulation of the elections started to officially dominate after adoption in 1996 of the Federal law «On Protection of the Constitutional Right to Elect and Be Elected To the Bodies of Local Self-Government». Adoption of this law was a reaction of the federal government to the unwillingness of certain Subjects of the Russian Federation to conduct local self-government elections. But, the mandatory provisions contained in the Federal law of 1996 had temporary nature for the Subjects of Federation, aw they were in force until the Subjects' own regulations for holding local self-government elections were adopted. Further on, the distrust of the regional legislator regarding practically all issues related to organization and administration of elections (formation of election commissions, financing of election campaigns, organization of the voting process, etc.) became largely a leading rationale behind strengthening the regulation of all aspects of election campaigns from the side of the federal legislator. This trend showed during adoption of the Federal law «On Basic Guarantees of Electoral Rights And Rights to Take Part In Referendum Of Citizens Of The Russian Federation» in 1997 and during the introduction of extensive amendments thereto in 1999. The draft new edition of this Federal law is also clearly within this trend of legislation.
As it is known, the Federal law «On Basic Guarantees...» pertains in equal extent both the federal elections and the elections conducted in the Subjects of the Russian Federation. Taking into account the fact that it is a very detailed law, it is clear that if the federal legislator needs to deal with some issue arising with regard to the elections of the President of the Russian Federation or deputies to the State Duma, it involves not only revision of the legislation on elections to the federal bodies of government, but also the electoral legislation of all Subjects of the Russian Federation. In general, one should point out that the «rules of the game» during elections in Russia change unjustifiably frequently, which destabilizes the legal system. It is particularly evident if one uses the example of the Subjects of Federation. Adoption of the new edition of the Federal law «On Basic Guarantees of Electoral Rights And Rights to Take Part In Referendum Of Citizens Of The Russian Federation» will initiate already the fifth «wave» of renewal of the regional electoral legislation during the eight years that passed after adoption of the Constitution of the Russian Federation in 1993.
2. The «Seventh Wave» of the Electoral Laws' Reform
Let us remind the reader that the first phase of lawmaking process in the Subjects of Federation happened in 1993-1994, when the first laws (regulations) of the Subjects of the Russian Federation on elections before the Federal law «On Basic Guarantees of the Electoral Rights of the Citizens of the Russian Federation» came into force in 1994. The second phase (1994-1997) was in fact putting the regional laws in compliance with the said Federal law. During the third phase (1997-1999) the laws of the Subjects of Federation were put in compliance with the Federal law «On Basic Guarantees of Electoral Rights And Rights to Take Part In Referendum Of Citizens Of The Russian Federation» adopted in 1997. During the fourth stage (1999 through now) some serious corrections were introduced to the legislation of the Subjects of the Russian Federation with regard to adoption of serious amendments and modifications to the Federal law «On Basic Guarantees of Electoral Rights And Rights to Take Part In Referendum Of Citizens Of The Russian Federation» in 1999. Such non-stop reformist work can be hardly deemed as a positive factor in stabilization of the electoral legislation.
In the authors' opinion, removal of certain, even most serious drawbacks of the Federal law «On Basic Guarantees...» every time should not become a pretext for radical renewal of the edition of the law, the more so in the direction of progressive increase of the degree of regulation.
Detailed regulation of all electoral procedures in the Federal law «On Basic Guarantees...» from the purely pragmatic standpoint has the benefit of providing the federal government with a tool of influence over administration of the regional and municipal elections. But there is no complete clarity in the issue of whether the federal or the regional government can to a greater extent use the potential of the legal norms. On the contrary, in a number of cases the punitive norms of the Federal law (on cancellation of registration of candidates, on calling elections invalid and some other cases) were applied in the interests of the local elites. A most vivid example of the former is cancellation of registration of Victor Cherepkov as candidate during gubernatorial elections in Primorski krai in 2001.
Some practically minded people demanded and still are demanding purely technocratic approach from the federal legislator, asking that the law «stipulates everything». And they have achieved a lot. The Federal law «On Basic Guarantees...» have largely become a detailed instruction for election commissions. But the law cannot be an instruction without damage to its main assignment of creating a general model of legal behavior of participants of electoral process and provide for the mechanism of settling the disputes arising in the process of implementation of the electoral rights.
Among the drawbacks of the instructive nature of the Federal law «On Basic Guarantees...» are also unjustifiably complicated electoral procedures, failure to comply with which can lead to the most serious sanctions being applied to the electoral process participants. Members of precinct elections commissions have extreme difficulty in compliance with the numerous stipulations of the Federal law «On Basic Guarantees...», simultaneously complying with the norms of the relevant electoral law of the Subject of the Russian Federation. When one has extensive list of requirements to the elections commissions, one can always find some issue in their work and challenge the results of the vote. In one example, failure to announce the marks in the ballots during tabulation of the votes was recognized by a court as a basis for declaring the results of the elections in the precinct invalid.
Increase in the volume of the Federal law «On Basic Guarantees of Electoral Rights And Rights to Take Part In Referendum Of Citizens Of The Russian Federation» was largely related to use of the casuistic approach for dealing with issues arising during election campaign. An example is the situation when to fight the practice of appearance of candidates with the similar family name the Federal law introduced a norm that allows use of pseudonyms by the candidates with similar names. The result of such novelty was use of pseudonyms by «double candidates» in their campaign tactics, which caused even more problems in their identification by the voters. Thus, the legislative policy aimed at elaboration of overly specialized instruments for dealing with issues arising during the numerous elections in the Russian Federation is deemed as extremely inefficient. The Federation should offer universal means aimed at ensuring that elections are conducted in democratic manner and the electoral rights of the citizens are protected. These general legal instruments should individually become more concrete as applied to the specifics of the federal, regional and local elections.
Summarizing the aforesaid, one should point out that it is required to change the actual ideology of the Federal law «On Basic Guarantees...» in the direction of its increased federalization, which envisions sufficient stability of its stipulations and cuts back its total volume of regulation, reducing the extent of «instructiveness» of its stipulations and refusing from the casuistic approach in dealing with the numerous issues arising in the course of elections.
3. What does the Federal law «On Basic Guarantees...» protect: electoral rights or electoral procedures?
Presently not a lot of people have such a question. Answer to this question means a lot in terms of practical protection of constitutional rights and freedoms of the citizens. Strictly speaking, in accordance with the Constitution of the Russian Federation adoption of the Federal law «On Basic Guarantees...» is possible only to implement the stipulations of Paragraph «c» of article 71 of the Constitution of the Russian Federation, in accordance with which regulation and protection of rights and freedoms of an individual and citizen lies within the authority of the Russian Federation. Accordingly, the goal of the Federal law «On Basic Guarantees...» can be only in regulation and protection of the citizens' electoral rights. The Constitution of the Russian Federation (part 2 of Article 32) defines these authorities as the rights of citizens to elect and be elected to the bodies of the state government and the bodies of local self-government, i.e. as active and passive electoral rights. Thus, the federal legislator can and must regulate active and passive electoral rights, creating legal environment for protection thereof.
But Article 2 of the Draft law the scope of the citizens' constitutional rights to elect and be elected, stipulated by Article 32 (part 2) of the Constitution of the Russian Federation, is unjustifiably expanded by means of inclusion of the right to take part in nomination of candidates (lists of candidates), in election campaigning, in monitoring the process of elections and work of election commissions, including verification of the results of the vote and the outcome of the elections, and in other electoral activities. The said rights to participate in electoral activities (participation in the process of candidates' nomination, in election campaigning, etc.) should be treated not as an individual type of electoral rights, but as guarantees of their exercising, by means of which the protection of the constitutional rights is actually provided. A different approach unjustifiably limits the authority of the Subjects of the Russian Federation in the sphere of regulation of the electoral process, since stipulation of specific rights of the electoral process' participants, derivative from exercising the active and passive electoral rights by the citizens, is in itself a measure aimed at protecting the rights and freedoms of individual and citizen (Paragraph «b», Part 1, Article 72 of the Constitution of the Russian Federation). If one adopts the standpoint, in accordance with which any regulation of specific rights of citizens (to take part in certain activities, including electoral-related activities) lies within the authority of the Russian Federation, one will come to a situation when any legal relations involving citizens will be subject to exclusively federal regulation. Absurdity of such position is obvious taking into account the stipulations of Article 72 of the Russian Federation.
Moving all issues related to electoral law and electoral process in the dimension of «regulation of the citizens' electoral rights» inflicts damage not only upon the principles of federalism of the Russian Federation, but upon the whole issue of protection of the citizens' constitutional right to elect and be elected. This, in particular, is displayed by shifting the priorities from regulation and protection of the citizens' constitutional rights proper to protection of procedural rights derivative from there. Thus, in accordance with the practice of implementation of the Federal law «On Basic Guarantees...» currently in force, when the candidates commit individual violations of the electoral procedures, that in principle can not seriously influence the results of the elections, the consequences for them may include refusal to register the candidates and cancellation of the candidates' registration. Employment of such sanctions effectively means depriving such candidates of their passive electoral right in the course of the elections, and depriving the voters of their right to vote for the said candidates. Such actions cause extremely negative public reaction, lower the level of citizens' trust of their government and lead to «None of the Above» protest vote during the elections or refusal of a significant part of the voters to participate in the elections.
Therefore, it is extremely important to make sure that the federal legislation protects the electoral rights namely as constitutional right of the citizens to elect and be elected. Stipulation of specific rights of citizens, or authority of election commissions applying to various stages of electoral processes should be aimed exclusively at ensuring and protection of active and passive electoral right. Hence, sanctions for violation of these specific rights can not be deemed as purpose in itself, but rather the possibility of their employment should be commensurate with the extent to which the citizens' constitutional right to elect and be elected is observed. To implement such approach, one needs to amend the definition of the term of «electoral rights of citizens» in the draft new edition of the Federal law «On Basic Guarantees...» (Article 2), formulating it the following way:
«The electoral rights of citizens is the right of the citizens of the Russian Federation, stipulated by the Constitution of the Russian Federation, to elect and be elected to the bodies of state government and bodies of local self government».
4. Legislation and Other Normative Acts On Elections and Referenda
Paragraph 6 of Article 1 of the Draft law does not comply with parts 5-6 of Article 76 of the Constitution of the Russian Federation. In accordance of the aforementioned constitutional norms, the priority of the federal laws over the laws of the Subjects of the Russian Federation is recognized only with respect to the laws adopted regarding the subjects of authority of the Russian Federation, and the subjects of joint authority of the Russian Federation and the Subjects of the Russian Federation. Since, in accordance with Articles 71 and 72 of the Constitution of the Russian Federation the legislation on elections and referenda in the Subjects of the Russian Federation is neither within the authority of the Russian Federation or the joint authority of the Russian Federation and the Subjects of the Russian Federation, it is unacceptable to claim the priority of all stipulations of the Federal law «On Basic Guarantees of Electoral Rights And Rights to Take Part In Referendum Of Citizens Of The Russian Federation» with respect to all norms of the laws of the Subjects of the Russian Federation on elections and referendum. Liquidation of this discrepancy is an important step towards elimination of existing inadequacies in relations between the federal and the regional electoral legislation.
According to Article 11 (Paragraph 1), the legislation of the Russian Federation on elections and referenda includes not only constitutions, charters and laws, but the charters of municipal formations in the part pertaining to the regulation of local referendum, as well as other normative legal acts on elections and referenda adopted in the Russian Federation. First, charters of municipal formations are regulatory acts of the local self-government and under no circumstances can be treated as legislative acts. By their nature these are sub-legal acts. Second, mention of «other normative regulatory acts on elections and referenda» within the legislation on elections and referenda unjustifiably extends the scope of this legislation using miscellaneous sub-legal normative acts, starting with decrees of the President of the Russian Federation and ending with departmental normative acts, instructions and other normative resolutions of election commissions. This significantly reduces the importance of regulation of guarantees of citizens' electoral rights by the laws proper, since it is acceptable to use unlimited sub-legal, including departmental normative regulation, which is elevated to the rank of legislation. Ultimately this can inflict severe damage to the cause of protection of citizens' electoral rights. With this regard, it should be stipulated by the Draft law that acceptance of other normative and legal acts on elections and referenda is acceptable only in cases allowed by the federal laws, laws of the Subjects of the Russian Federation.
As a positive side of the Draft law, one should point out the differentiated approach to establishment of limitations with regard to amendment of the legislation of Subjects of the Russian Federation during election campaign. Thus, adoption of the said amendments is possible only to remove the conflicts in the legislation, add missing items to the legal regulation (Paragraph 2, Article 11).
Paragraph 17, Article 20 of the Draft law stipulates that resolutions and other acts of election commissions shall not be subject to the state registration. Paragraph 2, Article 35 of the Draft law mentions that resolutions of commissions, directly related to preparation and administration of elections shall be published in the state or municipal periodical printed publications or shall be communicated to the voters, participants of referendum by other means. One should point out that such procedures for publication as applied to resolutions of election commissions, being of normative nature, do not comply with Part 3, Article 15 of the Constitution of the Russian Federation, in accordance with which any normative legal acts, pertaining to the rights, freedoms and responsibilities of individual and citizen can not be applied unless they are officially published for the general information. Such wording of the Constitution does not provide for forms of communication of normative acts to the citizens, other than official publication.
5. Election Commissions
Stipulations of Paragraph 3, Article 22 of the Draft law requiring mandatory appointment by the bodies of state government of the Subject of the Russian Federation of no fewer than 2 members of the election commissions of the Subject of the Russian Federation based on the candidacies offered by the Central Election Commission of the Russian Federation, and of Paragraph 4, Article 26 of the Draft law, requiring election of the chairman of the election commission of the Subject of the Russian Federation contradict the principles of division of authority between the Russian Federation and the Subjects of the Russian Federation, established by the Constitution of the Russian Federation (Articles 71 and 73), in accordance with which formation of the bodies of state government of the Subjects of the Russian Federation is not within the authority of the Russian Federation. At the same time, Paragraph 15, Article 20 of the Draft law election commission is given the status of state government body of the Subject of the Russian Federation. Still, in accordance with Part 1, Article 77 of the Constitution of the Russian Federation the system of bodies of state government of republics, krais, oblasts, cities of federal significance, autonomous oblast, autonomous district shall be designated by the Subjects of the Russian Federation independently in accordance with the basics of the constitutional form of the Russian Federation and the general principles of organization of representative and executive bodies of the state government, set forth by the federal law.
In essence, during the process of appointment of chairmen of election commissions of the Subjects of the Russian Federation a special procedure is introduced for coordination during appointment of candidates for position of the head of the regional chain of the unified system of election commissions in the Russian Federation. But, in the Federal law «On General Principles of Organization of Legislative (Representative) and Executive Bodies of The State Government of the Subjects of the Russian Federation» such co-ordination is envisioned exclusively for appointment of individual heads of territorial units of the federal bodies of executive branch. Election commissions are not considered executive government in the Russian Federation. The system of leadership and subordination in the relations between the Central Election Commission of the Russian Federation and election commissions of the Subjects of the Russian Federation are possible only with respect to holding elections to federal bodies of state government, when the respective authority is vested in the election commissions of the Subjects of the Russian Federation. It is namely during the federal elections that the federal and regional governments co-operate. If there is no trust to the regions regarding this issue, special election commissions may be formed by the federal bodies of state government at the territory of one or several Subjects of the Russian Federation. Such settlement of the problem will be completely in accordance with Paragraph «G» of Article 71 of the Constitution of the Russian Federation, in accordance with which formation of federal bodies of the state government shall be within the authority of the Russian Federation. As far as building the vertical of power in the relations between the Central Election Commission of the Russian Federation and election commissions of the Subjects of the Russian Federation goes, such a construction, aimed at creation of environment for direct control of the federal state body over administration of the regional and municipal elections is in complete contradiction with the principles of federal organization of Russia.
6. Nomination and Registration of Candidates
Article 27 of the Draft Federal law should directly provide for the opportunity of use of other forms of nomination of candidates by the Subjects of the Russian Federation. This is particularly important for implementation of procedure for establishment of representation of indigenous ethnic groups in the representative bodies of state government and representative bodies of local self-government, when the subjects of candidate nomination should include various forms (bodies) of self-organization of indigenous ethnic groups. In general, the issue of providing for representation of indigenous ethnic groups is poorly dealt with in the Draft law. Proposed by the draft law, 30% to 40% increase in the maximum deviation from the average norm of representation of voters in the territories of compact residence of indigenous ethnic groups by itself does not provide for any realistic guarantees of representation of such ethnic groups in the elective bodies of government. There have been precedents when the whole territory of the Subject of the Russian Federation was proclaimed territory of compact residence of indigenous ethnic groups by the law of the Subject of the Russian Federation. Real guarantees of the said representation can be ensured by introduction of special procedures for nomination of representative of indigenous ethnic groups within the framework of quotas, stipulated in accordance with the Federal law «On Guarantees of Rights of Indigenous Ethnic Groups of the Russian Federation.»
Paragraph 11, Article 29 of the Draft Federal law, in accordance with which «the Constitutions (Charters), laws of the Subjects of the Federation may stipulate that no less than half of deputy mandates in the legislative (representative) body of state government of the Subject of the Russian Federation shall be distributed among the lists of candidates», first, is completely deprived of the normative contents, because the Subjects of the Russian Federation even without this stipulation of the Federal law can use the mixed electoral system. Second, regulation of issues of use of one or another electoral system is not within the authority of the Russian Federation, it is an exclusive prerogative of the Subjects of the Russian Federation. One can assume that the aforesaid stipulation is introduced in order to encourage participation of the political parties in the regional elections. But, for dealing with this issue, one should use adequate means, which are in compliance with the Constitution of the Russian Federation. As an acceptable option, the Central Election Commission of the Russian Federation should be given an assignment to develop a model law on elections of deputies to legislative (representative) body of state government of the Subject of the Russian Federation, based on mixed majoritary-proportional electoral system and conduct respective work to clarify the benefits of such a law.
The Draft law contains a large number of grounds for refusal in registration of candidates and cancellation of registration. The majority of these grounds provide the possibility for subjective evaluation of the violations of electoral law committed by the candidate. Thus, Paragraph 6, Article 31 of the Draft law stipulates that gross violation of the procedure of collection of signatures in support of candidate (list of candidates) may be ground for refusal to register a candidate (list of candidates), to cancel the registration of candidate (list of candidates). Definition of whether the certain violation can or cannot be deemed as gross, is determined at the discretion of the respective election commission.
As practice of holding elections in the Russian Federation shows, cancellation of candidate's registration is often a tool for banning of quite popular politicians from participation in the elections. Such administrative settlement of issue on granting the citizens access to public offices unjustifiably violates the constitutional right of citizens to be elected to bodies of state government and bodies of local self-government, guaranteed by Article 32 (Part 2) of the Constitution of the Russian Federation. The principle of popular government, proclaimed by Article 3 of the Constitution of the Russian Federation envisions that only voters shall decide, whether one or another citizen deserves to be elected to certain elective office. That is why, it is expedient to radically reduce the list of grounds for refusal to register candidates and cancel registration of candidates (Paragraphs 11, 13, Articles 32, Paragraph 1 of Article 69 of the Draft law), leaving in this list only such grounds as: absence of candidate's passive electoral right, as well as violation of the procedure for nomination and registration of candidates, stipulated by the respective law (in particular, insufficient number of valid signatures, collected in support of the candidate). It is proposed to establish increased administrative liability for violation of the procedure of financing the election campaign or rules for campaigning. Issue of establishment of criminal liability for most serious violations during election campaigns (such as voter bribery) is also well substantiated. Thus, one needs to separate the procedure for exercising passive electoral right by citizens and determination of responsibility for violation of electoral law.
Taking into account the existing judicial practice, when candidate's registration was cancelled after the first round of elections and the additional voting was called, Paragraph 1, Article 69 should stipulate that it shall be unallowable to cancel the registration of candidate after the additional voting is called. Different way of dealing with such issue after the votes were cast will prevent the citizens from free use of their electoral rights.
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