PRESIDENTIAL POWERS IN THE SYSTEM OF STATE SUPERVISION IN THE MANAGEMENT SPHERE OF THE RUSSIAN FEDERATION

  • Zhanna (Joan) I. Ovsepyan Professor, Doctor of Legal Sciences, The Head of Department of State (Constitutional) Law, Faculty of Law, Southern Federal University
  • Valentina V. Zhelo Candidate of Legal Sciences, Associate Professor of Department of State (Constitutional) Law, Faculty of Law, Southern Federal University,
Palavras-chave: “correlation between constitutional and administrative laws”; “State administration and administrative law”; “state control”; state supervision “administrative control and constitutional control”; presidential control in the Russian Federation; entities under presidential control in the Russian Federation; forms and mechanisms of presidential control in the Russian Federation; presidential control and federalism in the Russian Federation; presidential control, government form and “separation of powers” system in the Russian Federation.

Resumo

  1. Rationale is determined by increase of convergence processes in constitutional and administrative and legal regulation of public administration sphere in democratic states, which is one of legal indications of trends to “rationalized parliamentarism” practice development. The practice of perception and reorganization of classic “triad” principle of branches of government and “checks and balances” system in state administration is featured with significant country-specific peculiarities and, at times, high dynamism in states with with a mixed government, and is observed, firstly, via studies of modifications of arrangement and status of individual responsibility, politico-legal institution of the chief executive.
  2. Aim of the article is to reveal, based on the study of development of president status regulation by constitution and administrative and legal mechanisms, modifications of “separation of powers” system under conditions of mixed government, i.e. semi-presidential republic in the Russian Federation, related to confirmation of constitutional and legal fundamentals of presidential power as an independent branch, its identification with executive (partially) and control (mainly) branches.
  3. The leading approach to the study of this issue is as follows. Mechanism of interaction, competition (but not confrontation) and “mutual circumscription” of authorities is ensured by corresponding organizational and legal forms of their activities. In order to ensure the effective functioning of the “separation of powers” system, it is necessary to consider that each of the branch of government are realized through the same organizational and legal forms, that is, also, by means of rule-making and on the basis of positive law enforcement, and both law enforcement and control activities. At that, functions conforming with lawmaking, law enforcement and administration, or control forms of each branch activities are implemented only within the ranges and framework of the corresponding branch purposive appointment. [3. p. 24].
  4. Results.

A). Due to convergence of constitutional and administrative and legal regulation, in the scientific community, there sometimes sound diametrically opposed judgments on future of structure of state based on division of powers: from complete negation of “separation of powers” principle to overuse of powers “division” into branches, significant extension of classic “triad” is proposed. It seems, that overuse of the power division, acceptance of multiple centers of power in state practice may inspire trends towards weakening of state, which is unwelcome for enforcement of rights and freedoms. However, some extension of classic system is feasible. Thus, regarding mixed forms of government, it is worthwhile to agree with necessity for reinterpretation of classic “separation of powers” concept, in particular, of extraction of control branch of government.

 B). State control as an organizational and legal form of activity is inherent to  each branch of power. Among the variety of constitutional control, there should be distinguished: Presidential control, parliamentary control, judicial control and control in the system of executive branch. However, as the branch of government in a presidential-parliamentary Republic, the constitutional control is identical to presidential status.  In control powers, there is the great (exceeding) force of presidential powers concealed in semi-presidential republic as compared to presidential powers in classic presidential republic.

C). In the course of operational (practical) activities, heads of states (chief executives), in most countries, exercise their constitutional powers, relying on apparatuses, not constitutionally established structures which status is rather based on administrative regulations, or administrative discretion rights. In Russia, the Executive Office of the President (similar to the corresponding organization in some other countries) relies on constitutional provisions, which is more corresponding to the requirements of constitutional system with regard to remarkable factual significance of the specified institutions for mechanism of individual responsibility powers exercising.

D). Presidential control in the Russian Federation, by its nature, is a form of constitutional control. The peculiarity of presidential branch of power in Russia (as a semi-presidential one) is that it is a synthesis of three foreparts: The status of head of state (highest representative of the Russian state and arbitrator of constitutionally established authorities); status of president as the chief executive; constitutional control powers of the President.

E). In composite (federate) states, the powers of the president in area of constitutional control of federate relations “vertical structure” are highly important to ensure unity and territorial integrity of state, prevent and preclude conflicts in legal system. In Russia, in this framework, the activity of the RF President is rather important, including the one based on interaction with courts and Russian procuratorial bodies. The Constitution of the Russian Federation (1993) envisages a wide range of restrictions of presidential control regarding the subjects of the Russian Federation, which are ensuring effect of constitutional state and federalism principles announced in the Constitution.

F). Maintenance of balance between constitutional and administrative regulation of public administration sphere in a democratic state is the condition of moderate balance of powers in constitutional “separation of powers” system.

5. Materials of the article may be useful when improving legislation and practice of states with a mixed form of government (semi-presidential republic) for development of constitutional control academical doctrine, for improvement of heads of states statuses under conditions of mixed forms of government.

Referências

See, for example: Constitutional And Administrative Law. Hilaire Barnett. Cavendish Publishing, July 29, 2002 – 1301 p.; ALDER J. Constitutional and Administrative law. – 6th ed. – N. Y.: Palgrave, 2007. – 559 p.; Constitutional and Administrative Law. Neil Parpworth. OUP Oxford, April 5, 2012. – 540 p.; Unlocking Constitutional and Administrative Law. Mark Ryan, Steve Foster. Routledge, May 16, 2014 – 656 p.

Ref. to Korshunov N.M. Public and private rights convergence: Issues of theory and practice. NORMA. INFRA-M. Moscow. 2011, 240 p., etc.

Ovsepyan Zh. I. Legal assistance to the Constitution. Judicial, constitutional control in foreign countries. Rostov-on-Don: Litera-D, 1992. – 320 P.
Bakhrakh D. N., Rossinsky B. V., Starilov Yu. N. Administrative law: the textbook for high schools. M.: Norma 2004.

Alyokhin A. P., Karmolitsky A. A., Kozlov Yu. M. Administrative Law of the Russian Federation: the textbook for high schools. M.: Zertsalo, 1998.
6. Theory of State and Law / edited by M. M. Rassolova, V. O. Luchina, B. S. Ebzeeva. M. “Law and Right”. 2001.

Draft Federal Law “On The Basis of State Supervision and Municipal Control in the Russian Federation”. introduced by the Government of the Russian Federation [electronic resource] // Consultant Plus. URL: http://www.consultant.ru (reference date: September 10, 2016).

The conception of the Russian legislation development / edited by T. Ya. Habrieva, Yu. A. Tikhomirova. Moscow, 2010.

See: Tarasov A. M. Presidential control. St. Petersburg. Law center. Press 2004– 644С..

Kutafin O.E. The Head of State, Moscow, “PROSPEKT” 2012. – 558 p.
Okun’kov L.A. The President of the Russian Federation. The Constitution and political practice. INFRA M – NORMA Publishing Group, Moscow, 1996 - 235 p.

Ovsepyan J.I. System of the superior bodies of power in Russia (dialectics of constitutional and legal foundations from the early 20th to the early 21st century). Rostov multi-regional institute for social sciences. 2006. - 591 p.

Baglay M.V. The Presidents of the Russian Federation and the United States. The role, procedure of elections, powers. Edition 2. Moscow, NORMA, INFRA-M. 2012. – 144 p.

Sakharov N.A. Presidency institute in the modern world. Moscow. 1994.

Degtev G.V. Establishment and development of Presidency Institution in Russia. MGIMO (University) of the Ministry of Foreign Affairs of Russia, Moscow, YURIST, 2005, 237 p.

Polunina I.E. Russian Sovereign: History, theory, constitutional practice. Rostov-on-Don, 2009, 203 p.

Luchin V.O. Rule by decree in Russia. Moscow, Christianity State Center “Veles”, 1996, 52 p.

Krasnov M.A., Shablinskiy Russian system of government: A triangle with the one corner. Moscow, 2008, 232 p.

Skuratov Yu. Presidential power in Russia: Constitutional provisions and practice. Pravo i zhizn [Right and life]. Moscow, 1992. No. 2 pp. 4-18.

Control and supervisory activities in the Russian Federation: Analytical Report, 2013. Sourcebook. Publication date: 2014. Collective monograph. Publication place: Moscow MAKS Press.

Skuratov D.Yu. Separate issues of participation of the RF President in law-making process. Ed. S.A. Avak’yan. Moscow, 2007 - 141 p.

Okun’kov L.A., Roschin V.A., Veto of the President. Research and practice book. Gorodets. The Formula of right. Moscow, 1999 - 347 p.

Suvorov V.N. Constitutional status of the RF President: Authors abstract of Doctor of Legal Sciences. Moscow, 2000, pp. 14-15; etc.

Gazette of the Congress of People’s Deputies of the Russian Federation and the Supreme Soviet of the Russian Federation. 1991. No. 17, Article 513.

Kolyushin E.I. Constitutional (state) law in Russia. Moscow, 1999. p. 219.

Avak’yan S.A. Constitutional right. Vol. 2, Moscow, 2006, pp. 298-299.

Kozlova E.I., Kutafin O.E. Constitutional law Russia. Moscow, 2006. pp. 378, 379, etc.

Shakhray S.M. Constitutional law of the Russian Federation. Moscow, 2003, 636 p.

Shakhray S. “Who did say there are three branches of power to be? Nobody!” Business electronic newspaper of Tatarstan. More details on “BUSINESS Online”: https://www.business-gazeta.ru/article/305214

Chirkin V. E. The Head of State. Comparative Legal Study. M.: Norma; INFRA-M, 2010.

Address of the President of the Russian Federation to the Federal Assembly of the Russian Federation for 2017.

Ref. to Articles 80-81 of Federal Constitutional Law dated July 21, 1994 No.1-FKZ “About the Constitutional Court of the Russian Federation” (as amended and supplemented).

Ref. to Articles 7, 27, 29, 29.1 of Federal Law of October 6, 1999 No. 184-FZ (rev. of December 28, 2016) “About the general principles of the organization of legislative (representative) and executive bodies of the government of subjects of the Russian Federation”.

Modern bourgeois states law. Critical Essays. 2 Main Institutions. Resp. Ed. Prof. V.A. Tumanov. Moscow, Nauka, 1987, 376 p.

Sajo A. Limiting Government (An Introduction to Constitutionalism). Translated from Hungarian. Moscow, Yurist, 2001. 292 p.

Skuratov Yu. Presidential power in Russia: Constitutional provisions and practice. Pravo i zhizn [Right and life]. 1992, No. 2 pp. 4-18.
Publicado
2020-04-23
Como Citar
(JOAN) I. OVSEPYAN, Z.; V. ZHELO, V. PRESIDENTIAL POWERS IN THE SYSTEM OF STATE SUPERVISION IN THE MANAGEMENT SPHERE OF THE RUSSIAN FEDERATION. Gênero & Direito, v. 9, n. 03, 23 abr. 2020.
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