Self-organized bodies of the population and the local government’s nature concepts

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Self-organized bodies of the population and the local government's nature concepts

Mishyna N.V.

Doctor of Juridical Sciences, Professor at the Department of Constitutional Law of the National University “Odesa Law Academy”

The article is dedicated to the correspondence of the municipal theory, which is applied in the country's legislation, and the policy about the bodies of self-organization of the population. The author researches the community theory, the state theory and the community-state theory and makes the conclusions about their adept's attitude to the bodies of self-organization of the population. Also, the author gives recommendations, which could be applicable in Ukraine: to select the preferable municipal theory on the state level and to harmonize the legislation with this theory. This will have a positive effect on the development of the institute of selforganization in Ukraine. municipal reform regulation administrative

Key words: local government, citizens' selforganization, bodies of self-organization of population, territorial community, local policy.

ОРГАНИ САМООРГАНІЗАЦІЇ НАСЕЛЕННЯ У КОНТЕКСТІ ТЕОРІЙ ПРО ПРИРОДУ МІСЦЕВОГО САМОВРЯДУВАННЯ

Ключові слова: місцеве самоврядування, самоорганізація населення, органи самоорганізації населення, територіальна громада, місцеве управління.

At present, Ukraine is undergoing the municipal reform,whichisanintegralpartoftheadministrative reform. Much attention is paid to this reform as evidenced, for instance, by the fact that the new Head of the State, whose inauguration has taken place in Ukraine quite recently, has already devoted time to work on decentralization of public power and “instructed to approve a new state strategy of regional development for the next 6 years (2021 -2027)”[1].

The concept of the І998 administrative reform notes that the main task of the municipal reform is to eliminate shortcomings which significantly affect the implementation of management activities. It is worth highlighting this task has been being still performed. Thus, when carrying out the reform and its legislative support, priority should be given to the study, analysis, generalization and implementation of the best domestic and international practices in the local government development. One of the important practical tasks at the current stage is to liven up community participation in establishing local democracy, including, in the work of bodies of self-organization of the population (hereinafter referred to as “BSOP”) - house, neighborhood, street, etc. committees. The major scientific objective is the doctrinal maintenance of this process. It should be emphasized that the contribution of legal scholars, primarily, involves creating the efficient regulatory support of foundation and functioning of the bodies of SOP as an element of the local government system.

Local government has attracted interest of V. B. Averianov, M. O. Baimuratov, O. V. Batanov, V. M. Kamp, M. I. Korniienko, V. V. Kravchenko, V. S. Kuibida, V. F. Meleshchenko, M. P. Orzikh, B. A. Perezhniaka M. V. Pitnyk, V. F. Pohorilko, M. O. Pukhtynskyi, A. O. Selivanov, V. F. Sirenko, A. S. Tkachuk, Yu. M. Todyka, O. F Frytskyi et al. However, none of these authors has considered the influence of local government theories on the bodies of SOP - principally, on the government policy related to these bodies and statutory regulation of their activity. Thus, it is the very purpose of the article: to formulate the recommendations for improving the efficiency of the statutory regulation of creation and functioning of the bodies of self-organization of the population relying on the analysis of local government theories.

When it refers to local government, the scientists' visions, approaches and proposals differ drastically depending on their interpretation of the nature of this institute. These days the nature of local government is considered in public, state and public-state theories of local government. The contributions by M. I. Korniienko (see, e.g. [2, p. 625-628]), P. M. Liubcheko (see, e.g. [3, p. 131-142]), B. A. Perezhniak (see, e.g. [4, p. 58-62]), B. A. Perezhniak & O. V. Batanov (see, e.g. [5, p. 71-83]) have extensively characterized the essence of these theories as well as their benefits and drawbacks.

The public theory of local government assumes that the primary entities of local government are territorial communities, and the nature of power they exercise is public - not publicstate, but public-municipal. B. A. Perezhniak and O. V. Batanov hit the mark this theory “proceeds from the opposition of a territorial community to the state, public interests to political ones, requiring that society and the state pursue their interests”. The theory emerged in the USA; A. Tocqueville wrote about it noting “a resident of New England is interested in the community affairs as he participates in its governance;... he intervenes in any, even the smallest, incident in the community life because he learns to manage a society in this available, even a limited, area of activity” [6, p. 71].

Ordinary U.S. citizens and scholars still believe that power belongs to local people's associations (territorial communities) which have delegated it to a higher level (federal subjects and the state). The philosophy of political science, which originated in the United States in the 1990s and called “communitarianism” (from English “community”), has emphasized the popularity of that sort of idea.

Accordingtothefollowersofcommunitarianism, it would be recommended to take the most crucial decisions at the level of territorial communities; consequently, state authorities and bodies of the federal subjects are regarded as “evil”, which is opposed by municipal bodies. They believe pitch-perfect managerial decisions should be taken either as a result of a concluded agreement between the parties or, if it is impossible, approved in a referendum. This idea is partially realized at the municipal level in the United States. Thus, in towns and townships, the most crucial decisions are made at the town meetings (township). In cities (like Los-Angeles), where the above practice can't be actualized, the most crucial decisions are made in a referendum.

A manifestation of the implementation of public theory in the United States is the organization of municipal government in the nation's capital. Washington, by its status, is an incorporated city which is not part of any state; it is located in the District of Columbia. This federal district was separated from Maryland in 1971 specifically to locate the US capital. At that time, it had been called “Territory of Columbia, and the federal city - the City of Washington”; it was renamed in 1793. Since 1878, the boundaries of the County have coincided with the boundaries of the City of Washington. The US Congress has the right “to exercise in all cases the exclusive legislative powers towards a county (which doesn't exceed ten square miles), which is detached by individual states and approved by the Congress, which is about to become the corporate seat of the United States government” [7]. The US Constitution assigns the administration of capital affairs to the competence of the federal government. For some time the people didn't elect municipal bodies in Washington. However, referring to the provisions of public theory of local government, the city residents gained the right to participate directly in the formation of municipal bodies. The United States Census Bureau classifies municipal authorities into bodies of general competence and bodies of special competence (special districts and school districts [8]); bodies of special competence in the territory of the Washington city are not formed yet.

The advantages of public theory include the fact that it gives the territorial community the greatest scope of rights in the exercise of local self-government. Thus, it raises the possibility of maximum consideration of the opinion of members of the territorial community, increases the level of trust in bodies and officials of local government. Moreover, this theory provides bodies and officials of local government with the maximum independence from state authorities.

Another advantage is that according to this theory, local government somewhat “balances” state power - if state authorities strive to ensure the similar living conditions for every citizen, then local government bodies strive for the same, but for the members of the territorial community that formed them. Consequently, state power is balanced “horizontally” due to the application of the theory of the separation of state power (legislative, executive and judicial), and another type of public power - self-governing (municipal) public power - balances it “vertically”. As the system of checks and balances is needed while distributing state power “horizontally”, the equivalent actions are necessary while balancing state power by local government. The most effective of them is the relative independence of local government from state power - the more independent local government is, the more effectively it balances state power. O. F. Frytskyi characterized this phenomenon as follows: “the principle of the separation of powers is related to the principle of local government, which ensures, along with centralization of the management system, its decentralization at the local level” [9, p. 478].

It should be noted that when introducing the state theory of local government, there will be no balance at all. And when introducing the publicstate theory, a balance will exist, but it will be most effective in the case of practical realization of the public theory of local government.

The approach, according to which the state power is balanced by local government, is relevant to the bodies of SOP - in case of such a balance, the bodies of SOP act as one of its constituent parts. Therefore, the bodies of SOP will have the maximum scope of independence in case o'f implementation of the public theory of iocal government in the state, and the smallest scope - in case o'f implementation of the public-state theory. They wiil be a!most completely dependent on state authorities in case of implementation of the state theory of local government. Indeed, this is only one of the factors which affect the independence degree o'f the bodies of SOP, but one of the most im portantfactors.

The above considerations permit scholars to argue that the public theory of local government “contradicts the theory of sovereignty of the people as the only source of state power” and to mark that “sovereignty” of a territorial community and its bodies is dangerous for the state” (M. I. Korniienko). B. A. Perezhniak, who is more favorably disposed towards this theory, also notes that its deficiency is caused by the fact “the supporters of the public theory justify in some way the manifestations of local (micro-territorial) selfishness which take place in the life of every country”. This deficiency is the most major, and it seems that the public theory of local government “owes” to it that it is not used autonomously at the present stage. In modern times, the US public theory of local government has been transformed into public-state one due to two factors:

1) the powers of municipal bodies are determined by state authorities and bodies of the federal subjects (Dillon's Rule);

2) however, the division of powers is conducted taking into account the principle of subsidiarity (amendment X to the United States Constitution).

According to M. I. Korniienko, one of the deficiencies of the public theory of local government is the fact that in case of its implementation “local government is possible only at the level of settlements; it is possible only in the form of voluntary associations of territorial communities at the level of rayons (districts) and oblasts (regions)”.

The author believes a sharp rejection of the public theory of local government by many scholars is scarcely justified. In fact, any state doesn't apply this theory these days. This theory is somewhat idealistic. However, in the author's opinion, its actualization will result in the most democratic organization of local government in the state. It is beyond argument that this will require political stability, economic stability, a high level of legal awareness of the population; however, this theory is hardly worth being sharply criticized and rejected. An approach to it as, for instance, to the rule-of-law would be more fruitful.

The state theory of local government holds that the nature of power exercised by local government bodies is public-state. Compared to supporters of the public theory who believe the people are a source of power, supporters of the state theory consistently realize the thesis marking a source of power is the state, which lodges other actors with power at its discretion. For this very reason, the supporters of the state theory of local government find it impossible to divide public power into public-state and publicmunicipal (self-governing) power.

Thus, according to the state theory, local government means that “state power is decentralized in such a way that it is also exercised at the level of territorial communities of citizens” (M. I. Korniienko). B. A. Perezhniak and O. V. Batanov add that “in contrast with the central public administration, local government is not exercised by government officials but with the help of local communities (territorial communities), local citizens who are interested in the outcome of local government”.

In O. F. Frytskyi's opinion, this very theory, with some modifications, has been implemented at the modern stage of Ukraine. He marked: “the state concept of local government with traces of the “Soviet model” has been introduced in Ukraine that practically means direct interference in the activities of bodies and officials of local executive government represented by local state administrations” [9, p. 478].

M. I. Korniienko, who is a supporter of the state theory of local government, believes the advantages of this theory are in the fact that due to its application, the exercise of local government is accomplishable at the regional level as well, not only at the level of a territorial community. The advantages of the state theory of local government include the fact that in case of its implementation, the conflicts between state authorities and local government bodies are minimized, and potential ones can be resolved faster and more efficient than the conflicts between these bodies in case of the application of other theory of local government. Another advantage is the consistent introduction of a unified policy throughout the country.

P. M. Liubchenko attributes an underestimation of the role of the popular initiative, infringement of democratic principles of community participation in settling local issues to the deficiencies of the state theory. Moreover, a significant deficiency is that local government bodies, in case of the application of the state theory, will have the lowest degree of autonomy from public authorities - if they have at all. The historical experience shows that in the states with anti-democratic political regime, local government is either non-existent or built using the state theory of local government.

The public-state theory (theory of municipal dualism) assumes that local government bodies are independent of the state when exercising their powers. When local government bodies perform the functions of the state (delegated powers), they are considered as state authorities. Consequently, the nature of their power is mixed: when performing the functions of the state - public-state, in other circumstances - public-municipal. In other words, according to P. M. Liubchenko, “local government is independent of the state only when handling exclusively economic and public affairs and, in the political field, it is considered as an agent of the state performing government functions”.

In combining the vision of the nature of municipal power by both theories, the publicstate theory of local government is closer to the public theory, as it assumes the availability of two types of public power - state and municipal, and therefore, allows the independence of local government bodies from state bodies, though not in every instance.

The most remarkable positive feature of the public-state theory is its flexibility in mixing the advantages of public and state theories. B. A. Perezhniak notes that in case of application of the public-state theory of local government, it is eliminated the bifurcation of power, which leads to political instability and weakening of the state and its institutions; most people gain opportunities -participation in the management of public and state affairs which raises the cultural andlegallevelofcitizensandpromotestheirrespect for the law; a gap between society and the state is bridged; it is achieved the shared objective - to preserve and strengthen society and the state having democratic institutions; the state is mainly in touch with the local affairs and makes relevant decisions, the essence of which is consistent with the interests of the people; there is a common interest for citizens and government agencies which involves building a decent life for every person and society as a whole.

However, by combining the advantages of the public and state theories, the public-state theory combines their shortcomings, which have already been considered. In addition, according to M. I. Korniienko, limitations of the public-state theory also include the fact that the existence of entities with a dual nature in the local government system would contradict:

- social systems theory; in his opinion, the same element cannot belong to two different systems at the same time: territorial communities or other territorial communities and the state; it will be completely subordinated to only one of such systems sooner or later;

- the principle of the separation of powers, which is the dominant of the rule-of-law state.

Unfortunately, M. I. Korniienko has poorly developed the latter statement in his contributions. Consequently, it is not very clear why the availability of public municipal power contradicts the principle of division of public state power into legislative, executive and judicial branches.

The public-state theory is the least balanced and reasoned because it is quite difficult to maintain a balance between “state” and “public” in case of its application. Thus, the legislation of the countries, which use this theory, prefers either public or state theory of local government.

It is essential to summarize that at present, Ukraine uses the public-state theory of local government, which tends to the state theory. Nevertheless, the law of Ukraine on the local self-government involves the elements of all three theories. In this regard, it is urgent to bring it into line with the public-state theory - there are reasons to believe this process will be long because such changes are needed not only by the current legislation but also by certain provisions of the Constitution.

The significance of the bodies of SOP for supporters of each of these theories is as follows:

- public theory of local government considers associations of people at the place of residence (analogues of the bodies of SOP) as the primary sources of power. According to the proponents of this theory, the lower the level at which a decision is made, the more effective the decision is. Thus, in case of the implementation of the public theory of local government, the bodies of SOP will receive wide support from both local government bodies and public authorities; in addition, special attention will be paid to their independence;

- state theory of local government regards the bodies of SOP as a “prolongation” of the state power at the level of micro-districts, blocks, streets etc. Therefore, the bodies of SOP win broad support from state authorities and local government bodies (the latter, in fact, are also considered as state authorities). However, the bodies of SOP will not be independent because they will be included into the “vertical structure” of state authorities;

- public-state theory of local government: the relation to the bodies of SOP will depend on a theory the state will prefer - public or state (more details [10, 11]).

Conclusions

In the author's opinion, the following will contribute to the effective development of the bodies of SOP as a constituent element of the system of local government:

1) determination of a theory of local government at the state level; 2) consistent implementation of the provisions of this theory in the current legislation. At present, it hasn't taken place in Ukraine that significantly inhibits the development of the institution of selforganization of the population. The prospects for the further research should involve the need to provide more detailed recommendations for the favorable statutory regulation of the establishment and operation of house, neighborhood, etc. committees. It is worth proposing to start with an analysis of the current regulations of this institution and specification of a range of bodies which will implement these regulations most effectively.

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