Identifier
Created
Classification
Origin
06KYIV4290
2006-11-17 07:23:00
CONFIDENTIAL
Embassy Kyiv
Cable title:  

UKRAINE: THE LONG ROAD TO REFORMING CONSTITUTIONAL

Tags:  PGOV PREL UP 
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PP RUEHDBU
DE RUEHKV #4290/01 3210723
ZNY CCCCC ZZH
P 170723Z NOV 06
FM AMEMBASSY KYIV
TO RUEHC/SECSTATE WASHDC PRIORITY 0397
INFO RUEHZG/NATO EU COLLECTIVE
RUCNCIS/CIS COLLECTIVE
C O N F I D E N T I A L SECTION 01 OF 03 KYIV 004290 

SIPDIS

SIPDIS

E.O. 12958: DECL: 11/16/2016
TAGS: PGOV PREL UP
SUBJECT: UKRAINE: THE LONG ROAD TO REFORMING CONSTITUTIONAL
REFORM

REF: 04 KIEV 4952

Classified By: Political Counselor Kent Logsdon for reasons 1.4(a,b,d).

C O N F I D E N T I A L SECTION 01 OF 03 KYIV 004290

SIPDIS

SIPDIS

E.O. 12958: DECL: 11/16/2016
TAGS: PGOV PREL UP
SUBJECT: UKRAINE: THE LONG ROAD TO REFORMING CONSTITUTIONAL
REFORM

REF: 04 KIEV 4952

Classified By: Political Counselor Kent Logsdon for reasons 1.4(a,b,d).


1. (SBU) Summary. Constitutional reform bill 4180 (now known
by its Ministry of Justice number 2222) shifting powers from
the President to the Prime Minister-led Cabinet of Ministers
and Rada majority was adopted December 8, 2004 as part of the
package to solve the political crisis ensuing from the Orange
Revolution and to allow a revote to elect Yushchenko
president (reftel). Haste and the need to paper over
disagreements, however, left the political reforms vague and
poorly written and thus open to potential Constitutional
Court challenge. Eight months after the new political system
went into effect (formally January 1, 2006, but in reality
after the March 26 elections),the Prime Minister, President,
and Rada are trying to feel their way through, and at times
to take advantage of, the vagueness to de facto and de jure
redefine political reform in their favor. Eventually the
Constitutional Court, a government body that gets little
attention and which lacked a quorum from November 2005-August
2006, may be called on to play a pivotal rule in the power
struggle by reviewing some or all of the changes from
December 2004. Court experts and politicians involved in the
drafting have stated repeatedly that, if asked and in the
absence of political pressure, the Court would likely rule to
overturn political reform in part or in whole. The decision
to initiate a potential review is thus a political one, still
being mulled separately by Tymoshenko's Bloc (BYuT) and Our
Ukraine, and likely to be fiercely resisted by the parties in
the ruling coalition, Regions, Communists, and especially the
Socialists led by Rada Speaker Moroz, who championed
political reform for nearly a decade. End Summary.

Constitutional ABCs
--------------


2. (SBU) The Constitutional Court sits outside the rest of
the judicial branch structure as an independent court that
hears only questions related to interpreting the 1996
constitution. It is comprised of 18 judges--6 appointed each
by the President, the Rada, and the Congress of Judges. The
Court sat without 14 judges for ten months from November

2005-August 2006 after political forces fearing an attempt to
overturn political reform refused to swear in judges
nominated by President Yushchenko and the Congress of Judges
in October 2005. As part of the early August agreement to
sign the Universal and for Yushchenko to nominate Yanukovych
as Prime Minister, the Rada took action to nominate its own
candidates and approve all judges.


3. (SBU) According to constitutional court experts, the Court
has two fundamental weaknesses. Private citizens cannot
petition the court--only the Rada, President, and the Cabinet
of Ministers can (all three have permanent representatives to
the Constitutional Court who petition on behalf of their
organization). Secondly, the Court has jurisdiction only
over the Rada, President, CabMin, and Crimean Parliament, but
no jurisdiction over lower courts or local and regional
governments, limiting its ability to rule on all
constitutional issues.


4. (SBU) There are two ways to amend the constitution. A
constitutional reform draft can be approved by a two-thirds
majority in the Rada and then be held subject to a
referendum. Or a simple majority (226 MPs) in the Rada can
approve the reform draft in one Rada session and then a
two-thirds vote (300 MPs) must approve the reform in the
following Rada session. Both versions require that the
Constitutional Court read the draft amendments before they
are voted on and that the Court-approved text be the version
of reform that goes forward.

Reversing Reform is Technically Possible....
--------------


5. (SBU) We spoke with two Constitutional Court experts,
former Court Judge Petro Martynenko and former senior court
clerk Stanislav Shevchuk, November 3 about the possible
annulment of political reform. Both stated that
constitutional reform could be undone on a number of grounds
if the Court took up this matter. They agreed that when the
constitutional reforms were adopted there were both
violations of Rada procedure and of the procedures for
amendment embodied in the constitution itself. Several of
the political authors of the December 2004 political
compromise, including former Rada Speaker Lytvyn and former
SDPU(o) MP Nestor Shufrych, have acknowledged that violations
in the way the reform was adopted are grounds for the Court
to overturn the reform. (Shufrych told us in September that
he warned Moroz, who is a longtime champion of political

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reform to reduce the powers of the President, of this danger
the morning of December 8, 2004, prior to passage of the
changes).

--Since there were approximately 15 changes made in the
reform draft after the Court okayed it, it should have been
reviewed a second time by the Court, which it was not.

--The constitutional reform was voted on in a package vote
along with the new presidential election law, which violates
Rada rules of procedure.

--If constitutional amendments are voted on and fail in the
Rada, the Rada must wait a year before reconsidering the
issue. A bill on political reform that was basically 4180
but submitted under a different number was voted on and
rejected in April 2004, so it should not have been eligible
for a vote in December of the same year.

....But Politically Questionable
--------------


6. (SBU) Judge Martynenko argued that the real issue was not
a question of a constitutional basis for undoing reform, but
whether there was a political one. Given that the reforms
had already been implemented and the new system was
functioning, would reversing the reforms simply cause chaos?
If the Court did vote to annul the reform, it would have to
provide very specific recommendations on how to transition
back to the old system and decide what would happen to the
Yanukovych government. In his opinion, it would be more
pragmatic to rework the current system than to undo it. Then
you could gather popular support by holding a referendum to
end the political debate.

The Orange Team: Slow to Challenge Status Quo
--------------


7. (SBU) There is no statute of limitations on making a
request for a court review, and thus far, no one has asked
the Court to review the constitutional reform package.
Yuliya Tymoshenko gathered the signatures of 45 MPs (note:
the minimum number required for the Rada to petition the
Court) over a year ago to ask the Court to cancel reform, but
did not submit it to the Court. She has since said
periodically both publicly and privately that BYuT still
plans to make an appeal. Most recently, she told AS Fried on
November 16 that she hoped the Constitutional Court might
overturn the reforms in the spring (septel).


8. (SBU) In past weeks, Our Ukraine members have begun
calling for amending constitutional reform, with a formal
decision taken in this regard at the party congress on
November 11. On November 8, Yushchenko's then representative
to the Rada, Yuriy Kluchkovskiy, said that constitutional
reform should be annulled because the Yanukovych government
was taking advantage of it to gain authoritarian powers. One
of Our Ukraine's leaders, Petro Poroshenko, also said
publicly that the reforms needed to be revisited. At a
November 8 briefing on the activities of the National
Commission on Rule of Law, Yushchenko decided that the
commission's top priority for next year should be
constitutional reform, although he did not specify what kind
of actions he would like to see.

The Coalition is Fighting Review
--------------


9. (C) On August 4, Regions pushed through in a single
reading a controversial amendment to the law on the
Constitutional Court barring the Court from reviewing
already-exisiting constitutional reform, which the Rada
passed and Yushchenko immediately signed. Shevchuk and
Martynenko opined that Regions wrote the law because there
were concerns that the new Court judges might be
pro-Yushchenko and because they are aware that legal grounds
exist that could result in an overturning of the
constitutional changes. Martynenko and Tymoshenko told us
that approximately 2/3 of the judges lean towards Yushchenko
and might reverse some or all of the constitutional reforms
if asked.


10. (C) On November 7, Speaker Moroz claimed to Ambassador
that political reform would not be undone. He suggested that
the coalition will eventually have 300 deputies, probably be
year's end, which will protect the reforms already passed and
allow the Rada to introduce new reforms. He believed that
one reason for the collapse of the coalition talks with Our
Ukraine was Yushchenko's unwillingness to pass a second
constitutional reform bill, 3207, that was introduced in the
December 2004 compromise and is still pending. This bill

KYIV 00004290 003 OF 003


would transfer power in the regions from
presidentially-appointed governors to regional assemblies.


11. (SBU) Note: Interestingly, the experts we talked to said
that in contrast to 4180 (which moved power from the
president to the PM),this second constitutional reform bill,
3207, is perfectly constitutional. It received a simple
majority vote in the previous Rada session, so if it receives
two-thirds Rada approval (300 votes) by the end of this Rada
session (January 12, 2007),then it will go forward
regardless of whether or not the Constitutional Court moves
to reverse some or all of the reforms in 4180.


12. (C) Moroz thought there was a fifty-fifty chance that
the Constitutional Court would review political reform, but
he did not believe the Court was independent, because the
current group of justices were appointed under certain
political conditions. Moroz warned that if constitutional
reform was reversed, it would lead to civil conflict. He also
said that he believed this was a problem not with the
President, but with his circle of advisers, who are trying to
convince him to reclaim Kuchma's powers.

Testing the Waters with an untested Court?
--------------


13. (C) Yushchenko has sent two petitions to the court to
interpret and clarify certain aspects of the reform, perhaps
as trial-runs on how the Court will rule. The first was
whether the Cabinet had the right to name the head of the
state arms broker, UkrSpetsExport, in the past always a
presidential nomination. The press reported in early
November that it could be at least six months before the
Court ruled. The second concerned defining the powers of the
Minister of Internal Affairs and to whom he would report.
Similarly, Tymoshenko told AS Fried in November that she was
taking several smaller issue to the Court before trying to
tackle constitutional reform as a whole. First, she had
petitioned the Court to rule on imperial mandate--making Rada
seats property of the factions, not the MPs, so that she can
remove defectors and keep her faction strength intact.
Later, she planned to ask the Court to declare the formation
of the Yanukovych government invalid due to its formation
after the constitutionally-mandated time frame.


14. (SBU) Both Martynenko and Shevchuk assessed the new
complement of Constitutional Court judges, especially the
Yushchenko appointees, as very professional, and Shevchuk
praised new Chief Judge Dumbrovsky. (Note: He was the
President of the Civil Chamber of the Supreme Court when the
court annulled the second round of the 2004 presidential
election.) Martynenko added that while said some of the new
judges were law professors, on the whole there were not
enough constitutional experts on the court.

Dueling Constitutional Commissions?
--------------


15. (SBU) On November 2, Yushchenko established a
constitutional commission, whose main functions are creating
a system of checks and balances, as declared in the
Universal, and drafting proposals for further constitutional
amendments. Yushchenko said that the Prime Minister, Rada
Speaker, and Rada faction heads were all invited to nominate
members of this commission, although there has been no
announcement yet of any nominations. On the same day,
however, Moroz presented a draft resolution to the Rada to
form its own constitutional commission to analyze bills
touching on constitutional reform. This commission would be
headed by First Deputy Speaker Martynuk and would include
constitutional law specialists from all factions. The Rada
voted to postpone a decision on Moroz's proposal. Either
commission could be used to deconflict competing versions of
key legislation written to define the new political system,
such as the two laws on the Cabinet of Ministers.
Alternatively, the institutional jousting in evidence in the
wake of implementation of political reform could continue in
competing efforts to shape further steps and review efforts
to date.


16. (U) Visit Embassy Kyiv's classified website:
www.state.sgov.gov/p/eur/kiev.
Taylor