Identifier
Created
Classification
Origin
07KYIV1195
2007-05-18 15:12:00
CONFIDENTIAL
Embassy Kyiv
Cable title:  

UKRAINE: BALOHA SUGGESTS THAT TIME RUNNING OUT FOR

Tags:  PGOV PREL UP 
pdf how-to read a cable
VZCZCXRO9993
PP RUEHDBU
DE RUEHKV #1195/01 1381512
ZNY CCCCC ZZH
P 181512Z MAY 07
FM AMEMBASSY KYIV
TO RUEHC/SECSTATE WASHDC PRIORITY 2367
INFO RUEHZG/NATO EU COLLECTIVE
RUCNCIS/CIS COLLECTIVE
RUEHLMC/MILLENNIUM CHALLENGE CORP WASHDC
C O N F I D E N T I A L SECTION 01 OF 04 KYIV 001195 

SIPDIS

SIPDIS

E.O. 12958: DECL: 05/18/2017
TAGS: PGOV PREL UP
SUBJECT: UKRAINE: BALOHA SUGGESTS THAT TIME RUNNING OUT FOR
POLITICAL COMPROMISE

REF: KYIV 001180

KYIV 00001195 001.2 OF 004


Classified By: Ambassador for reasons 1.4(a,b,d).

C O N F I D E N T I A L SECTION 01 OF 04 KYIV 001195

SIPDIS

SIPDIS

E.O. 12958: DECL: 05/18/2017
TAGS: PGOV PREL UP
SUBJECT: UKRAINE: BALOHA SUGGESTS THAT TIME RUNNING OUT FOR
POLITICAL COMPROMISE

REF: KYIV 001180

KYIV 00001195 001.2 OF 004


Classified By: Ambassador for reasons 1.4(a,b,d).


1. (C) Summary. Head of the Presidential Secretariat Baloha
told the Ambassador that there were now two options on the
table for a political compromise: either on Monday, May 21,
the President, PM and their teams would announce the date for
early elections and the contents of the legislative package
to be passed immediately afterwards, or, if there was no
agreement, the President's team would move to Plan B and call
a May 23 National Security and Defense Council (NSDC)
meeting, during which the President would unilaterally decree
a new election date, followed by the resignations of all Our
Ukraine and BYuT deputies to put the Rada out of business.
According to Deputy Presidential Secretariat Head Chaliy, the
President and PM met for four hours on May 17, and on May 18,
EU Foreign Policy chief Solana had telephoned Yushchenko to
urge resolution of the standoff. The Working Group continues
to meet as well. The KYIV rumormill had targeted a scheduled
May 18 meeting of the National Security and Defense Council
(NSDC) as the next likely showdown between President
Yushchenko and Prime Minister Yanukovych--with talk that the
President would try to dismiss the Government or declare a
state of emergency--but the meeting was canceled at the last
minute. Current and former members of Yushchenko's national
security team told us privately that such plans were
unconstitutional and beyond the pale, and indicated that
Chief of Staff Baloha was now the only stream of information
reaching the President. Meanwhile, a reinvigorated
Constitutional Court went back into session--assigning
consideration of Yushchenko's second decree to a judge
nominated by the Communists, recognizing recently-fired Judge
Pshenychniy as the Acting Chairman, and approving the
resignation of Judge Dombrovskiy as Chairman of the Court.


2. (C) Comment. We've been down this road before and it is
not yet clear that the President and Prime Minister will
succeed in sealing the deal on a political compromise on may

21. One thing that is now clear is that the President's team

has already made up its mind that it will not recognize or
honor any decision of the Constitutional Court; as Baloha
told the Ambassador, we are no longer seeking both a
political and a legal compromise, only a political agreement.
The last minute cancellation of the NSDC meeting suggests
that the threats of a drastic step may have been a
negotiating tactic, but were never intended to be
implemented. On the other hand, Yushchenko could have simply
backed off from what would have been a blatantly undemocratic
move. It is clear that there is frustration among members of
the Yushchenko team who are not in the inner circle that
Baloha is pushing the President in a destructive way. The
Court's actions, all taken on a day when Yushchenko's three
nominees were absent, give credence to the comments
Yanukovych made to the Cabinet on May 16--that he expects a
favorable ruling in the near future. End summary and comment.

Baloha Outlines the Plan Ahead
--------------


3. (C) Fresh from a meeting with President Yushchenko,
Baloha began a May 18 meeting with the Ambassador
defensively, arguing that since the President and PM's May 4
agreement to hold pre-term elections, announced publicly by
both sides, Yushchenko had not taken any steps that violated
this agreement in any way. Baloha claimed that since May 14,
Yushchenko and Yanukovych had met three times (most recently
May 17) and that the PM had started seeking other ways than
pre-term elections to resolve the political standoff.
According to Baloha, there had been no misunderstandings
about the May 4 deal -- both sides had agreed that there
would be pre-term elections and both had agreed that the
Working Group should deal with the issues of establishing a
date for the elections and agreement on the necessary
legislative documents to be concluded by the Rada as part of
a political deal. (Note: Baloha also confirmed that the
President's team was committed to including necessary WTO
legislation, passage of the bill on military exercises and
amendments to the budget that would include funding for the
election, increased social benefits and the work of Ukraine's
MCC team. End note.) In Baloha's view, the only issue left
was the date of the early elections. The subject of the
discussion was now focused on finding the legal solution for
agreement on an election date, acceptable to both the
President and the PM.


4. (C) Baloha said that there were now two options on the
table for the President's team. The first, the positive
scenario, was that on May 21, the President, PM and their
teams would gather in the President's office at 1 pm and

KYIV 00001195 002.2 OF 004


reach agreement on an election date. They would then go to
the Rada on Tuesday, May 22, and vote on the minimum package
of legislation required to begin the pre-election campaign
and all other draft legislation included in the package. In
Baloha's view, all the legislative decisions would be taken
by week's end and there would be no bargaining. At that
point, all the players would congratulate each other and
Ukrainian institutions for having come through the crisis.


5. (C) Baloha's second scenario was the negative flip side.
If there was no agreement by May 21, the President would
convene an NSDC meeting on May 23 to discuss the situation.
Then on May 24, 165 Rada deputies from BYuT and OU would
begin the process of resigning from their factions in order
to deprive the Rada of a quorum. In Baloha's assessment,
this would mean that the Rada would automatically cease to
exist. The President would then simply decree the date of
the preterm elections and the Central Election Commission
would begin its work in earnest. In response to the
Ambassador's direct question, Baloha confirmed that in this
scenario, although the Rada would be out of business, the PM
and the Cabinet would continue to function in acting status
until the elections took place and a new coalition was
formed. Baloha stressed that all of this would be done in a
"purely constitutional way."


6. (C) Comment. Although Baloha argued that option 2 was
completely constitutional, the actual text of the
constitution is less clear about what happens to the Rada in
the case of a lack of quorum. According to Article 82, "the
Verkhovna Rada of Ukraine is competent on the condition that
no less than two-thirds of its constitutional membership has
been elected." Following the second option would clearly
lead to constitutional and legal challenges. End Comment.


NSDC Threats
--------------


7. (C) The President's team, especially Deputy Head of the
Presidential Secretariat Chaliy, had floated the idea that
they might be forced to take drastic measures at an NSDC
meeting scheduled for May 18 if they did see progress from
the Yanukovych team before then (reftel). Yushchenko even
alluded to such a possibility in a May 16 speech. Among the
possible outcomes whispered about were that Yushchenko would
try to dismiss the government or declare a state of
emergency. Former NSDC Secretary Haiduk told Ambassador May
17 that he had heard that Yushchenko was considering
dismissing the Yanukovych Government and also might dismiss
members of the Central Election Commission and possibly add
all 24 governors, who are presidential appointees, to the
NSDC. Dismissing the Cabinet, in his view, was blatantly
unconstitutional. SBU Chief Nalyvaichenko told Ambassador
that Baloha, former OU head Bezsmertniy, and erstwhile
Yushchenko financial backer Zhvania were meeting in the
President's office each morning to plan their activities.
Their current plan to get rid of the Yanukovych government
and call new elections was to have a former minister bring a
suit against the Yanukovych government alleging it to be
illegitimate; a friendly court would agree and the Yekhanurov
government would be reinstated. All of this was totally
unconstitutional, according to Nalyvaichenko.


8. (SBU) However, at the last minute the NSDC meeting was
canceled. NSDC Secretary Plyushch told the press that he had
recommended that the meeting be postponed until the working
group was finished with its compromise package, so that the
NSDC members would have something concrete to vote on.

NSDC Strategy Criticized
--------------


9. (C) Acting SBU Chief Nalyvaichenko, Defense Minister
Hrytsenko, and former NSDC Secretary Haiduk all told
Ambassador separately on May 17-18 that using the NSDC to
further Yushchenko's side in the struggle with
Yanukovych--either by declaring a state of emergency,
dismissing the government, or simply decreeing the election
forward--was at a minimum a terrible idea and at worst
unconstitutional and undemocratic. Hrytsenko said that using
the NSDC in this manner was "crazy." Haiduk said that the
NSDC is supposed to be advisory council for the President,
not his political machine. Nalyvaichenko and Haiduk both
argued that Yushchenko has been occupying two roles--that of
leader of the country or guarantor of the constitution, but
also leader of the opposition. Haiduk said that Yushchenko
cannot negotiate in good faith and occupy both roles,
therefore Yushchenko flip-flops.


KYIV 00001195 003.2 OF 004



10. (C) Haiduk expressed his frustration with the amount of
pressure on the NSDC to become more political. He said that
he could not rule out that more Deputy Secretaries of NSDC
would resign in protest if asked to do something
unconstitutional, as he and First Deputy Secretary
Khoroshkovskiy had just done. He also thought Chaliy might
if pushed too far. (Embassy Note. On May 18, Chaliy
confirmed to the Ambassador that he would resign if the
President decided to cross the red line of asking for a state
of emergency or dismissing the government. End Note.)
Haiduk said that Yushchenko has one source of information
now, Baloha; Haiduk had been a dissenting opinion, but Baloha
et al could not tolerate this. He cited the examples that
Yushchenko refused to consult any experts about his April 2
and 26 decrees other than Shapoval and that Yushchenko's
negotiating team in the working group is all representatives
of OU and BYuT. The President, Haiduk argued, is not hearing
from neutral figures outside the opposition camp.


11. (C) Haiduk also shared the blame for the political crisis
with Yanukovych and the coalition, arguing that they provoked
the crisis in their grab for 300 MPs. Prior to May 16,
Haiduk said he had hoped that an agreement would be reached,
but Yanukovych's comments at CabMin meeting on May 16 showed
that he was rejecting the old agreements with Yushchenko
Haiduk had known Yanukovych for a long time--the PM was
always very careful with his words, and it was clear that he
was expecting a favorable CC ruling, maybe a cancellation of
the decree and early elections, soon, something he can use to
increase pressure on the President.


12. (C) Comment. It is interesting that three senior
members of the Yushchenko team--none of whom are in the
President's inner circle--expressed such uniform opinions,
even sometimes using the same phrases. It is clear that
presidential people not close to Baloha think the Chief of
Staff is leading Yushchenko down a bad path.

Tymoshenko: Coming Out Ahead
--------------


13. (C) Haiduk told Ambassador that he had just talked to
Tymoshenko and she clearly understands that a summer election
is inappropriate and that September is better. However, as
the opposition leader, she is pushing for as much as she can
get, which was normal. Her position was solid--sooner or
later she will get an election and all the negatives-- the
accusations of violating democracy, etc.--will fall on
Yushchenko's head. Nalyvaichenko opined that Yanukovych and
Tymoshenko would likely team up next year to find a way to
have presidential elections.

Constitutional Court: Back in Session
--------------


14. (C) The controversy heightened around the Constitutional
Court May 17-18, as it once again took up consideration of
Yushchenko's decrees. On May 17, the Court's press service
first announced that Chairman Dombrovskiy had resigned his
chairman position, although he seems to have retained his
seat as a judge. Shortly thereafter, the Court press service
announced that Dombrovskiy's deputy, Judge Pshenychniy, would
replace him as Acting Chairman, even though Pshenychniy was
one of the three judges fired by Yushchenko in late
April/early May. Judge Shyshkyn a Yushchenko appointee, told
a USAID implementer that Dombrovskiy had not removed Stanik,
Pshenychniy, and Ivachenko from the Court's access list after
they were dismissed, permitting them unobstructed entry into
the court. The three judges cited a May 17 Luhansk local
court decision reinstating them as the reason . (Note. This
is the second local court to reinstate them. A Donetsk court
took the same step on May 14, but the decision was suspended
by a Donetsk appellate court. It is highly unlikely that any
of these courts has jurisdiction in the case. End note).


15. (C) The Court also announced that it was now considering
Yushchenko's April 26 decree and that the reporting judge
would be Maria Markush, a judge nominated by the Communists
on the Rada's quota. Judge Shyshkyn a Yushchenko appointee,
told us privately on May 17 that all three Yushchenko
appointees were out of the Court on May 17, meaning they were
absent for the decisions regarding Dombrovskiy's resignation,
Pshenychniy's promotion, and assigning the new case to
Markush. Baloha told the Ambassador that given the current
CC composition, the President and his team would not
recognize any CC decision as valid. Therefore, there was no
reason to look for a legal agreement; only a political
compromise would resolve the situation. Members of OU have
also announced that they no longer recognize the Court as
valid and have called for all the judges to be replaced.

KYIV 00001195 004.2 OF 004




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