UKRAINE: MOROZ, REGIONS PLAYING GAMES WITH THE

C O N F I D E N T I A L SECTION 01 OF 02 KYIV 000225

SIPDIS

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E.O. 12958: DECL: 01/31/2017
TAGS: PGOV PREL UP
SUBJECT: UKRAINE: MOROZ, REGIONS PLAYING GAMES WITH THE
CABMIN LAW

REF: KYIV 0135

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


1. (C) Summary. Rada Speaker Moroz and the Yanukovych
government have used "creative" interpretations of the
constitution and the Rada rules of procedure to try to bring
into force the controversial law on the Cabinet of Ministers,
despite presidential claims that the law was vetoed (reftel).
Their efforts appear to be an attempt to demonstrate
authority over the President and perhaps give him one last
chance to sign the new law and to force him to concede to
their position. Rada Speaker Moroz on January 29 posted the
law on the Rada website, but declined to publish it in the
two Rada printed publications which would make the law
official. On January 30, the Justice Ministry included the
law on its registry of all legal acts, but both the Rada and
the government have been vague about whether the law is
actually in force. At the same time, Moroz claimed the Rada,
which comes back into session February 6, was preparing
amendments to the law to remove provisions not compatible
with the Constitution.


2. (C) Comment. It seems that Yushchenko's second veto of the
CabMin law on January 19 (the Rada overrode his first veto on
January 12),which his team argues is legal justified on a
technicality (the January 12 text differed slightly from the
December text he had already vetoed),has frustrated the
majority coalition. Even after Yushchenko's veto claim,
Moroz continued to seek Yushchenko's signature on the January
12 bill, despite the Rada Speaker's right to sign and
promulgate a law himself in the absence of Presidential
endorsement, if he felt the president had no right of veto.
Moroz's hesitation suggests that he knows he may be on
legally and constitutionally shaky ground. In response,
Moroz has interpreted the Rada's rules as he sees fit; his
actions have been backed by the Prime Minister's office and
the government, who also insist the law is coming into effect
one way or another. However, the fact that both Moroz and
the Yanukovych team are offering to walk back the most
controversial clauses in the law, if Yushchenko will
cooperate, suggests that the coalition is not fighting to
preserve the law as it currently stands, but may be using it
as one more show of political one-up-manship vis-a-vis
Yushchenko. With less than a week left before the new Rada
session opens on February 6, it is clear that the coalition
is looking for at least a symbolic victory on this issue.
End summary and comment.

Loopholes and Fine Print
--------------


3. (SBU) Article 94.4 of the constitution states that if the
President refuses to sign a law that has been passed by the
2/3 majority required to override a veto, the Speaker is
obligated to sign the law, promulgate it, and publish it.
While constitutionally, Moroz could have done so as early as
January 22, he delayed the decision to promulgate or publish
the law, finally posting it on the Rada website on January

29. Article 94.5 states that a law enters force ten days
from the day of its official promulgation, but not prior to
the day of its publication. Article 134 of the Rada Rules
of Procedure--not itself a law but a powerful set of
regulations--states that to be official, a law must be
published in one of two Rada publications: "Holos Ukrainy" or
"Verkhovna Rada Bulletin." Presidential representative to
the Rada Roman Zvarych cited this rule as the reason why they
were not recognizing the law as having been promulgated.


4. (C) Moroz and PM Chief of Staff Lyovochkin complained
separately to Ambassador in late January that the
Presidential Secretariat was playing games with the veto.
The official explanation for Yushchenko's second veto--after
the override vote of his first veto--was that the texts
differed between the original law sent to Yushchenko on
December 21 and the law sent to him after the override vote
on January 12. Moroz explained this to Ambassador on January
23 as simply a misprint, one that the Presidential
Secretariat knew had happened. According to Moroz,

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Secretariat Chief Baloha had told Moroz that he wanted to

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give Yushchenko the misprinted version so that they would
have a loophole to allow a second veto. On January 23,
Lyovochkin told the Ambassador that the presidential team's
legal argument--that the final draft of the CabMin law
forwarded to the President had not been identical to the
first version the President had vetoed--was silly, a child's
game, and not presidential.


5. (C) Comment: Silly or not, our understanding is that a law
in Ukraine is the physical document signed by the Rada
Speaker and President. Even if Moroz unwittingly signed a

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misprinted document before passing it to the Presidential
Secretariat, Yushchenko appears to have a legal leg to stand

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on, confirmed by a 1998 Constitutional Court ruling cited by
his team.

Compromise Possible?
--------------


6. (SBU) Yushchenko's consistent position since December has
been that he wants a new, compromise CabMin law adopted. He
sent the Rada a number of changes to the current law, which
would remove the most egregious infringements of his power
(see reftel for discussion of the law). Moroz publicly
admitted that there might be some unconstitutional aspects of
the law that the Rada would be willing to change, but only on
its terms: Yushchenko should first sign the January 12 law,
and only then would the Rada adopt the amendments. In fact,
Moroz told the press on January 29 that he was already
working on the changes--the amended law would not include
nomination of the prime minister and defense and foreign
ministers by the coalition in the case of the President
choosing not to nominate a candidate within 1 days, as well
as one of the contentious issues concerning countersigning
documents. However, he maintained that the amendments could
not be adopted until the law comes into effect; absent the
publishing of the law in an official Rada publication, that
implies Yushchenko agreement either to sign the January 12
law or retract his second veto/referral of the law back to
the Rada.


7. (C) In a January 22 meeting, Lyovochkin told Ambassador
that Yanukovych had proposed to Yushchenko that, if the
President agreed to sign the new CabMin law, the Rada would
draft a new bill to amend the CabMin law to take into account
eight suggestions that the President had made. Justice
Minister Lavrynovych echoed this sentiment publicly on
January 31, claiming it was not possible to hold a revote on
a law already in force. Instead it was necessary to
acknowledge the law as enacted, then pass amendments as
separate legislation.

End Game: Symbolic Victory
--------------


8. (C) Comment: For all their confident bluster, the Rada and
government are dancing around the rules for officially
promulgating/publishing the law. There is no legal
compulsion why Yushchenko as President must sign the Cabinet
of Ministers law; if the second veto were invalid, in the
absence of a presidential signature, Moroz has full
constitutional authority to promulgate and publish the law,
making it official. Assuming that people ignore the second
veto and the Rada does pass the amendments that Yushchenko
wants, a presidential signature on the original law would
appear simply to be a sign of victory for the coalition in
the ongoing political posturing. Although the coalition,
especially the PM's team, continues to insist that they want
a broader coalition that includes Yushchenko and Our Ukraine,
it seems clear that they would prefer that such a coalition
be on their terms.


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