UKRAINE: COALITION PUBLISHES, SEEKS TO AMEND,

C O N F I D E N T I A L SECTION 01 OF 03 KYIV 000361

SIPDIS

SIPDIS

E.O. 12958: DECL: 02/15/2017
TAGS: PGOV PREL UP
SUBJECT: UKRAINE: COALITION PUBLISHES, SEEKS TO AMEND,
CABMIN LAW WITHOUT PRESIDENTIAL BUY-IN

REF: A. KYIV 0225


B. 06 KYIV 4435

C. KYIV 0135

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


1. (SBU) Summary. The controversial Law on the Cabinet of
Ministers, which tips the balance of power toward the Prime
Minister at the President's expense, continues to be a
political football on Kyiv playing fields. The February 2
decision by the Rada (parliament) and Government to
officially publish the law as passed January 12, thereby
brought it into force, without meeting President Yushchenko's
calls for compromise or acknowledging his claim to have
vetoed the law. Yushchenko has appealed the law to the
Constitutional Court, both on substantive and procedural
grounds. He requested that the Court give the appeal "urgent
status", which would speed up the timeline for issuing a
ruling. When the Rada came back into session February 6, one
of its first acts was to consider a bill with amendments to
the law introduced by Regions MP Yuriy Miroshnychenko who
claimed they were based on Yushchenko's requested changes for
the law; the bill was approved in its first reading on
February 9 and was referred to committee. The President's
representatives have refuted Miroshnychenko's claims, saying
that Regions wanted to give the air of being cooperative,
while amending the law in ways that do not satisfy
presidential concerns.


2. (C) Comment. Despite talk from the President and Prime
Minister's sides in January and early February that a
compromise was desired, the Rada coalition chose to pass the
law as it was, put it into force, and then unilaterally amend
it, rather than cooperate on the law early on and hold a new
vote, or work together on amending the text. It seems to be
a point of pride with the coalition to demonstrate that
Yushchenko's second veto held no legal validity and that they
fully control legislation of laws (reftel A). Nonetheless,
if the coalition moves ahead in amending the law
"unilaterally," Yushchenko still can veto it -- the unknown
is whether Tymoshenko might be convinced to vote again for an
override. While the Constitutional Court deliberates, the
new unamended CabMin law remains in effect and for at least
the near-term, gives Prime Minister Yanukovych a leg up on
President Yushchenko. End summary and comment.

Who Did What When? A CabMin Law Timeline
--------------


3. (SBU) The path that the controversial legislation has
followed has been complicated by political machinations,
constitutional challenges, and pending judicial
interpretations. In the fall of 2006, two drafts of the bill
were introduced in the Rada--one written by the CabMin and
the other by the Presidential Secretariat (reftel B). The
CabMin's version was adopted by the Rada on December 21,

2006. Yushchenko vetoed the bill seven days later. On
January 12, 336 Rada MPs voted to override the veto. However,
due either to technical error or conscious intent, the text
of the law approved during the veto override in January
differed from the text of the original law, thereby
technically making it a different piece of legislation under
Ukrainian law. On January 19, Yushchenko again vetoed the
law, arguing he was vetoing a second--and different--CabMin
law. The Presidential Secretariat also obtained a
questionable ruling from a municipal court judge in
Mukacheve, the hometown of Presidential Secretariat Head
Viktor Baloha, prohibiting Speaker Moroz from promulgating
the law (note: the judge was subsequently fired). After
weeks of hemming and hawing and ignoring the question of
Yushchenko's second veto, Speaker Moroz and the Cabinet first
unofficially promulgated the law on the internet and finally
published it officially in the Rada and Government's
designated periodicals on February 2, bringing the law into
force.

Yushchenko's team: Amending the Law is No Compromise
-------------- --------------


4. (SBU) During the Rada recess, Speaker Moroz signaled
recognition that some clauses in the law in fact were in
conflict with Constitutional norms, suggesting that the bill
would be amended in the session starting February 6. Regions
MP Yuriy Miroshnychenko introduced a bill of proposed
amendments to the CabMin law, which he argued incorporated
the eight principles Yushchenko requested for changes in the
law. On February 9, Miroshnychenko's bill passed its first
reading with 240 votes in favor and was sent to committee.
The majority of Yuliya Tymoshenko's BYuT opposition deputies,
the critical bloc in the override of the President's veto of
the original legislation, abstained from the vote, implying

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that their future stand on the amendments was open to
negotiation. MPs from the pro-presidential Our Ukraine
faction Yuriy Kluchkovskiy and Anatoliy Matviyenko claimed
the amendments did not meet Yushchenko's concerns.
Presidential representative to the Rada Roman Zvarych said
that the Rada's adoption of Miroshnychenko's amendments
reflected the coalition's desire to seem like it was
cooperating with Yushchenko without actually cooperating.
Yushchenko himself said on February 13 that Miroshnychenko's
amendments were not worth commenting on because they did not
bring any balance or harmonization to the current political
situation.


5. (C) Comment. Since the bill on amending the law has only
been passed in its first reading, the possibility remains
that it could be further amended in committee before a second
vote. If Regions wanted to compromise, the committee in
charge of the bill--chaired by Regions MP Tikhonov--could
address Yushchenko's concerns, but this does not seem likely.
Yushchenko's repeated public and private statements in the
past month that he had reached agreement with Yanukovych to
modify the law have proved each time to be wishful thinking,
as Regions repeatedly pushed the ball farther down the road.
Even so, Yushchenko still has his veto and does not have to
accept the amendments as passed -- unless Yuliya Tymoshenko
makes another tactical decision to join with the Government
and vote for an override. Interestingly, the timing of the
amendments was not universally approved of by the coalition.
Socialist MP Yaroslav Mendus, Speaker Moroz's right-hand man,
said that the Rada should not have examined Miroshnychenko's
bill until the Constitutional Court (CC) ruled on the
original law; nonetheless Regions pushed the first reading of
the amendments bill through. End comment.

Yushchenko Turns to Constitutional Court, Again
-------------- --


6. (SBU) Adding to the already overburdened CC docket,
Yushchenko appealed the CabMin law on both substantive and
procedural grounds. Knowing that the CC has more than 80
cases piled up (in large part due to the 10 months it went
without judges in 2005-2006),Yushchenko asked the Court to
give this appeal "urgent status". According to the
constitution, the law on the CC, and the CC's rules of
procedure, if a request for urgency is made, a judge or panel
of judges will consider the request and then the whole CC
will vote on whether to grant the urgent status. Once the
status is granted, the Court must rule within 30 days.
However, there is no time limit for how long the CC has to
decide whether or not the case is urgent. Given the
bureaucratic procedures of the CC, it could be a slow
process. Presidential representative to the Court Volodymyr
Shapoval said publicly on February 12 that a panel of judges
was considering the request.

Remaining Contentious Clauses and Miroshnychenko Amendments
-------------- --------------


7. (C) Ref C outlines the key clauses of the CabMin law,
especially those that may be unconstitutional in reducing the
powers of the presidency and National Security and Defense
Council. While Miroshnychenko's amendments are aimed at some
of these articles of the law, they do not actually appear to
improve the legislation or to meet Yushchenko's expressed
concerns. The main issues of contention are:

--Nomination of the Foreign and Defense Ministers. The
current law says that if the President does not nominate the
two ministers within a 15-day timeframe, the Rada coalition
has the right to name them. This seems to be the most clear
violation of the constitution, which explicitly gives the
right of nomination to the President. Miroshnychenko's
amendment does not remove the 15-day limit, but it adds the
clause that if the Cabinet has 2/3 of its ministers approved,
then the Cabinet is considered operational. We believe that,
given the likelihood that eventually the CC will strike down
the 15-day limit, this language is an attempt to avoid a
scenario, described by some in Our Ukraine, in which, if a
new government were formed, Yushchenko could refuse to name a
new FM or DefMin and use that as a pretext to declare the
Cabinet not formed and dismiss the Rada.

--Nomination of the Prime Minister. The law says that if the
President refuses to submit the name of the PM suggested by
the coalition to the Rada for a formal vote within 15 days,
the coalition can make the nomination itself. Miroshnychenko
did not amend this article.

---Dismissal of Ministers. Article 19 of the existing law
gives sole dismissal authority to the PM, eliminating any
possible differentiation between the dismissal procedures

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used against the two ministers nominated by the President and
the rest by the coalition/PM. Miroshnychenko's amendment
clarifies that the President and the Rada majority coalition
can also fire the FM/DM; the coalition would have the right
to fire any minister.

--Deputy Ministers. Article 23 gives the Cabinet the right
to appoint and dismiss all deputy ministers, which has been
another point of contention; Yushchenko had argued that the
President, as the guarantor of national security, should
appoint deputy ministers in the Foreign, Defense, and
Interior Ministries. Miroshnychenko's amendments would allow
the President to consult on nominations for the Foreign and
Defense Ministries.

--Directives to the Cabinet. Article 29 states that
officials of the NSDC, Presidential Secretariat, and other
agencies formed by the President are not allowed to give
orders to the Cabinet of Ministers or members of the CabMin
or interfere in their activities. However, article 207 of
the Constitution states that the NSDC controls the activity
of bodies of executive power in the sphere of national
security and defense. It is our understanding that the
constitution empowers the NSDC to issue direction to the
CabMin within its competencies; article 29 of the CabMin law
would thus seem to violate the constitution. Miroshnychenko
did not amend this article.


8. (C) Bio Note: Miroshnychenko is an interesting figure with
an ever rising profile in both the Rada and the media. The
36-year-old businessman, born in Russia, is serving his first
term in the Rada. During the 2004 presidential elections, he
formed a youth movement that was meant to compete with the
orange youth party Pora, a move which reportedly gained him
his spot on the 2006 Regions party list (119). In the past
year, he has made an effort to involve himself in a variety
of activities that bring him in contact with the U.S.
Embassy--he sits on the US interparliamentary group and the
Gongadze commission, and has been trying to rekindle a
environmental project that the Embassy ended years ago--but
he does not always seem constructive. He claims that an
Embassy-organized November 2006 trip to Brussels opened his
eyes to NATO, and his public comments since have been
cautiously constructive, but Rada colleagues tell us
privately that he remains strongly anti-NATO. Articulate and
energetic, he seems poised to replace recently deceased MP
Yevhen Kushnaryov as the provocateur of Regions, writing
hard-line legislation that the party sometimes uses as its
starting off point for negotiations with Yushchenko. For
example, he recently proposed legislation which would abolish
the position of NSDC Secretary.


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