UKRAINE: NEW ELECTIONS OR BROAD COALITION? ALL

C O N F I D E N T I A L SECTION 01 OF 04 KYIV 000746

SIPDIS

SIPDIS

E.O. 12958: DECL: 03/29/2017
TAGS: PGOV PREL PINR UP
SUBJECT: UKRAINE: NEW ELECTIONS OR BROAD COALITION? ALL
EYES ON YUSHCHENKO


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


1. (C) President Yushchenko, who has increasingly few options
in his losing struggle with Prime Minister Yanukovych, is
being pushed hard by his team to disband the Rada, but the
President has not yet abandoned hope of reaching
accommodation with Yanukovych. At the urging of opposition
leader Tymoshenko and Head of the Presidential Secretariat
Baloha, Yushchenko on March 28-29 published letters and a
draft decree threatening the Rada with action (presumably
dismissal) if mass shifting of MPs into the coalition
continued. He argued that the MPs were acting
unconstitutionally and threatening the political stability of
the country; as guarantor of the constitution, he must
counter this. Privately, however, PM Chief of Staff
Lyovochkin told us on March 28 that the two Viktors held a
more than four hour meeting to try to reach accommodation on
a new, broad coalition and presidential representative to the
Rada Zvarych announced that a new round of talks were set for
April 2. Baloha said that Yushchenko had asked him to offer
the PM a way out with a joint presidential-PM-Speaker appeal
to the Constitutional Court to approve the constitutionality
of imperative mandate and the unconstitutionality of the
current CabMin law. In addition, Rada action on a package of
new legislation on the presidency, CabMin, and opposition
would restore the balance of power between branches of
government and in the Rada. Foreign Minister Yatsenyuk
seemed skeptical of Baloha's plan to approach to the CC,
advocating a political settlement in the Rada, and undertook
to consult with the PM.


2. (C) Comment. With two key allies of the President, former
Prime Minister Yekhanurov and financial backer Poroshenko,
threatening to jump to the coalition and Tymoshenko,
Lutsenko, and part of Our Ukraine planning a protest on the
Maidan on March 31, the pressure is on Yushchenko to decide
how he will end the stand-off. Our own calculations suggest
that if all the MPs in OU and BYuT who have the potential to
defect do so, the new National Unity Coalition will have a
slim 301 vote constitutional majority. However, we are not
convinced that Yekhanurov and Poroshenko would want to join
the coalition, as BYuT has argued they will, when they could
sit in the middle and trade their votes. Moreover, it is
hard to believe that some of these OU defectors would support
all of Regions's agenda, such as abolishing the presidency or
joining the Single Economic Space. The constitutional/legal
argument for new elections is questionable and an issue for
the Constitutional Court, although frankly we do not
anticipate a Court ruling. In the absence of Court
validation, if Yushchenko goes ahead with dissolving the
Rada, the way forward will be messy, contentious, and
potentially damaging to the country. But with power almost
fully consolidated in Yanukovych's hands, the President's
team feels their backs are up against the wall and are
clearly pushing hard for confrontation and new elections.
End summary and comment.

Tymoshenko: Dissolution is the Only Way
--------------


3. (C) On March 26, Tymoshenko told Ambassador that the
majority coalition will soon have 304 votes if something is
not done. She said that she had agreement from the people
around the President that new elections were the solution,
but she was not sure if Yushchenko himself was on board yet.
There was no way to stop MPs from defecting and there was no
time left to wait for Constitutional Court (CC) rulings.
Because the coalition was usurping power so quickly,
Yushchenko might need to move as soon as March 31 to disband
the Rada. Poroshenko had been offered the Ministry of
Finance if he came over to Regions's side and they might give
someone else the National Bank. The legal rationale for
disbanding the Rada would be Article 102 of the constitution,
which says that the President must protect the rights of the
people. (Comment. A stretch constitutionally.)


4. (C) Tymoshenko asked the international community to weigh
in with Akhmetov, Yanukovych, and Moroz to ask them to
cooperate with new elections and to keep everything peaceful.
Tymoshenko said she herself was in contact with Akhmetov and
Kluyev to give them a heads up, so they would not feel
threatened. She also asked for public support from
democratic states for what Yushchenko would do. Tymoshenko
also said that she would not try to get people into the
streets .(Note. She seems to have changed her mind on this
point since BYuT subsequently decided to organize the March
31 Maidan protest. End note.)

The President's Legal Argument
--------------


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5. (C) Yushchenko issued a letter to the Rada on March 28,
followed by a public statement on March 29 criticizing the
Rada for behaving in an unconstitutional manner and
questioning the parliament's legitimacy. The President's
team on March 29 also leaked a draft decree to the press
about dissolving the Rada. Yushchenko's representative to
the Constitutional Court Volodymyr Shapoval, a retired CC
judge, laid out his legal argument for dissolving the Rada
for the Ambassador on March 29. There have been gross
violations of the constitution, because MPs are not allowed
to leave their faction (article 81) and individual MPs may
not independently join the governing coalition, only factions
can be coalition members (article 83). He added that
articles 69 and 5 say the will of the people is expressed
through elections and no one may usurp that power--MPs
leaving the factions they were elected to is a violation of
those clauses and as guarantor of the constitution,
Yushchenko must protect the people's rights. He added that
politically, if Yushchenko doesn't respond and MPs continue
to violate the constitution, it sends a message that the
constitution is not important. Shapoval admitted that he did
not know if Yushchenko had accepted his argument, but
Yushchenko's team is clearly using constitutional language in
its public statements.


6. (C) Comment: In our reading of the constitution, the
formation of the new faction Independent Ukraine (OU and BYuT
MPs who defected) does seem to violate the constitution. The
issue of individuals joining the coalition depends on how one
reads the constitution. But we do not see how these
"violations" necessarily or directly connect to any existing
constitutional provision that gives the President the legal
right to dismiss the Rada. Shapoval acknowledged that that
was the case, which was why they were basing their argument
on more broadly-written articles, like 102. If the President
follows through with this approach, he will have to make a
political argument to Ukrainians about why he needed to take
this step to dissolve the Rada.

The Regions Point of View
--------------


7. (C) In March 28 meetings with Ambassador, PM Chief of
Staff Lyovochkin and Regions faction leader Bohatyreva
rejected the idea of early elections and criticized
Saturday's planned demonstration on the Maidan. They both
predicted that at this demonstration, Yushchenko would be
asked to dissolve the Rada. Lyovochkin argued that if a
faction expels an MP, that MP can join the coalition as an
individual. Bohatyreva concurred that the coalition itself
is made up of factions, but individuals from other factions
can vote with the coalition. Both doubted that the coalition
would get 300 full members, but that a CC ruling and a
constructive opposition would help clarify the situation.
Lyovochkin was clear that he believed disbanding the Rada was
illegal and Regions would see it as such. Bohatyreva said
there would be a meeting in the Rada on March 29 to discuss
how to respond to Yushchenko's letter. She said that he had
cited specific articles of the constitution and they would
have to weigh this seriously.


8. (C) However, Lyovochkin also told us that while Baloha and
Tymoshenko's people were working on the decree to dismiss the
Rada and recruiting protesters from across the country, the
President and PM were engaged in a more than 4 hour meeting,
trying to reach a compromise on forming a broad coalition.
He argued that the confirmation of Yatsenyuk as Foreign
Minister was proof that the two can cooperate. There was no
public report of the results of this meeting, but
Yushchenko's letter to the Rada was released to the press
immediately following it, which could indicate that nothing
was resolved. On the other hand, the British DCM in Kyiv
told us that they had just heard that Yushchenko and
Yanukovych might travel to Brussels together in April, also
raising the possibility of cooperation.

Yushchenko May Be Undecided...
--------------


9. (C) After the letter, the statement, and the draft decree,
Yushchenko gave a speech in Luhansk on March 29 where he
called on all citizens to respect the constitution. But he
stopped short of inflammatory language and instead called for
consultations among all sides. Later, his representative in
the Rada Roman Zvarych said that the PM, President, and
Speaker would meet on Monday April 2 at 2 pm.

...But His Team Wants to Fight
--------------


10. (C) At the same time that Yushchenko was calling for

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renewed talks, Baloha told the Ambassador that at the
President's order, he will meet with the PM to offer a way
out that entails two demands. The first demand is that the
President, PM, and Speaker all agree on a political position
that would include enforcing the imperative mandate at all
levels of government and invalidating the CabMin law. All
three would go together to the CC to have this position
affirmed. Second, the Rada leadership should agree on a
package of bills on the presidency, CabMin, and opposition
that together would both restore the balance of power in the
government and restore the Rada to a 236-212 balance. He
implied that if the PM does not accept these demands,
Yushchenko's team will take steps that include dissolution of
the Rada. The Ambassador suggested that an alternative
strategy would be for the President, PM, and Speaker to go to
the CC and just ask them to rule on the long list of cases
and then accept whatever the rulings were. Baloha and his
deputy Chaliy did not respond. They did suggest that this
crisis would be resolved either internally or with assistance
from the international community, perhaps from the G-7
ambassadors.


11. (C) Comment. Baloha and Chaliy's comments were not
reassuring and the demands seem designed to provoke a
negative reaction from the PM. Chaliy said that the current
struggle came down to legitimacy versus legality. He argued
that legitimacy was more important, although he and Baloha
reiterated multiple times that the President's team would not
do anything unconstitutional. Chaliy also said that they
could not control what the response would be from Tymoshenko
and Lutsenko if Yanukovych and Yushchenko made this
agreement, but that the March 31 People's Union Our Ukraine
conference and planned rally on the Maidan would be
important. It seems that Baloha is pushing hard on the early
elections and leading the charge on the President's side, but
what is less clear is whether the confrontation-averse
Yushchenko has bought into the fight.


12. (C) FM Yatsenyuk, until recently part of Baloha's team,
was clearly not part of the presidential team's strategizing,
but he told Ambassador that he used to be a lawyer and he was
skeptical that going to the Constitutional Court was the
right solution. It would be quicker and easier to work out a
political compromise in the Rada and pass new laws to resolve
the situation. He also thought laws on the presidency and
opposition were unnecessary. He said he would undertake to
talk to the PM before Baloha did.

The Disputed MPs in the Rada
--------------


13. (C) At the center of this constitutional fight are 43 MPs
who are waiting to see which side prevails before deciding if
they will stay in OU and BYuT or join the coalition. Some,
like Yekhanurov and Poroshenko, may still hope that
Yushchenko might go with them into the new coalition. If new
elections seem likely, MPs may stay with their blocs. If the
PM and the coalition prevail, they will likely switch their
allegiance. In response to Ambassador's question as to
whether these MPs will formally be in the coalition or just
vote with them, Tymoshenko and MP Nemyria argued that it is
not just a question of numbers, but of psychology. Regions
wants the President to know and see that they control the
Rada. BYuT MP Shvets echoed that argument--Regions needs to
demonstrate complete dominance, not just win votes on a
case-by-case basis. New elections, in our understanding,
seem constitutionally shaky right now, but the fact that
Yushchenko is even considering such a move suggests how much
he feels that he has few options left.

What Would 300 Mean?
--------------


14. (C) Tymoshenko and Shvets argued that a constitutional
majority of 300 MPs would allow Yanukovych to pass any policy
he wanted, such as giving status to the Russian language or
joining the Single Economic Space. They could even amend the
constitution to abolish the presidency. Shapoval thought the
danger lay in the fact that if Regions was allowed to collect
300 votes in violation of the constitution, it would send the
political message to the government and the people that the
constitution did not mean much--that would set a precedent
for future violations. Bohatyreva said that if the coalition
gained 300 members, they would not move to weaken or abolish
the presidency. She said that Yanukovych did not want to
move on the Russian language question because it was so
divisive, but he did not want to alienate his electorate.
(Note: Yanukovych said publicly on March 23 that if they had
300 votes, they would be obligated to give Russian a status.
End note.) Bohatyreva also assured us that Regions had no
intention of entering a customs union within the Single

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Economic Space.

Constitutional Court Footnote
--------------


15. (U) A former Constitutional Court judge announced on
March 29 that a collegium of CC judges (6 of the 18) had
rejected the President's petition to consider the
constitutionality of the CabMin law. He attributed this
decision to Yushchenko's decision to call the judges into his
office and ask them to take action, which they interpreted as
pressure. Normally, a collegium decision not to hear the
case means the full Court will not consider it, but the chief
judge can overrule the collegium. We will seek further
information about next steps.


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