Identifier
Created
Classification
Origin
07KYIV789
2007-04-04 15:54:00
CONFIDENTIAL
Embassy Kyiv
Cable title:  

UKRAINE: INTERPRETING THE CONSTITUTION: NO CLEAR

Tags:  PGOV PREL PINR UP 
pdf how-to read a cable
VZCZCXRO4776
PP RUEHDBU
DE RUEHKV #0789/01 0941554
ZNY CCCCC ZZH
P 041554Z APR 07
FM AMEMBASSY KYIV
TO RUEHC/SECSTATE WASHDC PRIORITY 1804
INFO RUEHZG/NATO EU COLLECTIVE
RUCNCIS/CIS COLLECTIVE
C O N F I D E N T I A L SECTION 01 OF 04 KYIV 000789 

SIPDIS

SIPDIS

E.O. 12958: DECL: 04/04/2017
TAGS: PGOV PREL PINR UP
SUBJECT: UKRAINE: INTERPRETING THE CONSTITUTION: NO CLEAR
VIKTOR IN POLITICAL CRISIS

REF: A. KYIV 784

B. KYIV 746

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 000789

SIPDIS

SIPDIS

E.O. 12958: DECL: 04/04/2017
TAGS: PGOV PREL PINR UP
SUBJECT: UKRAINE: INTERPRETING THE CONSTITUTION: NO CLEAR
VIKTOR IN POLITICAL CRISIS

REF: A. KYIV 784

B. KYIV 746

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


1. Summary and Comment. As Ukraine's political crisis
proceeds, both sides argue that they have the constitutional
and legal upperhand and are acting in support of democracy
and the rule of law. President Yushchenko has dismissed the
Rada, and his team maintains the Rada's powers have been
curtailed, while the Rada majority maintains his decree
disbanding the Rada is illegal, and it continues to work (ref
A). Prime Minister Yanukovych, Deputy Head of the
Presidential Secretariat Chaliy and opposition leader
Tymoshenko all called in the diplomatic corps on April 3-4,
in the wake of President Yushchenko's April 3 brief of G-7
Ambassadors, to make the pitch that his/her side was correct
and to ask for international support. Yanukovych said that
he is still seeking compromise but was ready to contest and
election win, while the President's team indicated that he
would insist on new elections, although the details on
implementation of the decree were open to negotiation.


2. (C) Comment: Our reading of the various constitutional
clauses and laws involved suggests that Yushchenko's decree
should be in effect as of April 3, the day of promulgation,
until/unless the Constitutional Court rules otherwise, and
that the Rada has the right to continue to work until a new
Rada is elected. What is open to serious question is whether
Yushchenko's decree is constitutional and whether the
constitution was violated by MPs shifting to the majority
coalition. These are questions are best suited for the
Constitutional Court to decide. However, given the Court's
reluctance to issue any rulings since it formed eight months
ago and the willingness of all sides, to varying degrees, to
adhere to a political resolution (either elections or a
compromise) if it meets their interests, the Court currently
appears unlikely to be the sole solution of this political
stand-off. Meanwhile, rumors ran rampant through Kyiv on
April 4 that Chairman of the Constitutional Court Chair
Dombrovskiy had resigned or was hospitalized (Note-untrue; he

chaired an all day session of the court judges at the court).
End summary and comment.

Constitutional and Legal Clauses: a brief primer
-------------- ---


3. (SBU) Note: A number of key constitutional articles form
the basis of the dispute over the legal basis for
Yushchenko's dismissal decree. The tension between explicit
and implied constitutional powers are being interpreted by
competing political forces to their advantage--a lack of
constitutional clarity that by all rights should be defined
by Ukraine's Constitutional Court. They include:


A. Disbanding the Rada: Article 90 lays out three specific
sets of circumstances under which the President has the right
to dismiss the Rada:
--if a coalition is not formed within one month of the new
Rada convening;
--if the Rada does not appoint a new Cabinet within 60 days
of the old Cabinet resigning; and
--if the Rada fails to hold a regular plenary session within
30 days of starting a session.

None of these conditions apply and Yushchenko's decree did
not cite Article 90. Instead the President team, backed by
opposition leader Tymoshenko, argues that Yushchenko's
constitutional power to disband the Rada lies in the implied,
broad powers of articles 102 and 5, in combination with
Articles 83, 69, and 106. Article 102 states that the
President is the guarantor of Ukraine's sovereignty,
territorial integrity, observance of the constitution, and
human and citizens' rights and freedoms. Article 5 states
that that the people are the only source of power and
sovereignty in Ukraine and that no one shall usurp that
power. Article 69 states that the expression of the will of
the people is exercised through elections. Article 83, para
six, states that, according to election results and on the
basis of common ground achieved between various political
positions, a coalition of parliamentary factions shall be
formed in the Rada.


B. Status of dismissal decree/Rada MPs:
--There is nothing in the Constitution, the law on the
Constitutional Court (CC),or in the CC rules that would
suggest that the President's decree could be suspended
pending a CC ruling. As with the controversial CabMin law,
the decree should be considered in effect until the Court
ruled otherwise.


KYIV 00000789 002 OF 004


--However, Yushchenko's decree includes the clause: "Proposes
to People's deputies of Ukraine to continue to fulfill their
authorities as deputies that are not directly linked with the
authority of the Verkhovna Rada." In other words, they could
retain their status as MPs (with the requisite perks),but
should relinquish their right to legislate.

--In contrast, Article 81, para three, states that the
preterm termination of Rada deputies, caused by the preterm
termination of the Rada as a whole, will take effect on the
date of the first meeting of the new convocation of the Rada.
This means that Rada MPs are empowered to continue to work.
(note: Rada Committees chaired by opposition MPs started to
dismantle themselves April 4, following the Presidential
decree interpretation).


C. Formation of the coalition majority/MP status:
--Yushchenko has repeatedly cited Article 83, which mandates
that, according to election results, a coalition shall be
formed by factions, and Article 81, which states that an MP
loses his seat in the Rada if he withdraws from the faction
to which he was elected. These articles are at the center of
the debate whether the current majority now represents an
unconstitutional formation and whether factions have the
right to expel MPs who switch sides.

PM: Solution Lies in Compromise or Constitutional Court
-------------- --------------


4. (C) On April 4, PM Yanukovych told the dip corps that if
an agreement could not be reached with the President,
implementation of the decree should wait for the CC to take a
decision, which he hoped would take no longer than one month.
He saw no constitutional grounds for the President's decree;
article 90 was the only way to dissolve the Rada early.
Yushchenko had placed personal political interests over the
interests of the country, he asserted, adding that he wanted
a win-win situation. He claimed Yushchenko had not really
consulted with the Rada and did not warn them about possibly
dissolving the Rada, suggesting the dismissal scenario had
been planned. Yushchenko's actions could split Ukraine, he
warned; people did not want another election. However, if
elections occurred, Regions would compete and win.
Yanukovych maintained that the free flow of MPs between
factions and from the opposition to the coalition was legal,
but suggested the Rada might find a compromise via the Rada
Rules under which all factions would comply with a formula
for factions sizes that could be the equivalent of an
imperative mandate.


5. (C) Yanukovych asserted that the way out of the current
crisis was dialogue and compromise, perhaps leading to a
broad coalition. Negotiations were better than new
elections. MPs who were leaving OU and BYuT disagreed with
the opposition's plans to destabilize the Rada and to hold
new elections, he stated. The crisis was all about certain
people (implying Tymoshenko),who wanted to get back into
power and were willing to disrupt the country to do so. All
sides should accept a CC ruling, just as he had done with the
Supreme Court ruling in 2004 (note: overturning the falsified
second round). Yanukovych said he would argue to Yushchenko
that he should cancel his decree for the benefit of the
people--he claimed to have seen in Yushchenko's eyes that the
President was not comfortable with the situation, but those
around him were pushing him. If there were new elections,
the President (i.e., Our Ukraine) would lose more than he had
now.

President's Team: New Elections Only Way to End Crisis
-------------- --------------


6. (C) Deputy Head of the Presidential Secretariat Chaliy
argued to the dip corps earlier on April 4 that: the shifting
of MPs was a revision of the 2006 elections; the
Constitutional Court had done nothing to review the
unconstitutional laws adopted by the Rada; and the Universal
had not been implemented. With all the constitutional
concerns left unresolved, elections were the only remaining
democratic option. Yushchenko would not back down from the
decree, but he was flexible on how it would be
implemented--some aspects of preparing for the elections were
still open to negotiations. Yushchenko and Yanukovych had
been meeting (note: four hours on April 3),and the President
was trying to convince the PM to cooperate on new elections.
The decree was constitutional and in force; the Rada had the
right to appeal it to the CC, but until there was a ruling,
the decree would remain in effect.


7. (C) Chaliy also argued that the Rada was not a valid body
at this point. The decree was clear that its powers have
been canceled; in contrast, the Cabinet was still completely

KYIV 00000789 003 OF 004


legitimate. (note: Yushchenko has also emphasized publicly
that he did not recognize the Rada as a valid, functioning
institution. Defense Minister Hrystenko, one of two
Yushchenko-appointed members of the Cabinet, refused to
appear in the Rada on April 4 to present a bill on
international military exercises because he was upholding
Yushchenko's line that the Rada was invalid. The bill
subsequently only received 5 votes in favor, 65 against, with
191 other coalition deputies not casting ballots and 189
opposition MPs not present--possibly an important and early
casualty of this standoff. End note.)


8. (C) Chaliy later told Ambassador that Yushchenko had told
a group of international journalists April 4 that he would
accept the CC's decision as legally binding, but he hoped
that decision would be based on reasoned legal opinions and
not on political pressure. Nevertheless, even if the CC did
rule, which the President's team doubted, the crisis still
required a political resolution. (Note. This would be
similar to the compromise in 2004, when all sides, Tymoshenko
excepted, were willing to set aside constitutional
requirements for amending the constitution to reach a
political compromise on a third round of presidential
elections. End note.) The President wanted a political,
democratic, and electoral decision. Yushchenko had been
contacting and would continue to contact world leaders to
explain his position and ask for their understanding. (note:
Yushchenko also laid out his position in a April 4 Financial
Times op-ed).


9. (C) Yushchenko's representative to the Constitutional
Court Shapoval made a similar legal argument to Ambassador
that the people's will, expressed in the 2006 Rada elections,
was not being honored (ref B). The coalition grossly
violated the constitution, directly violating article 83 by
allowing individuals to help form the coalition--the language
is "coalition of factions" not "coalition of MPs"--and
indirectly violating articles 69 and 5 because large numbers
of MPs switching sides contradicted the results of the 2006
election, which usurps the power and sovereignty of the
people. In most parliamentary democracies, he argued, the
majority is formed ad hoc, but in Ukraine it is clearly
regulated in the constitution. While article 90 gives
specific grounds for the President to dissolve the Rada if he
wants, articles 102 and 5 also give him the discretion and
obligation to act to protect the constitution. If broad
articles like 102, 69, and 5 were not honored, the
Constitution would lose its meaning and force.

Tymoshenko: supportive of Yushchenko
--------------


10. (C) Tymoshenko on April 3 made comments similar to
Chaliy's to diplomats. Yushchenko's decree was lawful and in
force until the CC ruled otherwise. Yushchenko's role as
guarantor of the constitution as enshrined in article 102
must be enforced if others were violating the constitution.
The international community should recognize the decree, even
if the Rada ignored it. There were myriad legal opinions on
the constitutionality of the decree, but Yushchenko would
never change his mind on elections. He was generally an
indecisive man and one who wanted compromise above all else.
However, having reached the point that new elections were the
only solution, he was serious and would not be persuaded
otherwise.

Where is the Court?
--------------


11. (C) Comment: The Constitutional Court, which should be at
the center of cutting through this Gordian knot, as well as
resolving dozens of issues which have emerged in the past two
years, has still not issued a single ruling in the eight
months since its full complement of judges had been seated;
it was inquorate for the 18 months before that because the
parties comprising the coalition (Regions, Socialists,
Communists) refused to seat judicial nominees. All sides
have accused others of pressuring the judges. The increased
focus on the Court has also led to multiple rumors about the
status of the Court and its judges. For instance, as
Chairman of the Court Dombrovskiy presided over an all-day
session of court judges April 4, statements by PM Yanukovych,
Speaker Moroz, other ministers and MPs had Dombrovskiy
variously submitting his resignation, in the hospital, or
unable to be located. Early indications of the Court's
unwillingness to tackle politically charged issues--a
preliminary vote in February not to overturn an August 2006
law banning the CC from reviewing the 2004 constitutional
reforms (essentially the right of judicial review) and
another preliminary vote not to review the controversial
CabMin law (which had provisions that even coalition figures

KYIV 00000789 004 OF 004


admitted were unconstitutional)--suggest the Court may not be
in a position to play a constructive role in resolving the
current crisis. At a minimum, the Court's hesitation and
inaction has given rise to doubts about its ability to rule
solely on the legal merits of an issue rather than taking
political interests into account.


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