UKRAINE: CONSTITUTIONAL COURT HEARINGS, DAY THREE:

C O N F I D E N T I A L SECTION 01 OF 02 KYIV 000939

SIPDIS

SIPDIS

E.O. 12958: DECL: 04/19/2017
TAGS: PGOV PHUM UP
SUBJECT: UKRAINE: CONSTITUTIONAL COURT HEARINGS, DAY THREE:
FOCUS ON DISCRETIONARY POWERS

REF: KYIV 929

KYIV 00000939 001.2 OF 002


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


1. (SBU) Summary. The Constitutional Court's hearings on
Yushchenko's April 2 decree went more smoothly April 19 than
the previous day, as Presidential Court representative
Shapoval concluded his presentation and fielded questions.
Shapoval, a former Constitutional Court judge and one of
Ukraine's leading constitutional experts, argued that
Yushchenko legitimately used his discretionary powers in the
absence of the Court's interpretation of official
presidential duties and powers to issue the decree.
Opposition leaders Tymoshenko, Lutsenko, and Kyrylenko held
another joint press conference late April 18 to continue
their criticism of the Court proceedings, to announce a new
rally for April 20 on European Square, and to preview a
gambit to give Yushchenko another rationale to dissolve the
Rada by dropping membership below the required 300 MP quorum.
Under the plan, BYuT and OU MPs would resign from their
factions, allowing bloc leadership to expel them; combined
with official cancellation of their 2006 electoral lists,
which would prevent the Central Election Commission (CEC)
from replacing the MPs, the maneuver could deprive the Rada
of a legal quorum. (Note: This follows opposition MPs trying
to block judges from the courthouse to prevent a CC quorum
and the coalition-organized "sick-out" at the CEC to prevent
a quorum there. End note.) An emergency Our Ukraine bloc
interparty congress April 19 took steps to implement the
novel resignation strategy. The press secretary for PM
Yanukovych, in Warsaw April 19, announced that there would be
additional consultations April 20 between Yanukovych and
Yushchenko to seek compromise.


2. (C) Comment. One of the weaknesses of the current court,
retired constitutional court judge Martynenko has told us, is
the lack of expertise in Constitutional, rather than
civilian/criminal, law. Shapoval, who sat on the court when
it previously interpreted presidential power in 1997, 2000,
and 2003, maintained in his presentation that the Court had a
duty to conduct a constitutional debate, since the stakes in
the case affected the nature of the institution of the
Presidency in Ukraine, not just whether there were violations
in the April 2 decree. However, some of the judges,
particularly Kuchma appointees Pshenychniy and Stanik, have
bristled at Shapoval's extended discourse on discretionary
powers and relevant constitutional provisions. Shapoval also
announced that he would relinquish responsibilities as the
President's representative on the Court once the Court
decided in the current case; as a respected constitutional
expert, he may well feel uncomfortable mixing constitutional
theory with political arguments. End summary.

Focus on constitutional issues, not a media circus
-------------- --------------


3. (SBU) While an estimated 15,000 protesters gathered
outside the courthouse on April 19, with opposition
supporters outnumbering coalition supporters two:one, the
police were better prepared to keep the peace. Justices,
media, and observers gained access to the court, and none of
the previous day's pushing antics reoccurred. Inside the
building, presidential representative Shapoval finished his
presentation and took questions from the judges. A former
Constitutional Court judge (and deputy Chair) who served from
1996-2005, Shapoval focused on a fundamental principle of
constitutional law, discretionary powers. (Embassy Note:
This concept does not exist in civil/criminal law as
practiced in Ukraine. End Note) Shapoval reiterated his
main argument from April 18 (reftel) by stating that the
President had the full authority to act as the guarantor of
the Constitution using discretionary powers to issue the
decree in the absence of Court interpretation of presidential
powers and duties. Shapoval will continue to take questions
from judges the morning on April 20.

Opposition Continues to Push: New Rationale?
--------------


4. (SBU) Late on April 18, Tymoshenko, Kyrylenko, and
Lutsenko held another joint press conference to criticize the
alleged use of police force in allowing "corrupt" judges
access to the court earlier, as well as the overall lack of
quality of the court proceedings. They called for an
opposition rally on April 20 at 6 pm in European Square.
Regions MP Vladyslav Lukyanov told us that the coalition was
now planning a counter-rally in the Maidan, boasting that we
would then see who had the bigger turnout and therefore, who
was the most popular political force in the country.


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5. (SBU) Tymoshenko and Kyrylenko also previewed a new
rationale to bolster Yushchenko's argument that the Rada
should be considered dissolved. BYuT and OU MPs would offer
their resignations en masse, not directly from the Rada, but
from their factions; combined with moves to annul the BYuT
and OU electoral lists submitted to the CEC for the 2006
election, this could officially deprive the Rada of the
required 300 MP quorum. OU staffer Svetlana Gumenyuk told us
April 19 that the plan was intended to sidestep the
Constitutional provisions in Article 81.2 that mandate Rada
approval of a deputy's resignation from the Rada itself by
having the two factions take advantage of the provisions in
Article 81.6, which states that if an MP resigns from his
faction, the respective party/bloc that controls the factions
can expel that MP.


6. (SBU) Normally, candidates from lower on the list
maintained at the CEC would fill the slot, but if the lists
are annulled in their entirety, replacement would not be
possible. The OU Bloc's interparty congress April 19 decided
to: abolish its 2006 electoral list; expel Minister of
Economy Kinakh's Party of Industrialists and Entrepreneurs
from the OU bloc; terminate the Rada powers of the OU MPs who
had defected to the coalition; and take further action on
other OU MPs once the CEC abolished the OU electoral ticket.
Yuliya Tymoshenko's bloc held a parallel congress which also
decided to terminate the 2006 electoral ticket, expel 17 MPs
who had cooperated with the coalition majority, and submit
resignation letters. Tymoshenko later told the press that
104 of the 129 BYuT MPs elected in March 2006 had submitted
their letters of resignation to President Yushchenko,
suggesting that 25 MPs refused to participate in the
maneuver.

Public Polls - low confidence in the Court?
--------------


7. (SBU) The controversies around the Court may be affecting
public perceptions of the Court. An April 9-13 poll
conducted by the Kyiv International Institute of Sociology
(KIIS) indicated that only 15 percent believed the Court
could rule independently, compared to 35.6 percent of
respondents who believed the CC could not make an independent
decision. An earlier KIIS poll conducted March 29-April 3
suggested that 50 percent of respondents did not believe the
Court could make objective and unbiased decisions. (Embassy
Note: Although this polling organization was found to have
falsified polling results in then-candidate Yanukovych's
favor in the 2004 election, we believe that these results
accurately reflect the public's doubts about the ability of
Ukrainian judges to rule independently. End Note.)


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