UKRAINE: CONSTITUTIONAL GAME HEATS UP

C O N F I D E N T I A L SECTION 01 OF 04 KYIV 000873

SIPDIS

E.O. 12958: DECL: 05/07/2018
TAGS: PGOV PREL PINR UP
SUBJECT: UKRAINE: CONSTITUTIONAL GAME HEATS UP

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


1. (C) Summary. Rada Speaker Yatsenyuk and adviser to the
Prime Minister Zadorozhniy separately described to the
Ambassador that BYuT-Regions collaboration on a new
constitution was a reality that would move along quickly and
that cooperation between President Yushchenko and Prime
Minister Tymoshenko would continue to be difficult at best.
Yatsenyuk said that he had urged Yushchenko to reach out to
opposition leader Yanukovych as a possible ally, but he
believed the most likely scenario was that BYuT and Regions
would move forward in the Rada with their efforts to reform
the constitution (in a way that could limit presidential
powers and result in early parliamentary and presidential
elections) and that the President was running out of options.
Zadorozhniy confirmed that BYuT and Regions planned to
submit separate, but very similar constitutional drafts to
the Rada next week and the constitutional commission would be
formed on May 13, but he said that this was still mostly a
game to pressure the President into cooperation. However, he
admitted that if Yushchenko did not give in to one side or
the other, Ukraine could have a new constitution as early as
September. Both said that the constitutional draft would
give significant power to the opposition and move Ukraine
closer to a two-party system. Zadorozhniy also said the
draft would significantly limit the President's power -- the
one outstanding issue being whether the President would be
elected by the public or the Rada. Yatsenyuk warned that
Tymoshenko and Yanukovych's work was being facilitated by
former Kuchma Chief of Staff Viktor Medvedchuk -- the
bogeyman of the 2004 presidential campaign -- and that the
latter's participation indicated Russian involvement in this
new tactical alliance. Zadorozhniy confirmed that Medvedchuk
was playing a role, but he implied it was a small role.

2.(C) Comment. BYuT and Regions are pushing full steam ahead
on the constitution, and Yushchenko's team seems worried and
disorganized. Both the media and Zadorozhniy have commented
on the fact that the President hit a major setback when the
Constitutional Court ruled that he could not pass his own
constitution via referendum, slowing the work of his National
Constitutional Council (its draft has still not yet been
publicly released) and his opponents may be taking advantage
of this derailment of his strategy. Yatsenyuk's comments
about Tymoshenko's ambitions and her cooperation with
Medvedchuk echo those made by Yushchenko and Baloha and may
underscore that the presidential team is trying to send us
this message. In many ways, Yushchenko may have
inadvertently pushed Tymoshenko towards Regions by his
relentless efforts to discredit her and block the Cabinet's
progress on her priorities. However, no one believes that
BYuT and Regions are headed towards any deep collaboration --
their mutual hatred is well established; they simply share a
common enemy right now. Tymoshenko and Regions may both
still be hoping to get concessions, or even a broad coalition
for the latter, from the President now that he seems backed
into a corner. End summary and comment.

Yatsenyuk on BYuT-Regions Constitutional Collaboration
-------------- --------------


3. (C) In a one-on-one meeting in his private office,
Yatsenyuk told the Ambassador on May 6 that he was generally
pessimistic about the political situation. He said that
Tymoshenko was going crazy, and that she wanted to be tsar.
The Speaker claimed that he was supposed to meet with the PM
on April 26, but she had stood him up because she was meeting
with Medvedchuk. This led Yatsenyuk to a discussion of what
he saw as the plans for constitutional reform. At one point
Yatsenyuk referred to the new constitutional project as
Medvedchuk's baby, another time he referred to Medvedchuk as
the intermediary between Tymoshenko on one side and
Yanukovych and Klyuyev on the other. (Note. Many in
Yushchenko's camp and in the media have reported on
Medvedchuk's involvement, but no one really knows what his
role is. Because Medvedchuk is so universally hated in Kyiv,
the President's team may see linking him to the PM as a
useful PR tool. End note.)


4. (C) Yatsenyuk explained what he saw as the motivation for
the two parties to overcome their mutual antipathy and
collaborate on this constitutional project. Tymoshenko was a
sprinter, she wanted either immediate constitutional change
or early elections. For his part, Yanukovych hated being in
the opposition. The proposed constitutional draft -- which
Yatsenyuk claimed to have seen parts of -- would give the
opposition real power and move Ukraine towards a two-party
system. The opposition would get control of the Speakership
and the Accounting Chamber (which controls privatization
inflows and reports to the Rada on management of budget
funds). The President would still be directly elected, but

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would have no real power. Yatsenyuk made reference to a new
two-round parliamentary election system, which was described
in detail in an article in respected newspaper Dzerkalo
Tyzhnya. (Note. According to DT, if no party won an
outright majority of seats in the first round, the two
highest vote-getting parties would participate in a run-off,
the winner of which would automatically get 226 seats in the
new Rada and therefore the premiership and government. The
remaining 224 seats would be distributed on a proportional
basis to all other parties that crossed the election
threshold in the first round. End note.) Yatsenyuk said
that the only benefit to this new system is that it would
eliminate the Communists. He also noted that Lytvyn was no
longer a player. He added, however, that there were still
some disagreements on text.


5. (C) Yatsenyuk also believed that there was a Russian angle
to the BYuT-Regions cooperation. The Speaker argued that
Moscow would benefit from the new system, presumably because
it would cause more chaos in Ukraine and reduce Yushchenko's
influence. (Note. In a related comment, Yatsenyuk said that
if Ukraine blew its chance to get MAP in December, it may
never get MAP, because Russia would keep getting richer and
more influential, and its neighbors, including Ukraine, would
get weaker. End note.) Yatsenyuk believed that Medvedchuk
was the main conduit for the Kremlin, but that Tymoshenko had
also cut a deal during her trip to Moscow, part of which was
a promise to support a partnership with NATO that fell short
of MAP, as Yanukovych had done in 2006, stressing practical
cooperation rather than actual membership. Yatsenyuk also
thought Tymoshenko, whom he termed "the best gas dealer in
Ukraine," would also soon reach accommodation with Moscow on
energy supplies. (Comment. While Tymoshenko has never been
as openly supportive of NATO membership as Yushchenko, she
seems equally suspicious of Moscow. She may have come to
some terms with the Russians in hopes of resolving the gas
relationship, but Yatsenyuk's accusations of a deeper
alliance seem exaggerated. Even he recalled her "Containing
Russia" article in Foreign Affairs. End comment.)

Urging the President to be Proactive
--------------


6. (C) Yatsenyuk said he had met with Yushchenko and urged
him to stop playing the constitutional game because it was
too dangerous. He believed the President had opened a
Pandora's box by initiating reform and must now close it.
With regard to the Rada Commission on the Constitution,
Yatsenyuk said that he had made the suggestion that he lead
it (in order to control it) to the President, but that the
President had not wanted to hear this option and turned him
down. Yatsenyuk also thought that one possible solution to
Yushchenko's reelection quandary would be to reach consensus
with Yanukovych and Akhmetov. The Speaker said he had urged
the President to reach out to Yanukovych and ask him to end
cooperation with Tymoshenko. (Comment. Presumably
Yanukovych would entertain cooperation with Yushchenko if the
President offered him something concrete, such as the
premiership. However, Yatsenyuk did not indicate that
Yushchenko was willing to do this. End comment.) The
Speaker said that in a OU-Regions cooperation scenario a new
leader would be needed; however, he didn't think they would
reach consensus. Yatsenyuk said he had also offered himself
up as an intermediary between Yushchenko and Tymoshenko to
try to keep the coalition going. In the end, he believed
BYuT and Regions moving forward on constitutional reform was
the most likely scenario.


7. (C) Yatsenyuk also offered a few comments on Chief of
Staff Baloha, his former boss when he was also at the
Presidential Secretariat. The Speaker said that Baloha had
gone from being part of the solution to being part of the
problem. He said that Baloha came to all of the three-way
meetings between President, PM, and Speaker, and always
caused problems, which was one reason there had not been a
three-way meeting in the past three weeks. Baloha was a
smart tactician, but had no strategy. Yatsenyuk also said it
was Baloha who had lost the Constitutional Court ruling on
passing a constitution via referendum, but he offered no
details other than to say his strategy had been "stupid".

Zadorozhniy: Draft Coming, but Still a Tool in the Game
-------------- --------------


8. (C) Tymoshenko adviser Oleksandr Zadorozhniy confirmed to
the Ambassador on May 7 that BYuT was readying a
constitutional draft to be submitted to the parliament on May

12. He anticipated that on May 13, the Rada would vote to
establish a constitutional commission. In terms of
procedure, Zadorozhniy said that the commission would have
two weeks to review any drafts and recommend one. The Rada

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needed a majority vote to send the draft to the
Constitutional Court, which could take more than a month to
review the draft to ensure that the amendments do not violate
articles 157 and 158 (which state amendments cannot restrict
human and citizen's rights.) Then the Rada will have about
two weeks left before the summer recess to hold the first,
simple majority vote on the new constitution. Assuming they
get 226 votes, the required 300-member second (2/3 majority)
vote could be held as early as September. On May 7,
Tymoshenko said publicly that she hoped the first vote would
be held next week.


9. (C) In terms of substance, Zadorozhniy said BYuT and
Regions had their own drafts that were almost identical
except for the question of whether the President should be
directly elected or elected in the Rada (article 103). BYuT
favored the former -- although only after Zadorozhniy
convinced Tymoshenko that this was the more publicly popular
alternative -- while Regions supported the latter. He said
they were proposing to amend 58 of the constitution's 161
articles and add three new ones -- most of the changes were
Tymoshenko's ideas, which were then translated into legal-ese
by a team of twenty lawyers, including Zadorozhniy. The most
striking changes were the drastic limitation of presidential
powers -- leaving the president with the powers of veto and
legislative initiative, the right to nominate the head of the
SBU and ambassadors, and the chairmanship of the NSDC. In
addition, the opposition would get stronger powers, including
the Speaker, the Accounting Chamber, one deputy prime
minister, and the right to name deputy ministers and deputy
governors. Zadorozhniy thought this was a good idea, because
it would force the opposition to be constructive, which would
help unify the country. Finally, he confirmed that the new
draft laid out a two-round parliamentary election system,
which he said was entirely Tymoshenko's idea -- her thinking
had been that it would eliminate the need for a coalition by
ensuring one party always had at least 226 seats. (Comment.
In response to the Ambassador's question, Zadorozhniy
reluctantly admitted that Medvedchuk was playing a role in
this process; he would not elaborate on what the role was,
but implied Medvedchuk was not a drafter, perhaps giving
credence to the idea that Medvedchuk is a go-between for BYuT
and Regions; and perhaps between BYuT and Moscow. End
comment.)


10. (C) Despite all the work that had gone into preparing the
draft constitution -- Tymoshenko had first gathered experts
to discuss this document in late 2005 -- Zadorozhniy thought
it was far from certain that a new constitution would
actually be passed. He thought both BYuT and Regions were
playing a game and trying to blackmail Yushchenko into
cooperation. There was no guarantee that this would work --
the President was too hard to predict -- but Zadorozhniy's
personal view was that Yushchenko would eventually choose to
cooperate with either Tymoshenko or Regions. Zadorozhniy
suggested that the Presidential Secretariat was not helping
matters by continually insulting the PM. Senior Tymoshenko
adviser Vitaliy Haiduk similarly commented to the Ambassador
May 5 that it was not clear why Tymoshenko would want to
reach agreement with Yushchenko -- Haiduk said the PM goes to
meetings where she faces the President, Baloha, and 10 others
from the Secretariat and all they do is criticize and rebuke
her.


11. (C) Zadorozhniy also said that there was also the
question of whether Tymoshenko and Regions could resolve the
dispute over how to elect the president. Zadorozhniy said he
had been in negotiations with different Regions groups and he
thought eight of its ten leaders wanted the Rada to elect the
president. Only Akhmetov and Kolesnikov might see otherwise,
but they were isolated and disengaged on this issue. On the
other hand, although Regions was stubborn, they had no
ideological tie to any position, so they could change their
view at any time. At the same time, Tymoshenko might also be
convinced to change her point of view. What was important,
according to Zadorozhniy, was that BYuT and Regions not reach
agreement before their two drafts were submitted to the Rada
commission. The fact that the two parties had voted together
to override the President's veto on the CabMin law, passed in
January 2007, had hurt BYuT's, and Tymoshenko's public image.
For them to submit a unified constitutional draft would be
more bad PR for the PM who would be seen as openly walking
away from the orange coalition. Zadorozhniy said that there
were almost daily negotiations taking place and even
Yushchenko was participating.


12. (C) The final topic Zadorozhniy elaborated on was the
transitional phase, should a new constitution be adopted. He
said that negotiations on this topic had not yet occurred,
but that many believed a new constitution would bring early
elections for the Rada and maybe even for the presidency.

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(Note. Haiduk said that he smelled new elections coming
whether there is a new constitution or not. End note.)
Zadorozhniy said his personal view was that they would agree
to let Yushchenko serve out his term with his current powers
and then the new constitution would come into force in early

2010.


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