UKRAINE'S DYSFUNCTIONAL CONSTITUTION: REFORM

C O N F I D E N T I A L SECTION 01 OF 02 KYIV 000404

SIPDIS

E.O. 12958: DECL: 02/27/2019
TAGS: PGOV UP
SUBJECT: UKRAINE'S DYSFUNCTIONAL CONSTITUTION: REFORM
UNLIKELY THIS YEAR

REF: A. 2008 KYIV 0019

B. 2008 KYIV 00873

Classified By: Political Counselor Colin Cleary for reasons 1.4 (b,d).

SUMMARY
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1. (C) There is at least one thing, despite their many
differences, that most Ukrainian politicians can agree on:
the current Ukrainian constitution is in need of reform.
There is also general agreement that the unclear delineation
of powers between the presidency and prime
minister/parliament is the constitution's most glaring flaw.
Both the Tymoshenko Bloc (BYuT) and the Party of Regions
(leading opposition) support a strengthening of the role of
parliament vis a vis the presidency. The threshold for a
constitutional majority is 300 votes (out of 450) in the
Rada. Such a majority would require a political compact
between the Tymoshenko bloc and the Party of Regions --
unlikely in this contentious presidential election year. End
Summary.

Agreement on Need for Reform
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2. (SBU) In 2007 President Yushchenko established the
now-dormant National Constitution Council to rewrite the
constitution. The council held one session in early 2008 but
fell apart because the major political parties could not
agree on procedure, much less on outcomes. Yushchenko on
February 23 publicly renewed his call for a national
referendum on amendments to the constitution, stating that
the 2004 amendments unbalanced the branches of power. On
February 24, Vice Speaker of the Rada Oleksandr Lavrynovych
(Party of Regions) told the press that amendments to the
constitution were needed to correct mistakes made in 2004.
Lavrynovych stated that he would seek to place constitutional
reform on the current parliament's agenda.


A House Built on Sand
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3. (SBU) Stanislav Shevchuk, recently appointed as an ad hoc
judge to the European Court of Human Rights and a
Constitutional Law Professor in Kyiv, lambasted the 2004
amendments to the Constitution in a recent meeting with us.
Referring to the lack of political stability since the 2004
constitutional amendments, he told us it was "impossible to
build a house on sand." Shevchuk noted that the 2004
amendments had been the result of a hasty political
compromise in the Rada. He argued that the Rada had made
changes to the law after it had been reviewed by the
Constitutional Court; this, in his judgment, rendered those
amendments unconstitutional. Shevchuk underlined the
constitution's greatest flaw: lack of clear delineation of
powers between the president and prime minister.


Everyone Has a Plan
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4. (C) The President, the Tymoshenko bloc (BYuT) and Regions
have all put forward draft constitutions since early 2008.
Vsevolod Rechytskiy, a constitutional law expert, told
Emboffs that the Presidential Secretariat had commissioned
him to write a draft constitution. The draft favored a
strong presidential system, a bicameral legislature and
removed all social economic language from the constitution in
favor of focusing on fundamental rights and freedoms (Ref A).


5. (C) Both BYuT and Regions are working on separate drafts
that strengthen the prime minister at the expense of the
president. The drafts envision making the presidency a
largely symbolic position and moving Ukraine closer to a
two-party system (Ref B). However, BYuT and Regions do not
agree on key details -- such as which office makes what
appointments and whether there should be two rounds for
parliamentary elections.


6. (SBU) The Chairman of the Parliamentary Committee on
National Security and Defense (and former Defense Minister),
Anatoliy Hrytsenko in early February submitted a draft
constitution to the Rada. His draft, termed a "constitution
of order," calls for a strong president to form and lead the
government. In order to prevent authoritarianism, the
president would serve four years instead of five. Hrytsenko
would also simplify impeachment procedures. Volodymyr
Horbach, a co-founder of the Civic Constitution Committee, an
independent group of NGO's and think-tanks, told Emboffs that

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the draft had little support in the Rada. Horbach saw it as
an attempt by Hrytsenko to raise his profile ahead of a
possible presidential run.


Amendments Unlikely To Pass Before Presidential Election
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7. (SBU) Despite recent pronouncements by the President and
Vice Speaker in favor of constitutional reform this year,
legal experts contend that it would be difficult for any
constitutional amendments to pass before the presidential
election (expected in January 2010). They cite complex
procedures and the need for political consensus among the two
largest parties -- BYuT and Regions. According to the
constitution, a draft law on introducing amendments may be
submitted to the Rada by the President or by 150 deputies
(except for amendments to Chapters I - General Principles,
Chapter III - Elections, Referendum, and Chapter XIII -
Introducing Amendments to the Constitution of Ukraine).
Before amendments go to a vote, the Constitutional Court
needs to approve them. Amendments become law if in the next
session of the Rada 300 of the deputies vote in favor.


8. (SBU) If the suggested amendments deal with Chapters I,
III or XII, the law can be submitted by the President or by
300 deputies. The amendments still need to be reviewed by
the Constitutional court and then pass by 300 votes in the
next session. A final wrinkle is that amendments to these
chapters also need to be approved in a national referendum.
Horbach told Emboffs that the referendum law had not been
reviewed since Ukrainian independence. The Rada would need
to pass new referendum legislation since the law currently
refers to a number of governmental organizations that do not
now exist.


Constitutional Majority: 300 votes
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9. (SBU) The lack of political consensus and the need to
reach 300 votes are the current sticking points according to
legal experts. Oleksandr Barabash, a lawyer who has
presented cases to the Constitutional Court and is a
specialist in election law, told Emboffs that amendments
would need a consensus between the Tymoshenko bloc and the
Party of Regions. He did not foresee this ahead of the
presidential election, saying that there would be little
incentive for the parties to make amendments on division of
power between the prime minister and president with the
presidential election outcome still in doubt.


10. (SBU) Leading political analyst and member of the Civic
Constitution Committee, Ihor Kohut, echoed Barabash's
comments, telling Emboffs that he saw little hope for
political compromise between the two leading contenders for
president, Tymoshenko and Regions' leader Yanukovych. The
Civic Constitution Committee last year authored a "green
book" that outlined a process for writing a new constitution
that involved establishing a constitutional committee whose
members would be both popularly elected and designated by the
government. Members would be prohibited from serving in
government for five years. Kohut, one of the authors, told
us that the green book was a "fantasy" and that the
constitution could only be changed by consensus of the
political elite.


Comment
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11. (SBU) Given the difficulty in attaining 226 votes (a bare
majority) in the current Rada on controversial measures, the
300 votes needed to form a constitutional majority is a tall
order in this contentious presidential election year.
Chances for constitutional reform could improve following the
(expected) January 2010 presidential election.
TAYLOR