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06KYIV4290, UKRAINE: THE LONG ROAD TO REFORMING CONSTITUTIONAL

November 17, 2006

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06KYIV4290 2006-11-17 07:23 2011-08-30 01:44 CONFIDENTIAL Embassy Kyiv

VZCZCXRO1839
PP RUEHDBU
DE RUEHKV #4290/01 3210723
ZNY CCCCC ZZH
P 170723Z NOV 06
FM AMEMBASSY KYIV
TO RUEHC/SECSTATE WASHDC PRIORITY 0397
INFO RUEHZG/NATO EU COLLECTIVE
RUCNCIS/CIS COLLECTIVE

C O N F I D E N T I A L SECTION 01 OF 03 KYIV 004290 
 
SIPDIS 
 
SIPDIS 
 
E.O. 12958: DECL: 11/16/2016 
TAGS: PGOV PREL UP
SUBJECT: UKRAINE: THE LONG ROAD TO REFORMING CONSTITUTIONAL 
REFORM 
 
REF: 04 KIEV 4952 
 
Classified By: Political Counselor Kent Logsdon for reasons 1.4(a,b,d). 
 
1. (SBU) Summary.  Constitutional reform bill 4180 (now known 
by its Ministry of Justice number 2222) shifting powers from 
the President to the Prime Minister-led Cabinet of Ministers 
and Rada majority was adopted December 8, 2004 as part of the 
package to solve the political crisis ensuing from the Orange 
Revolution and to allow a revote to elect Yushchenko 
president (reftel).  Haste and the need to paper over 
disagreements, however, left the political reforms vague and 
poorly written and thus open to potential Constitutional 
Court challenge.  Eight months after the new political system 
went into effect (formally January 1, 2006, but in reality 
after the March 26 elections), the Prime Minister, President, 
and Rada are trying to feel their way through, and at times 
to take advantage of, the vagueness to de facto and de jure 
redefine political reform in their favor.  Eventually the 
Constitutional Court, a government body that gets little 
attention and which lacked a quorum from November 2005-August 
2006, may be called on to play a pivotal rule in the power 
struggle by reviewing some or all of the changes from 
December 2004.  Court experts and politicians involved in the 
drafting have stated repeatedly that, if asked and in the 
absence of political pressure, the Court would likely rule to 
overturn political reform in part or in whole.  The decision 
to initiate a potential review is thus a political one, still 
being mulled separately by Tymoshenko's Bloc (BYuT) and Our 
Ukraine, and likely to be fiercely resisted by the parties in 
the ruling coalition, Regions, Communists, and especially the 
Socialists led by Rada Speaker Moroz, who championed 
political reform for nearly a decade.  End Summary. 
 
Constitutional ABCs 
------------------- 
 
2. (SBU) The Constitutional Court sits outside the rest of 
the judicial branch structure as an independent court that 
hears only questions related to interpreting the 1996 
constitution.  It is comprised of 18 judges--6 appointed each 
by the President, the Rada, and the Congress of Judges.  The 
Court sat without 14 judges for ten months from November 
2005-August 2006 after political forces fearing an attempt to 
overturn political reform refused to swear in judges 
nominated by President Yushchenko and the Congress of Judges 
in October 2005.  As part of the early August agreement to 
sign the Universal and for Yushchenko to nominate Yanukovych 
as Prime Minister, the Rada took action to nominate its own 
candidates and approve all judges. 
 
3. (SBU) According to constitutional court experts, the Court 
has two fundamental weaknesses.  Private citizens cannot 
petition the court--only the Rada, President, and the Cabinet 
of Ministers can (all three have permanent representatives to 
the Constitutional Court who petition on behalf of their 
organization).  Secondly, the Court has jurisdiction only 
over the Rada, President, CabMin, and Crimean Parliament, but 
no jurisdiction over lower courts or local and regional 
governments, limiting its ability to rule on all 
constitutional issues. 
 
4. (SBU) There are two ways to amend the constitution.  A 
constitutional reform draft can be approved by a two-thirds 
majority in the Rada and then be held subject to a 
referendum.  Or a simple majority (226 MPs) in the Rada can 
approve the reform draft in one Rada session and then a 
two-thirds vote (300 MPs) must approve the reform in the 
following Rada session.  Both versions require that the 
Constitutional Court read the draft amendments before they 
are voted on and that the Court-approved text be the version 
of reform that goes forward. 
 
Reversing Reform is Technically Possible.... 
-------------------------------------------- 
 
5. (SBU) We spoke with two Constitutional Court experts, 
former Court Judge Petro Martynenko and former senior court 
clerk Stanislav Shevchuk, November 3 about the possible 
annulment of political reform.  Both stated that 
constitutional reform could be undone on a number of grounds 
if the Court took up this matter.  They agreed that when the 
constitutional reforms were adopted there were both 
violations of Rada procedure and of the procedures for 
amendment embodied in the constitution itself.  Several of 
the political authors of the December 2004 political 
compromise, including former Rada Speaker Lytvyn and former 
SDPU(o) MP Nestor Shufrych, have acknowledged that violations 
in the way the reform was adopted are grounds for the Court 
to overturn the reform. (Shufrych told us in September that 
he warned Moroz, who is a longtime champion of political 
 
KYIV 00004290  002 OF 003 
 
 
reform to reduce the powers of the President, of this danger 
the morning of December 8, 2004, prior to passage of the 
changes). 
 
--Since there were approximately 15 changes made in the 
reform draft after the Court okayed it, it should have been 
reviewed a second time by the Court, which it was not. 
 
--The constitutional reform was voted on in a package vote 
along with the new pre
sidential election law, which violates 
Rada rules of procedure. 
 
--If constitutional amendments are voted on and fail in the 
Rada, the Rada must wait a year before reconsidering the 
issue.  A bill on political reform that was basically 4180 
but submitted under a different number was voted on and 
rejected in April 2004, so it should not have been eligible 
for a vote in December of the same year. 
 
....But Politically Questionable 
-------------------------------- 
 
6. (SBU) Judge Martynenko argued that the real issue was not 
a question of a constitutional basis for undoing reform, but 
whether there was a political one.  Given that the reforms 
had already been implemented and the new system was 
functioning, would reversing the reforms simply cause chaos? 
If the Court did vote to annul the reform, it would have to 
provide very specific recommendations on how to transition 
back to the old system and decide what would happen to the 
Yanukovych government.  In his opinion, it would be more 
pragmatic to rework the current system than to undo it.  Then 
you could gather popular support by holding a referendum to 
end the political debate. 
 
The Orange Team: Slow to Challenge Status Quo 
--------------------------------------------- 
 
7. (SBU) There is no statute of limitations on making a 
request for a court review, and thus far, no one has asked 
the Court to review the constitutional reform package. 
Yuliya Tymoshenko gathered the signatures of 45 MPs (note: 
the minimum number required for the Rada to petition the 
Court) over a year ago to ask the Court to cancel reform, but 
did not submit it to the Court.  She has since said 
periodically both publicly and privately that BYuT still 
plans to make an appeal.  Most recently, she told AS Fried on 
November 16 that she hoped the Constitutional Court might 
overturn the reforms in the spring (septel). 
 
8. (SBU) In past weeks, Our Ukraine members have begun 
calling for amending constitutional reform, with a formal 
decision taken in this regard at the party congress on 
November 11.  On November 8, Yushchenko's then representative 
to the Rada, Yuriy Kluchkovskiy, said that constitutional 
reform should be annulled because the Yanukovych government 
was taking advantage of it to gain authoritarian powers.  One 
of Our Ukraine's leaders, Petro Poroshenko, also said 
publicly that the reforms needed to be revisited.  At a 
November 8 briefing on the activities of the National 
Commission on Rule of Law, Yushchenko decided that the 
commission's top priority for next year should be 
constitutional reform, although he did not specify what kind 
of actions he would like to see. 
 
The Coalition is Fighting Review 
-------------------------------- 
 
9. (C) On August 4, Regions pushed through in a single 
reading a controversial amendment to the law on the 
Constitutional Court barring the Court from reviewing 
already-exisiting constitutional reform, which the Rada 
passed and Yushchenko immediately signed.  Shevchuk and 
Martynenko opined that Regions wrote the law because there 
were concerns that the new Court judges might be 
pro-Yushchenko and because they are aware that legal grounds 
exist that could result in an overturning of the 
constitutional changes.  Martynenko and Tymoshenko told us 
that approximately 2/3 of the judges lean towards Yushchenko 
and might reverse some or all of the constitutional reforms 
if asked. 
 
10. (C) On November 7, Speaker Moroz claimed to Ambassador 
that political reform would not be undone.  He suggested that 
the coalition will eventually have 300 deputies, probably be 
year's end, which will protect the reforms already passed and 
allow the Rada to introduce new reforms.  He believed that 
one reason for the collapse of the coalition talks with Our 
Ukraine was Yushchenko's unwillingness to pass a second 
constitutional reform bill, 3207, that was introduced in the 
December 2004 compromise and is still pending.  This bill 
 
KYIV 00004290  003 OF 003 
 
 
would transfer power in the regions from 
presidentially-appointed governors to regional assemblies. 
 
11. (SBU) Note: Interestingly, the experts we talked to said 
that in contrast to 4180 (which moved power from the 
president to the PM), this second constitutional reform bill, 
3207, is perfectly constitutional.  It received a simple 
majority vote in the previous Rada session, so if it receives 
two-thirds Rada approval (300 votes) by the end of this Rada 
session (January 12, 2007), then it will go forward 
regardless of whether or not the Constitutional Court moves 
to reverse some or all of the reforms in 4180. 
 
12. (C)  Moroz thought there was a fifty-fifty chance that 
the Constitutional Court would review political reform, but 
he did not believe the Court was independent, because the 
current group of justices were appointed under certain 
political conditions.  Moroz warned that if constitutional 
reform was reversed, it would lead to civil conflict. He also 
said that he believed this was a problem not with the 
President, but with his circle of advisers, who are trying to 
convince him to reclaim Kuchma's powers. 
 
Testing the Waters with an untested Court? 
------------------------------------------ 
 
13. (C) Yushchenko has sent two petitions to the court to 
interpret and clarify certain aspects of the reform, perhaps 
as trial-runs on how the Court will rule.  The first was 
whether the Cabinet had the right to name the head of the 
state arms broker, UkrSpetsExport, in the past always a 
presidential nomination.  The press reported in early 
November that it could be at least six months before the 
Court ruled.  The second concerned defining the powers of the 
Minister of Internal Affairs and to whom he would report. 
Similarly, Tymoshenko told AS Fried in November that she was 
taking several smaller issue to the Court before trying to 
tackle constitutional reform as a whole.  First, she had 
petitioned the Court to rule on imperial mandate--making Rada 
seats property of the factions, not the MPs, so that she can 
remove defectors and keep her faction strength intact. 
Later, she planned to ask the Court to declare the formation 
of the Yanukovych government invalid due to its formation 
after the constitutionally-mandated time frame. 
 
14. (SBU) Both Martynenko and Shevchuk assessed the new 
complement of Constitutional Court judges, especially the 
Yushchenko appointees, as very professional, and Shevchuk 
praised new Chief Judge Dumbrovsky. (Note: He was the 
President of the Civil Chamber of the Supreme Court when the 
court annulled the second round of the 2004 presidential 
election.)  Martynenko added that while said some of the new 
judges were law professors, on the whole there were not 
enough constitutional experts on the court. 
 
Dueling Consti
tutional Commissions? 
----------------------------------- 
 
15. (SBU) On November 2, Yushchenko established a 
constitutional commission, whose main functions are creating 
a system of checks and balances, as declared in the 
Universal, and drafting proposals for further constitutional 
amendments.  Yushchenko said that the Prime Minister, Rada 
Speaker, and Rada faction heads were all invited to nominate 
members of this commission, although there has been no 
announcement yet of any nominations.  On the same day, 
however, Moroz presented a draft resolution to the Rada to 
form its own constitutional commission to analyze bills 
touching on constitutional reform.  This commission would be 
headed by First Deputy Speaker Martynuk and would include 
constitutional law specialists from all factions.  The Rada 
voted to postpone a decision on Moroz's proposal.  Either 
commission could be used to deconflict competing versions of 
key legislation written to define the new political system, 
such as the two laws on the Cabinet of Ministers. 
Alternatively, the institutional jousting in evidence in the 
wake of implementation of political reform could continue in 
competing efforts to shape further steps and review efforts 
to date. 
 
16. (U) Visit Embassy Kyiv's classified website: 
www.state.sgov.gov/p/eur/kiev. 
Taylor

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