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07KYIV135, UKRAINE: ONE VICTOR? CABINET OF MINISTERS LAW

January 19, 2007

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07KYIV135 2007-01-19 15:09 2011-08-30 01:44 CONFIDENTIAL Embassy Kyiv

VZCZCXRO3051
PP RUEHDBU
DE RUEHKV #0135/01 0191509
ZNY CCCCC ZZH
P 191509Z JAN 07
FM AMEMBASSY KYIV
TO RUEHC/SECSTATE WASHDC PRIORITY 0966
INFO RUCNCIS/CIS COLLECTIVE
RUEHZG/NATO EU COLLECTIVE

C O N F I D E N T I A L SECTION 01 OF 05 KYIV 000135 
 
SIPDIS 
 
SIPDIS 
 
E.O. 12958: DECL: 01/19/2017 
TAGS: PGOV PREL UP
SUBJECT: UKRAINE: ONE VICTOR? CABINET OF MINISTERS LAW 
POISED TO REALIGN UKRAINIAN POLITICAL DYNAMICS 
 
REF: A. KYIV 89 
     B. 06 KYIV 4681 
     C. 06 KYIV 4355 
 
Classified By: Ambassador, reason 1.4 (b,d) 
 
1.  (C) Summary.  A landmark Cabinet of Ministers law passed 
January 12 via a presidential veto override (ref A) will 
remake the Ukrainian political landscape once it comes into 
effect, although President Yushchenko cited a technicality to 
issue a renewed veto January 19 and returned the bill to the 
Rada with his suggestions, already twice ignored by the 
ruling coalition.  Yushchenko told Ambassador January 19 that 
he was furious with Yanukovych for breaking their January 10 
agreement to work together but felt he had secured 
Yanukovych's agreement to cooperate on changes at an 
emergency January 18 session of the National Security and 
Defense Council (NSDC).  The CabMin law greatly empowers the 
premier, further marginalizes the presidency, and, in tandem 
with a new draft law on the opposition, promises a shift of 
the "balancing force" in Ukrainian politics away from the 
President and towards the opposition in the Rada 
(parliament).  The law also spells the effective end of FM 
Tarasyuk's lonely campaign to stay in office, with a new 
Foreign Minister almost certain to emerge in early February, 
in spite of President Yushchenko's statements to the 
contrary.  Opposition leader Yuliya Tymoshenko claims she 
joined the coalition majority for the veto override as a 
tactical move in a greater strategy involving potential 
Constitutional Court and Presidential decisions that could 
overturn political reform in the courts and dismiss the Rada 
for early elections.  Regions MPs claim an alleged 
politicization of the Security Service of Ukraine (SBU) 
played a role in the sudden reversal of Yanukovych's stated 
intent to pursue cooperation with Yushchenko, although 
Yushchenko and Tymoshenko both suggested Yanukovych reached 
out to Tymoshenko to maximize Regions' political gain.  The 
future direction of the SBU and law enforcement reform is one 
of many open questions for Ukraine's 2007 political calendar 
regardless. 
 
2. (C) Comment:  Yanukovych was significantly strengthened 
January 12 by passage of the Regions-drafted Cabinet of 
Ministers law without any compromise with Yushchenko's dozens 
of concerns/amendments that would make the bill acceptable to 
to the president's team.  It is unclear as of January 19 
whether an apparent Rada clerical error might give Yushchenko 
an opening to claw back ground. There was no immediate 
reaction by the PM to Yushchenko's renewed veto January 19, 
because all major figures had travelled to Kharkiv for the 
funeral of deputy Regions' leader Yevhen Kushnariov, but 
Speaker Moroz alleged in a letter to the presidential 
secretariat that Yushchenko had no right to veto it again. 
 
SIPDIS 
Since Our Ukraine (OU), the Tymoshenko Bloc (BYuT) and Moroz' 
Socialists seemed poised in June 2006 to form a "Coalition of 
Democratic Forces," in the span of a short seven months, 
Yanukovych and Regions masterfully took advantage of the 
desires and weaknesses of first Moroz, then Yushchenko, and 
now Tymoshenko to achieve their goal of consolidating power 
in a Regions'-led government.  The USG needs to be thinking 
mid-term, through the 2011 parliamentary elections, on how 
best to engage Ukrainian leaders, on how to keep them looking 
and moving westward.  Yanukovych more than ever will serve as 
the linchpin to the system going forward; we will need to 
remind him of his promises in Washington in early December to 
work with Yushchenko.  End Summary and Comment. 
 
CabMin law: More of an earthquake than a blip? 
--------------------------------------------- - 
 
3.  (C) The CabMin law as currently constituted represents 
more of a realignment of power relationships than a blip or 
adjustment in the two Viktors dynamics we've seen since 
August (ref B).  In essence, it resolves most of the 
institutional arguments over unclear provisions in the 
constitution over the past six months in favor of the PM and 
Cabinet.  The law thus appears to move Ukraine towards a 
German model with a power Chancellor at its center and away 
from a Polish-French Presidential-PM cohabitation model in 
which the President has a higher profile even if the PM 
formally heads the government (note: Poland and France were 
the most frequently cited parallels of the Ukrainian 
political system in 2006 after constitutional changes 
referred to as "political reform" came into effect). 
 
4. (SBU) Although there are plenty of opinions on both sides 
and the constitutional court will eventually have to make a 
final determination, our read of the law's provisions suggest 
the following may encroach on Yushchenko's constitutional 
prerogatives as president: 
 
 
KYIV 00000135  002 OF 005 
 
 
- if the President fails to nominate Foreign and Defense 
Ministers within a 15 day period, the Rada coalition may 
nominate the Ministers (article 9); 
 
- there is no differentiation between the dismissal 
procedures used against ministers nominated by the president 
(FM, DefMin) and the coalition/
PM, giving dismissal 
initiative/authority to the PM alone (article 19); 
 
- the PM and a relevant minister gain mandatory 
countersigning authority for many constitutionally defined 
Presidential actions, including diplomatic appointments, NSDC 
decisions, the decision to declare a state of emergency, and 
the establishment of courts.  The lack of a countersignature 
constitutes an effective PM veto over relevant presidential 
acts (article 27; note: while the countersignature provision 
is envisaged in the constitution, previously that has been 
only an after-the-fact clerical endorsement.  After coming to 
power in August, Yanukovych's legal team, led by current 
Justice Minister Lavrynovych, claimed the PM had a 
substantive process right of approval); 
 
-- the NSDC, as well as the Presidential Secretariat and 
other presidential bodies, are not allowed to give 
instructions to the Cabinet of Ministers or interfere into 
their activities (Article 29; note: the NSDC previously had 
such authority on national security policy-related issues); 
 
- The Rada endorses the Cabinet of Ministers program in the 
form of a resolution rather than law (article 11; the 
President can veto laws but not resolutions); 
 
- chairmen of local state administrations (informally 
referred to as governors) are under the control of, 
accountable to, and disciplined by the Cabinet of Ministers, 
which may overrule local government decisions and initiate 
dismissal requests to the President (article 25). 
 
Yushchenko: belatedly pushing back, using a technicality? 
--------------------------------------------- ------------ 
 
5. (C) In a January 17 news conference in Donetsk, Yushchenko 
accused Yanukovych of breaking their January 10 agreement to 
draft a bill jointly, called Yanukovych's veto override move 
a "serious mistake," and said he would not sign the bill "for 
ethical reasons."  Late January 18, he called an emergency 
session of the NSDC, with Yanukovych in attendance, taking 
advantage of an apparent clerical error by the Rada that made 
the December and January bill texts different to claim the 
right to issue a renewed veto.  Yushchenko told Ambassador 
January 19 he had been "furious" and had "raised the roof" 
during the NSDC session over Yanukovych's failure to follow 
through on their agreements.  He complained that he had to 
"slap the hands of the government" every other day. 
According to Yushchenko, Yanukovych sounded conciliatory at 
the end of the session.  Yushchenko said that he would send 
Presidential Secretariat head Baloha to work with Yanukovych 
on a road map on how to alter the bill.  Although the issues 
were not resolved, Yushchenko remained optimistic that they 
could be. 
 
6. (SBU) After the NSDC session, Yushchenko told the press 
that the January 12 veto override had ruined all previous 
efforts at cooperation between the President, Cabinet, and 
Rada and that the Rada should revisit the bill to ensure it 
was in line with the Constitution.  Citing the Constitution 
and a 1998 Constitutional Court ruling addressing the issue 
of differently worded bills forwarded to the President, he 
stated he had the right to return the law to the Rada for a 
repeat examination, giving the Rada a chance to amend the 
text.  Yanukovych's terser remarks after the session 
acknowledged a need to harmonize the CabMin law with the 
constitution but did not indicate what mechanism or basis 
might be used to do so.  With all major coalition figures in 
Kharkiv January 19 to attend the funeral of deputy Regions' 
leader Kushnariov, accidentally shot to death in a January 16 
hunting accident, there was no reaction from the PM to 
Yushchenko's renewed veto January 19.  However, Rada Speaker 
Moroz, through the Rada Secretariat, sent a letter to the 
Presidential Secretariat demanding that Yushchenko sign the 
law and alleging that he had no right to veto it again. 
 
The Rada opposition to emerge as a new counterbalance? 
--------------------------------------------- --------- 
 
7. (SBU) Yanukovych's concluding remarks at the close of the 
Rada's session January 12 consciously emphasized the triumph 
of Ukrainian "parliamentarism" as opposed to cooperation with 
the presidency, according to self-acknowledged Yanukovych 
speechwriter and Regions MP Hanna Herman (ref A).  The vote 
tradeoff between Regions and BYuT -- veto override in 
 
KYIV 00000135  003 OF 005 
 
 
exchange for a first reading of a draft law on the opposition 
(with a final text still to be negotiated) and passage of a 
local council imperative mandate -- also highlighted the 
growing center of gravity at the Rada, between coalition and 
empowered opposition, rather than between PM and President. 
A January 17 op-ed by Yanukovych's Chief of Staff Lyovochkin 
in "Ukrainska Pravda" stressed the importance of a strong 
opposition, noting that the law on the opposition should 
become an "integral component of the new political system's 
legislation."  Lyovochkin followed Yanukovych's lead in not 
discussing the role of the president or presidential-premier 
relations in the system of checks and balances. 
 
8. (C) Other institutional actors will play key roles.  The 
Constitutional Court's role in particular looms ever larger, 
since the Court now becomes the last legal resort for 
resolving differing interpretations of the Constitutional 
powers of the president and cabinet and faces a full docket 
likely only to grow in the coming weeks.  International 
engagement, playing on Yanukovych's desire to be accepted, 
and the Ukrainian media, generally unfettered since the 
Orange Revolution, will also remain key components in helping 
keep Ukraine moving in the right direction, although there 
are signs of fatigue in both areas.  There were fewer 
journalists covering the Rada's closing session featuring the 
veto override and Yanukovych's closing remarks than at any 
significant Rada event since the Orange Revolution.  While 
Ukraine's citizens have not noticeably reacted to recent 
political developments, the parliamentary elections scheduled 
for 2011, while four years away, serve as a reminder that in 
a competitive multi-party democracy with an electorate that 
takes its right to have its vote respected seriously, 
politicians and parties ignore citizen sentiment at their 
peril. 
 
The Yuliya factor: Courts key, goading Yushchenko 
--------------------------------------------- ---- 
 
9. (C) A relaxed Tymoshenko explained her strategy and 
tactics to Ambassador January 18.  While claiming BYuT as the 
opposition now served as the chief balance to Yanukovych, her 
approach to her strategic ends -- forcing Yanukovych from 
office and restoring "democratic forces" to power -- hinges 
entirely on a series of potential decisions by two other 
institutions, the Constitutional Court and President 
Yushchenko.  Her tactics are designed to influence those two 
institutions to make decisions that could theoretically lead 
to her cherished goals: reversal of political ref
orm and 
pre-term elections.   She claimed 11 of the 18 Constitutional 
Court judges were currently willing to rule on the merits of 
law as opposed to political factors.  This gave appeals a 
real chance of success; "the Constitutional Court is at the 
center of our attention and strategy."  Less certain in her 
mind was whether Yushchenko would display the courage to make 
the tough political decisions following up openings the Court 
might create. 
 
10. (C) Tymoshenko claimed BYuT's package voting with Regions 
was purely tactical, with the key being the local council 
imperative mandate law.  However, the implication and body 
language of her comments indicated that the veto override 
vote on Friday was also intended as a wake-up call to 
Yushchenko, to force him to deal with her in backing up his 
veto power and coordinating moves by BYuT and OU.  She 
claimed that since August there had been no high level 
dialogue; Yushchenko had only met her once, immediately after 
Yanukovych became PM, and refused to return her calls. 
However, Yushchenko told the Ambassador January 19 that he 
had called Tymoshenko just before the vote to urge her to "be 
a patriot and not vote to override." 
 
11. (C) Laying out her court-based strategy, Tymoshenko 
claimed the local imperative mandate law was crucial because 
it created the right climate for the Constitutional Court to 
rule on a petition concerning imperative mandates in the 
Rada, a decision she expected January 25.  The Court ruling 
in turn was critical to prevent BYuT and OU MPs from jumping 
to the Regions-led coalition and giving them a veto-proof 300 
MP majority.  Since BYuT and OU alone could not secure a 
positive vote on the imperative mandate law before January 
25th, she had to cut a deal with Regions.  Tymoshenko said 
that her whole strategy would fall apart if Yushchenko vetoed 
the local imperative mandate law.  She noted that she had met 
with NSDC Secretary Haiduk and his business partner Taruta in 
the middle of the night January 16 to lobby them to convince 
Yushchenko not to veto the law.  In Tymoshenko's view, 
passage of a good law on the opposition is important, but not 
a key part of her current strategy. 
 
12. (C) The next key constitutional court ruling, which 
Tymoshenko predicted could come in late February/early March, 
 
KYIV 00000135  004 OF 005 
 
 
would be on the technical legitimacy of the Yanukovych 
government, based on the delay in its assuming office.  She 
assessed the probability of a positive outcome at 50-50.  It 
would then be up to Yushchenko to use the opportunity to 
dismiss the Rada and call pre-term elections.  In her view, 
given current popular rating dynamics, by spring it would be 
realistic to see: Regions, popularity to slip to 20-25%; for 
OU to aim for 10% if former Interior Minister Lutsenko was 
named head, 6-7% otherwise; BYuT to win up to 30%; and 25-30% 
would be lost to small parties under the 3% threshold, with 
Vitrenko the possible sole exception going over the 
threshold.  Redistribution of unrepresented small party 
shares would give BYuT and OU a working majority. 
 
13. (C) Tymoshenko concluded her analysis by stating that if 
potential Court/Yushchenko decisions did not go the right 
way, there would be no other mechanism to effectively counter 
Yanukovych/Regions, who would be in power for the long haul, 
and "democratic forces" essentially without influence.  In 
her view, there was no way of making a "good guy" out of 
Yanukovych; the only feasible option was to try to remove him. 
 
Tarasyuk's fate - a doomed FM? 
------------------------------ 
 
14. (C) By giving the Rada coalition the right to nominate a 
FM or DefMin after 15 days if the President declined to 
nominate a candidate, the new CabMin law effectively dooms 
Tarasyuk come February, no matter what the status of his 
court appeals.  While Yushchenko in Donetsk January 17 
expressed confidence the Constitutional Court would support 
him on Tarasyuk, it seems unlikely that Tarasyuk would still 
be around by time the court rules.  Yanukovych stated January 
15 that the Rada would take up the issue of a new FM when it 
reconvened February 6.  Tymoshenko criticized Yushchenko's 
stance on Tarasyuk to the Ambassador in conversations in 
December and January, suggesting Yushchenko needed to protect 
his right to nominate an FM of his choosing by nominating a 
new Minister quickly rather than fighting the rearguard court 
action to defend Tarasyuk and battling cabinet/rada efforts 
to take action into their own hands in February. 
 
The alleged SBU factor - security agency/sector adrift? 
--------------------------------------------- ---------- 
 
15. (C) The rationale for Yanukovych's about-face from 
announcing intent to cooperate with Yushchenko on a joint 
bill January 10 to voting with BYuT to override Yushchenko's 
veto January 12 varies, depending on the source.  Tymoshenko 
claimed to Ambassador that Regions had quickly concluded 
there was no common ground with the President over the CabMin 
bill and that there would be continued squabbling over the 
smallest of details.  Her assertion that Regions had provided 
a range of options in negotiations over the local imperative 
mandate law, including override of the presidential veto, 
suggests Regions was already searching for the best deal for 
its interests.  Yushchenko separately confirmed this 
scenario, telling Ambassador that Yanukovych had turned to 
Tymoshenko to strike a deal on the veto override. 
 
16. (C) Not surprisingly, Regions sources - most recently 
Regions' Taras Chornovil to Ambassador January 16 - claim 
that SBU sources tipped off Yanukovych January 11 that 
Yushchenko and Presidential Secretariat Head Baloha had 
authorized the SBU to tap Moroz and even to target 
Yanukovych, and that this was the decisive factor that led 
Yanukovych to drop the promised cooperation with Yushchenko 
in favor of the deal with Tymoshenko (ref A).  On January 16, 
the SBU spokeswoman held a press conference to dispute 
allegations that it had tapped Moroz, suggesting that, on the 
contrary, those behind the bugging of Moroz' conversations 
with the British Ambassador in mid-2006 were likely the same 
ones caught by the SBU monitoring calls of constitution court 
judges (note: in late 2006, the SBU announced the arrest of 
people involved in bugging both judges and Our Ukraine MPs, 
indicating that those implicated had direct ties with 
prominent unnamed Regions MPs). 
 
17. (C) Comment: Whether Regions' allegation against the SBU 
is true or is tit-for-tat for the arrests of 
Regions-affiliated figures monitoring judges and OU figures, 
the SBU remains faction ridden and adrift in the aftermath of 
the early December dismissal of former chief Dryzhchany.  In 
fact, the overall fate of efforts to reform the entire law 
enforcement/security sector are unclear.  An outsider, 
Dryzhchany pus
hed a reformist agenda and refused to allow the 
SBU to be politicized in the struggle for power between the 
Presidential and PM teams, as Presidential Secretariat Head 
Baloha allegedly wanted. 
 
18. (C) Comment, cont: The SBU factor bears further watching, 
 
KYIV 00000135  005 OF 005 
 
 
particularly in the wake of ex-SBU chief Radchenko's 
appointment January 12 as Deputy PM in charge of law 
enforcement, national security, and defense related issues 
and agencies.  Also of concern is ongoing Ministry of 
Interior housecleaning of reform-minded personnel affiliated 
with ex-Minister Yuri Lutsenko.  On January 11, new Minister 
of Interior Tsushko appointed as deputy Minister General 
Popkov, an Orange Revolution villain who, as head of the 
Interior Ministry's Ground Forces, verbally authorized troops 
to deploy against protesters on the Maidan the night of 
November 27, 2004, before other security officials 
intervened, warning Popkov to back down.  Media sources 
report that at a January 16 meeting, Tsushko invited nearly 
all oblast police chiefs to submit their resignations. 
 
19. (U) Visit Embassy Kyiv's classified website: 
www.state.sgov.gov/p/eur/kiev. 
Taylor

Wikileaks

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