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February 15, 2007

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Reference ID Created Released Classification Origin
07KYIV361 2007-02-15 15:36 2011-08-30 01:44 CONFIDENTIAL Embassy Kyiv

DE RUEHKV #0361/01 0461536
P 151536Z FEB 07

C O N F I D E N T I A L SECTION 01 OF 03 KYIV 000361 
E.O. 12958: DECL: 02/15/2017 
REF: A. KYIV 0225 
     B. 06 KYIV 4435 
     C. KYIV 0135 
Classified By: Ambassador for reasons 1.4(a,b,d). 
1. (SBU) Summary.  The controversial Law on the Cabinet of 
Ministers, which tips the balance of power toward the Prime 
Minister at the President's expense, continues to be a 
political football on Kyiv playing fields.  The February 2 
decision by the Rada (parliament) and Government to 
officially publish the law as passed January 12, thereby 
brought it into force, without meeting President Yushchenko's 
calls for compromise or acknowledging his claim to have 
vetoed the law.  Yushchenko has appealed the law to the 
Constitutional Court, both on substantive and procedural 
grounds.  He requested that the Court give the appeal "urgent 
status", which would speed up the timeline for issuing a 
ruling.  When the Rada came back into session February 6, one 
of its first acts was to consider a bill with amendments to 
the law introduced by Regions MP Yuriy Miroshnychenko who 
claimed they were based on Yushchenko's requested changes for 
the law; the bill was approved in its first reading on 
February 9 and was referred to committee.  The President's 
representatives have refuted Miroshnychenko's claims, saying 
that Regions wanted to give the air of being cooperative, 
while amending the law in ways that do not satisfy 
presidential concerns. 
2. (C) Comment.  Despite talk from the President and Prime 
Minister's sides in January and early February that a 
compromise was desired, the Rada coalition chose to pass the 
law as it was, put it into force, and then unilaterally amend 
it, rather than cooperate on the law early on and hold a new 
vote, or work together on amending the text.  It seems to be 
a point of pride with the coalition to demonstrate that 
Yushchenko's second veto held no legal validity and that they 
fully control legislation of laws (reftel A).  Nonetheless, 
if the coalition moves ahead in amending the law 
"unilaterally," Yushchenko still can veto it -- the unknown 
is whether Tymoshenko might be convinced to vote again for an 
override.  While the Constitutional Court deliberates, the 
new unamended CabMin law remains in effect and for at least 
the near-term, gives Prime Minister Yanukovych a leg up on 
President Yushchenko.  End summary and comment. 
Who Did What When?  A CabMin Law Timeline 
3. (SBU) The path that the controversial legislation has 
followed has been complicated by political machinations, 
constitutional challenges, and pending judicial 
interpretations.  In the fall of 2006, two drafts of the bill 
were introduced in the Rada--one written by the CabMin and 
the other by the Presidential Secretariat (reftel B).  The 
CabMin's version was adopted by the Rada on December 21, 
2006.  Yushchenko vetoed the bill seven days later.  On 
January 12, 336 Rada MPs voted to override the veto. However, 
due either to technical error or conscious intent, the text 
of the law approved during the veto override in January 
differed from the text of the original law, thereby 
technically making it a different piece of legislation under 
Ukrainian law.  On January 19, Yushchenko again vetoed the 
law, arguing he was vetoing a second--and different--CabMin 
law.  The Presidential Secretariat also obtained a 
questionable ruling from a municipal court judge in 
Mukacheve, the hometown of Presidential Secretariat Head 
Viktor Baloha, prohibiting Speaker Moroz from promulgating 
the law (note: the judge was subsequently fired).  After 
weeks of hemming and hawing and ignoring the question of 
Yushchenko's second veto, Speaker Moroz and the Cabinet first 
unofficially promulgated the law on the internet and finally 
published it officially in the Rada and Government's 
designated periodicals on February 2, bringing the law into 
Yushchenko's team: Amending the Law is No Compromise 
--------------------------------------------- ------- 
4. (SBU) During the Rada recess, Speaker Moroz signaled 
recognition that some clauses in the law in fact were in 
conflict with Constitutional norms, suggesting that the bill 
would be amended in the session starting February 6.  Regions 
MP Yuriy Miroshnychenko introduced a bill of proposed 
amendments to the CabMin law, which he argued incorporated 
the eight principles Yushchenko requested for changes in the 
law.  On February 9, Miroshnychenko's bill passed its first 
reading with 240 votes in favor and was sent to committee. 
The majority of Yuliya Tymoshenko's BYuT opposition deputies, 
the critical bloc in the override of the President's veto of 
the original legislation, abstained from the vote, implying 
KYIV 00000361  002 OF 003 
that their future stand on the amendments was open to 
negotiation.  MPs from the pro-presidential Our Ukraine 
faction Yuriy Kluchkovskiy and Anatoliy Matviyenko claimed 
the amendments did not meet Yushchenko's concerns. 
Presidential representative to the Rada Roman Zvarych said 
that the Rada's adoption of Miroshnychenk
o's amendments 
reflected the coalition's desire to seem like it was 
cooperating with Yushchenko without actually cooperating. 
Yushchenko himself said on February 13 that Miroshnychenko's 
amendments were not worth commenting on because they did not 
bring any balance or harmonization to the current political 
5. (C) Comment.  Since the bill on amending the law has only 
been passed in its first reading, the possibility remains 
that it could be further amended in committee before a second 
vote.  If Regions wanted to compromise, the committee in 
charge of the bill--chaired by Regions MP Tikhonov--could 
address Yushchenko's concerns, but this does not seem likely. 
 Yushchenko's repeated public and private statements in the 
past month that he had reached agreement with Yanukovych to 
modify the law have proved each time to be wishful thinking, 
as Regions repeatedly pushed the ball farther down the road. 
Even so, Yushchenko still has his veto and does not have to 
accept the amendments as passed -- unless Yuliya Tymoshenko 
makes another tactical decision to join with the Government 
and vote for an override.  Interestingly, the timing of the 
amendments was not universally approved of by the coalition. 
Socialist MP Yaroslav Mendus, Speaker Moroz's right-hand man, 
said that the Rada should not have examined Miroshnychenko's 
bill until the Constitutional Court (CC) ruled on the 
original law; nonetheless Regions pushed the first reading of 
the amendments bill through.  End comment. 
Yushchenko Turns to Constitutional Court, Again 
--------------------------------------------- -- 
6. (SBU) Adding to the already overburdened CC docket, 
Yushchenko appealed the CabMin law on both substantive and 
procedural grounds.  Knowing that the CC has more than 80 
cases piled up (in large part due to the 10 months it went 
without judges in 2005-2006), Yushchenko asked the Court to 
give this appeal "urgent status".  According to the 
constitution, the law on the CC, and the CC's rules of 
procedure, if a request for urgency is made, a judge or panel 
of judges will consider the request and then the whole CC 
will vote on whether to grant the urgent status.  Once the 
status is granted, the Court must rule within 30 days. 
However, there is no time limit for how long the CC has to 
decide whether or not the case is urgent.  Given the 
bureaucratic procedures of the CC, it could be a slow 
process. Presidential representative to the Court Volodymyr 
Shapoval said publicly on February 12 that a panel of judges 
was considering the request. 
Remaining Contentious Clauses and Miroshnychenko Amendments 
--------------------------------------------- -------------- 
7. (C) Ref C outlines the key clauses of the CabMin law, 
especially those that may be unconstitutional in reducing the 
powers of the presidency and National Security and Defense 
Council.  While Miroshnychenko's amendments are aimed at some 
of these articles of the law, they do not actually appear to 
improve the legislation or to meet Yushchenko's expressed 
concerns.  The main issues of contention are: 
--Nomination of the Foreign and Defense Ministers.  The 
current law says that if the President does not nominate the 
two ministers within a 15-day timeframe, the Rada coalition 
has the right to name them.  This seems to be the most clear 
violation of the constitution, which explicitly gives the 
right of nomination to the President.  Miroshnychenko's 
amendment does not remove the 15-day limit, but it adds the 
clause that if the Cabinet has 2/3 of its ministers approved, 
then the Cabinet is considered operational.  We believe that, 
given the likelihood that eventually the CC will strike down 
the 15-day limit, this language is an attempt to avoid a 
scenario, described by some in Our Ukraine, in which, if a 
new government were formed, Yushchenko could refuse to name a 
new FM or DefMin and use that as a pretext to declare the 
Cabinet not formed and dismiss the Rada. 
--Nomination of the Prime Minister.  The law says that if the 
President refuses to submit the name of the PM suggested by 
the coalition to the Rada for a formal vote within 15 days, 
the coalition can make the nomination itself.  Miroshnychenko 
did not amend this article. 
---Dismissal of Ministers. Article 19 of the existing law 
gives sole dismissal authority to the PM, eliminating any 
possible differentiation between the dismissal procedures 
KYIV 00000361  003 OF 003 
used against the two ministers nominated by the President and 
the rest by the coalition/PM.  Miroshnychenko's amendment 
clarifies that the President and the Rada majority coalition 
can also fire the FM/DM; the coalition would have the right 
to fire any minister. 
--Deputy Ministers.  Article 23 gives the Cabinet the right 
to appoint and dismiss all deputy ministers, which has been 
another point of contention; Yushchenko had argued that the 
President, as the guarantor of national security, should 
appoint deputy ministers in the Foreign, Defense, and 
Interior Ministries.  Miroshnychenko's amendments would allow 
the President to consult on nominations for the Foreign and 
Defense Ministries. 
--Directives to the Cabinet.  Article 29 states that 
officials of the NSDC, Presidential Secretariat, and other 
agencies formed by the President are not allowed to give 
orders to the Cabinet of Ministers or members of the CabMin 
or interfere in their activities.  However, article 207 of 
the Constitution states that the NSDC controls the activity 
of bodies of executive power in the sphere of national 
security and defense.  It is our understanding that the 
constitution empowers the NSDC to issue direction to the 
CabMin within its competencies; article 29 of the CabMin law 
would thus seem to violate the constitution.  Miroshnychenko 
did not amend this article. 
8. (C) Bio Note: Miroshnychenko is an interesting figure with 
an ever rising profile in both the Rada and the media.  The 
36-year-old businessman, born in Russia, is serving his first 
term in the Rada.  During the 2004 presidential elections, he 
formed a youth movement that was meant to compete with the 
orange youth party Pora, a move which reportedly gained him 
his spot on the 2006 Regions party list (119).  In the past 
year, he has made an effort to involve himself in a variety 
of activities that bring him in contact with the U.S. 
Embassy--he sits on the US interparliamentary group and the 
Gongadze commission, and has been trying to rekindle a 
environmental project that the Embassy ended years ago--but 
he does not always seem constructive.  He claims that an 
Embassy-organized November 2006 trip to Brussels opened his 
eyes to NATO, and his public comments since have been 
cautiously constructive, but Rada colleagues tell us 
privately that he remains strongly anti-NATO.  Articulate and 
energetic, he seems poised to replace recently deceased MP 
Yevhen Kushnaryov as the provocateur of Regions, writing 
hard-line legislation that the party som
etimes uses as its 
starting off point for negotiations with Yushchenko.  For 
example, he recently proposed legislation which would abolish 
the position of NSDC Secretary. 
9. (U) Visit Embassy Kyiv's classified website: 




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