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08KYIV192, UKRAINE: YUSHCHENKO PUSHES AHEAD WITH

January 29, 2008

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08KYIV192 2008-01-29 12:02 2011-08-30 01:44 CONFIDENTIAL Embassy Kyiv

VZCZCXRO4018
PP RUEHLMC
DE RUEHKV #0192/01 0291202
ZNY CCCCC ZZH
P 291202Z JAN 08
FM AMEMBASSY KYIV
TO RUEHC/SECSTATE WASHDC PRIORITY 4805
INFO RUEHZG/NATO EU COLLECTIVE
RUCNCIS/CIS COLLECTIVE
RUEHLMC/MILLENNIUM CHALLENGE CORP WASHDC

C O N F I D E N T I A L SECTION 01 OF 04 KYIV 000192 
 
SIPDIS 
 
SIPDIS 
 
E.O. 12958: DECL: 01/29/2018 
TAGS: PGOV PREL PINR UP
SUBJECT: UKRAINE: YUSHCHENKO PUSHES AHEAD WITH 
CONSTITUTIONAL REFORM 
 
REF: KYIV 04290 06 
 
Classified By: Political Counselor Kent Logsdon for reasons 1.4(b,d). 
 
1. (SBU) Summary.  President Yushchenko is moving forward 
with his plans to further amend the constitution in an effort 
to clarify poorly written articles, but constitutional 
experts are not convinced that this process will succeed. 
Yushchenko issued a decree in late December 2007 forming the 
National Constitutional Council (NCC) and since then the 
Presidential Secretariat has received more than 230 
nominations for members for the Council from political 
parties, regional government, and civil society 
organizations.  The President will now select the membership 
and the group should convene for the first time in February. 
However, the Civic Constitutional Committee (CCC), a group of 
respected NGO and think tank leaders, has warned publicly and 
told us privately that the President's short timeline -- the 
goal is a constitution ready for referendum on June 28, 2008 
(Ukraine's Constitution Day) -- and his direct control over 
the process make the possibility of a high-quality, 
consensus-based constitutional draft unlikely.  The experts 
we spoke with, not surprisingly, credited Presidential 
Secretariat Head Baloha with pushing the aggressive timeline 
 
SIPDIS 
and a process aimed at benefiting the President.  They 
instead advocate a Constitutional Assembly, comprised of 
elected representatives, who would have civil society backing 
to consider a draft and put it up for a referendum, but on a 
much slower timeline. 
 
2. (C) Comment.  We will have a better sense of how this 
process will work after Yushchenko selects the members of the 
Council and they hold their first meeting.  If Yushchenko 
includes the political opposition and a broad range of 
non-governmental experts, it will indicate that he is seeking 
a broad-based reform process based on consensus.  On the 
other hand, if he tries to ram a draft written by his 
Secretariat through the process by the end of June without 
 
SIPDIS 
obtaining a broad consensus, his critics will interpret this 
as showing a lack of commitment to needed reforms in favor of 
strengthening the President's political position.   Ukraine's 
constitution remains deeply flawed by the hastily-drafted and 
approved amendments made to it in 2004 during the Orange 
Revolution that came into force on January 1, 2006.  Real 
changes could be one more step on Ukraine's path to Europe, 
but amendments that result in superficial alterations to the 
balance of power could end up continuing the political 
conflicts that have plagued Kyiv for the past year and a 
half.  End summary and comment. 
 
NCC: First Step Forward or Presidential Tool? 
--------------------------------------------- 
 
3. (SBU) Further amendment of the constitution has been a 
constant subject of discussion by senior politicians since 
the reforms were adopted on December 8, 2004 (reftel), but 
Yushchenko's new National Constitutional Council (NCC) is the 
first concrete attempt to move the process forward.  The 
President announced the NCC December 5, 2007, at a meeting 
with NGO leaders and local government officials, pledging to 
make 2008 the year of constitutional reform.  He called for 
the Council to be nonpartisan and said it should involve the 
Rada, local government, and civil society.  On December 27, 
he issued the formal decree establishing the NCC.  In the 
decree, it says the task of the NCC is to overhaul and draft 
a new constitution.  The President chairs the Council, with 
members selected by the President from nominations submitted 
by all Rada factions, other political parties, the Crimean 
parliament, the oblast administrations (including Kyiv and 
Sevastopol), the National Academy of Science, and 
national-level human rights groups and called for nominations 
by January 15.  The decree also calls for the process to be 
open and for the draft to be assessed by the Venice 
Commission.  It also specifies that two-thirds of the Council 
composition must be present to have a quorum at a meeting, 
simple majority votes are needed with the Council Chairman 
(i.e. President Yushchenko) casting the tie-breaking vote if 
needed, and Council decisions can be enacted through 
presidential decree.  (Embassy Note:  The current 
constitution addresses only the required procedures for 
amending the document; it is silent on how to approach the 
drafting of a new constitution.  End Note.) 
 
4. (SBU)  In total the Secretariat has received more than 230 
nominations, although the decree does not specify how many 
members will actually be selected.  On January 24, Deputy 
Presidential Secretariat Head Stavnichuk, who is helping 
coordinate the process, told the press that each political 
force will have no more than eight members and that "all 
political parties would have equal conditions."  Yushchenko 
 
KYIV 00000192  002 OF 004 
 
 
held a meeting with the leaders of all political forces on 
January 22 to discuss the Council's creation and membership. 
The meeting was attended by all Rada faction leaders, 
Pres
idential Secretariat Head Baloha, Deputy Head of the 
Secretariat Stavnichuk, and NSDC Secretary Bohatyryova 
 
SIPDIS 
Tymoshenko did not attend -- she canceled several meetings at 
that time because she was ill -- instead sending DPM Vasyunyk 
in her place, according to press reporting. 
 
5. (SBU) Rada Speaker Yatsenyuk has been very supportive of 
the President's initiative, encouraging all parties to get 
their nominations in on time.  On January 16, at a local 
conference, he warned that the constitution cannot be 
constantly changed to suit every political force or situation 
and it is not a tool to be used by the coalition or 
opposition for political gain.  Yatsenyuk praised 
Yushchenko's initiative to set up the NCC, saying it "is the 
right approach to introduce phased-in and very balanced" 
changes to the constitution.  He urged all political forces 
to seek consensus on the process and to remember that it is a 
national document. 
 
Civic Constitutional Committee: Looking at the Process 
--------------------------------------------- --------- 
 
6. (SBU) A group of NGO and think tank leaders in October 
2007 formed the Civic Constitutional Committee in order to 
advocate for constitutional reform.  In separate meetings 
with three members -- Ihor Kohut of the Laboratory of 
Legislative Initiatives, Ihor Koliushko, former legal analyst 
for the Secretariat and now head of the Center for Political 
and Legal Reforms, and Volodymyr Horbach from the Institute 
for Euro-Atlantic Cooperation -- they all said that the 
committee's purpose is to advocate for reform, increase civil 
society's role in the process, and provide recommendations on 
the best procedure for amending the constitution.  They all 
underscored that they were not working on the substance of 
actual reforms.  Horbach added that if civil society plays a 
role in reforming the constitution, they will act as a moral 
compass to keep politicians within the new constitutional 
framework.   The 1996 constitution, for better or for worse, 
was a compromise and consensus-based and it lasted 10 years. 
 
 
President's NCC Too Politicized 
------------------------------- 
 
7. (SBU) Horbach said that while the President was headed in 
the right direction with the NCC, he was not going about it 
the right way.  To truly amend the constitution, there needed 
to be consensus among all political forces and support from 
the people.  Therefore, the NCC, which is being managed by 
the Secretariat and staffed mainly by politicians appointed 
by their parties, would not inspire confidence.  Koliushko 
agreed that the most dangerous way to amend the constitution 
would be to allow the politicians at the top level to simply 
divvy up power and amend the constitution to their own 
benefit.  If Ukraine is going to adopt a new constitution, he 
argued, they should bring in civil society from the 
beginning, in order to give the people a sense of ownership 
over the new constitution. 
 
8. (SBU) Horbach said that the view of rule of law, both at 
the elite and public levels, was that laws are flexible and 
can be ignored or contravened when inconvenient.  Moreover, 
the constitution had taken serious beatings -- when it was 
amended unconstitutionally in 2004, when Yushchenko disbanded 
the Rada in 2007, and when political forces were blockading 
and manipulating the Constitutional Court in both 2006 and 
2007.  Koliushko said that for a long time he had thought 
that the flaws in the current constitution could be fixed 
through legislation, but that had not worked. 
 
9. (SBU) Horbach and Koliushko told us that that the 
Secretariat's goal for the NCC was to have something ready 
 
SIPDIS 
for a referendum to be held on June 28, 2008 (Ukrainian 
Constitution Day).  Horbach said that every department in the 
PS was now working on constitutional reform -- it was their 
top priority.  Horbach said that he understood the 
presidential team's plan was to develop a constitution that 
solidified the President's top position in Ukraine, but gave 
the prime minister enough power in order to convince 
Tymoshenko to stay put and not run for President in 
2009/2010.  Given the fragility of the coalition, the PS was 
hurrying as fast as it could to get a draft into play. 
Koliushko doubted that a draft could be reviewed by the 
Venice Commission, as instructed in the presidential decree, 
and still be ready by June. He thought that Yushchenko 
himself did not really know how this would play out. 
Koliushko also was concerned that the presidential team had 
 
KYIV 00000192  003 OF 004 
 
 
its own agenda, i.e. power -- this was also evident, he said, 
in some of the bills the Secretariat had recently submitted 
to the Rada, particularly the draft law on the Cabinet of 
Ministers.  In addition, he expressed concern that Yushchenko 
could set a precedent that could open the path for every 
future President to amend the constitution to his or her 
liking. 
 
10. (SBU) Both Horbach and Koliushko believed that if 
presidential opponents on the NCC objected to Yushchenko's 
draft or tried to put up their own versions for a vote, he 
might just pull the plug on the whole project.  The worst 
case scenario would be if the presidential team pushed their 
draft through the referendum over objections and then certain 
regions of the country, such as Donbas and Crimea, refused to 
accept it.  When asked whether the presidential team was 
thinking about their European aspirations and image when 
pushing constitutional reform so quickly, Koliushko said that 
Baloha, who is driving the process, acts first, thinks 
second.  Koliushko said Baloha has been successful in this 
approach so far, but it is a risky strategy.  Horbach thought 
it likely that the political sides could continue to fix 
constitutional inconsistencies and contradictions through 
legislation, like the CabMin law.  Horbach pointed out that 
President Kuchma, with far more power then than Yushchenko 
has now, had tried to force amendments to the constitution 
and failed; how could Yushchenko hope to succeed without 
consensus? 
 
Constitutional Assembly: A Better Alternative? 
--------------------------------------------- - 
 
11. (SBU) The CCC was advocating a Constitutional Assembly as 
the proper means to amend the constitution - with members 
selected through direct popular vote, delegates from 
Ukraine's regions, and representatives of the major political 
forces.  As Kohut described it, the Assembly would draft the 
new version of the constitution, or have a group of experts 
draft it, and put it up for approval by referendum. 
 
12. (SBU) Kohut, Horbach, and Koliushko all agreed that in 
order to make a Constitutional Assembly a reality, there 
needed to be a constitutional amendment creating and 
empowering such a body, thereby requiring Rada support and &#x00
0A;cooperation.  (Embassy Note.  The current constitution only 
addresses how to deal with amendments, not the drafting of an 
entire new constitution.  Therefore, a constitutional 
amendment is not required to call a constitutional assembly; 
however, its advocates believe that this is one way to ensure 
its legitimacy.  End note.)  However, none were certain how 
enthusiastic the Rada was about this plan.  Koliushko 
estimated that they currently had the backing of a couple 
dozen MPs.  He thought that an easier alternative might be 
for the Rada to adopt a law on writing a new constitution, 
because a law would only require a simple majority vote, 
whereas a constitutional amendment required a two-thirds 
majority. 
 
13. (SBU) Horbach said that the CCC was meeting once every 
week or two to talk about their strategy.  Koliushko said 
that the CCC planned to hold round tables in Ukraine's eight 
largest cities between February and May -- funded by the 
Soros-backed Renaissance Fund -- to discuss constitutional 
reform with civic organizations, local NGOs, local political 
forces, and constitutional law departments in universities. 
Koliushko acknowledged that if political parties do not 
participate, it could undermine their whole effort.  However, 
he said that if they can build a groundswell of support it 
may force the Rada and/or President to agree to their 
proposal for a Constitutional Assembly.  Horbach acknowledged 
that the process would take a long time.  (Note.  Just to 
amend the constitution to allow for the Constitutional 
Assembly would take until fall 2008 at a minimum.  Then they 
would need to organize elections for its members.  This could 
easily be a a two-to-three-year process.  End note.)  Thus, 
they believed, the presidential team would move ahead with 
its own shorter agenda and timeline. 
 
Multiple Drafts Already Prepared 
-------------------------------- 
 
14. (C) Complicating this process may be that many people are 
trying to author new constitutions.  Last summer, Deputy 
Secretariat Head Bezsmertniy passed the Ambassador three 
 
SIPDIS 
different drafts based on different Western models.  Horbach 
told us that he knew of two drafts currently under 
consideration by the Secretariat.  The first was written by a 
group led by current CEC head and former CC judge Shapoval. 
The second was more radical and more strongly 
pro-presidential and was written by a group that included 
 
KYIV 00000192  004 OF 004 
 
 
Stavnichuk.  In addition, constitutional law expert 
Rechytskiy, a former Fulbright Scholar based in Kharkiv, told 
us in October, 2007 that he had prepared a draft of the 
constitution for the Kharkiv Human Rights Group.  Shortly 
thereafter, he was invited to the Secretariat, where Deputy 
Head Pukshyn gave him $10,000 to modify his draft and produce 
a short outline for the President and a longer concept paper 
for Secretariat experts.  According to Rechytskiy, Pukshyn 
had told him they wanted an alternative draft to one already 
being worked on by experts and that they did not want to 
involve "old-school" constitutional lawyers, such as 
Shapoval.  Horbach also said that lots of experts and 
political forces were also writing their own constitutions, 
which would just increase the level of competition. 
 
What People Are Advocating 
-------------------------- 
 
15. (SBU) Rechytskiy told us that the draft he gave to the 
Secretariat favored a strong presidential system, a bicameral 
 
SIPDIS 
legislature, and removing all the social-economic language 
from the constitution in favor of focusing on fundamental 
rights and freedoms -- something similar to the U.S. model. 
Koliushko told us that he believed Ukraine needed to keep its 
mixed parliamentary-presidential system -- to move to one or 
the other would be dangerous.  However, the powers and 
responsibilities of the different branches could be 
clarified.  The entire Cabinet should be selected by the Rada 
-- even if the President retains the right to make 
nominations for FM and DefMin, they should not be binding on 
the coalition.  In turn, it should be clear that the 
President is the Head of State.  Koliushko would also give 
the judiciary more power to select its own judges or have a 
say in the senior judicial nominations made by the President 
and parliament. 
 
16. (C) Opposition leader Yanukovych told the press that he 
thought decentralization of power was a key element for 
constitutional reform.  (Note.  Although it is generally 
agreed that Ukraine needs to devolve a lot of powers and 
responsibilities from Kyiv to the regional level, it is not 
surprising that Regions would advocate a more federal system, 
given that their power is based in a specific part of the 
country -- regions that control much of Ukraine's wealth. 
End note.)  Yanukovych also called for a bicameral 
legislature. 
 
17. (U) Visit Embassy Kyiv's classified website: 
www.state.sgov.gov/p/eur/kiev. 
Taylor

Wikileaks

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