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09KYIV404, UKRAINE’S DYSFUNCTIONAL CONSTITUTION: REFORM

March 2, 2009

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09KYIV404 2009-03-02 15:04 2011-08-30 01:44 CONFIDENTIAL Embassy Kyiv

VZCZCXRO6973
PP RUEHDBU
DE RUEHKV #0404/01 0611504
ZNY CCCCC ZZH
P 021504Z MAR 09
FM AMEMBASSY KYIV
TO RUEHC/SECSTATE WASHDC PRIORITY 7400
INFO RUCNCIS/CIS COLLECTIVE
RUEHZG/NATO EU COLLECTIVE

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 
-------- 
 
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 
---------------------------- 
 
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 
--------------------- 
 
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 
------------------- 
 
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 
 
KYIV 00000404  002 OF 002 
 
 
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 
--------------------------------------------- ----------- 
 
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, Referen
dum, 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 
---------------------------------- 
 
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 
------- 
 
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

Wikileaks

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