Publication: Eurasia Daily Monitor Volume: 4 Issue: 36

As Ukrainian President Viktor Yushchenko and Prime Minister Viktor Yanukovych continue to dispute each other’s powers, interpreting the constitutional amendments of 2004-2006 each in his own favor, both hope for support from the judiciary. On February 5 Yushchenko referred the new law on the Cabinet of Ministers, which cuts his authority, to the Constitutional Court (see EDM, February 9). Later on, Yushchenko instructed his secretariat to find out from the Constitutional Court whether he can dismiss the cabinet assembled by Yanukovych. The Cabinet almost simultaneously filed several lawsuits against Yushchenko – obviously tit for tat.

On February 15, Yushchenko’s legal advisor Ihor Pukshyn announced at a briefing in Kyiv that the presidential secretariat was going to ask the Constitutional Court to clarify whether the president can dismiss the Cabinet. Pukshyn explained that there is an article in the constitution that stipulates that the Cabinet is accountable to both parliament and the president. This, according to Pukshyn, should mean that the president, not only parliament, can dismiss the Cabinet.

The president had this right before 2006, when the constitutional amendments of December 2004 came into force. The amended constitution, however, leaves to the president only the right to ask parliament to vote no confidence in the Cabinet, First Deputy Minister of the Cabinet of Ministers Olena Lukash explained, expanding on Pukshyn’s statement. The final word is up to parliament, which is currently dominated by Yanukovych supporters. This means that Yushchenko would have no chance of getting rid of Yanukovych if he sought parliament’s help.

Yanukovych flatly dismissed Pukshyn’s announcement, speaking to journalists on February 16. “If lawsuits against certain presidential decrees were a reason for the president’s indignation, I think this is all emotional,” said Yanukovych. He meant the lawsuits that the Cabinet decided at its meeting on February 15 to file against Yushchenko, citing “the president’s illegal orders regarding several regional administration heads,” according to Pukshyn.

One of those lawsuits regards the governor of Kharkiv Region, Arsen Avakov. The Cabinet filed it at a district court in Kyiv, complaining of Yushchenko’s “illegal inaction” regarding the dismissal of Avakov. On June 3, 2006, the Kharkiv regional council voted no confidence in Avakov, whom Yushchenko had appointed immediately after the Orange Revolution. Avakov is, however, still the governor.

Although the constitutional reform has put an end to the president’s control over the Cabinet, the constitution preserved the president’s right to appoint regional governors. In Kharkiv, Yanukovych’s allies have controlled both the mayoral office and the regional council since the local elections of March 2006, but Yushchenko decided to keep loyal Avakov. As he did not react to the no-confidence motion in Avakov, Yanukovych last October officially petitioned Yushchenko to dismiss Avakov, but Yushchenko ignored the petition.

The Cabinet believes that Yushchenko violated the law by not firing Avakov, but the presidential secretariat says that no legal violation occurred. Pukshyn said that a separate service would be set up at the secretariat in order to represent Yushchenko in court. Currently, the Ministry of Justice formally represents the president, but when the Cabinet, to which the ministry is subordinated, is the plaintiff and the president is the defendant, a conflict of interest arises. Yushchenko’s team is apparently preparing for serious legal warfare with the Cabinet – a timely precaution, given that Lukash has been quoted as saying that the Cabinet is going to dispute in courts about 10% of the decrees Yushchenko has issued.

This exchange of blows may be used as an element of pressure or a bargaining chip by both sides, but it is unlikely to result in the dismissal of the Cabinet. UNIAN news agency has quoted the head of the Kyiv-based Center for the Study of Political Values think tank, Oles Doniy, who described the presidential secretariat’s intention to turn to the Constitutional Court over the possibility of dismissing the Cabinet as “legal illiteracy.”

Doniy also pointed to the danger of de-legitimizing the Constitutional Court in the eyes of the general public, as the court’s integrity may be publicly questioned by either of the two sides, depending on the verdict. “If the presidential secretariat prepares this request… it means that it for some reason hopes for a positive result,” Doniy said. “Consequently suspicions arise regarding financial or administrative influence on CC judges.”

Constitutional Court chief justice Ivan Dombrovsky, who was appointed last year, senses pressure. Speaking at his first press conference on February 15, Dombrovsky did not rule out his resignation if top officials and the mass media put excessive pressure on the court. He said that he would not trade his moral integrity “even for a million dollars” and that nobody has ever offered bribes to him. Dombrovsky also denied media reports alleging that the Court would soon declare the Yanukovych’s Cabinet illegal.

Yushchenko, meeting with newly appointed judges on February 19, warned them against taking sides in political fights. “Some judges have chosen political submission as their way of life,” he said.

(Interfax-Ukraine, Ukrayinska pravda, February 15, 16, 19; UNIAN, Ukrainski novyny, February 16)