The movement to establish independent unions in Egypt began prior to the January 25 Revolution of 2011 with the founding of four independent labor unions: the Real Estate Trade Association, the Egyptian Health Technologist Syndicate, the General Union for Pensioners, and the Syndicate of Independent Teachers.[1] After the January Revolution, a number of workers announced they were establishing independent unions, in a step towards independence from unions subordinate to the government. These are labeled “independent” because they are independent from these government unions and organizations, created for particular categories of workers which have monopolized union activity for years.

However, the [state-controlled] unions that had been established in accordance with the current law still consider themselves to be the sole legitimate representatives of the workers, and have not yielded easily to this new situation – which has pulled the rug from under their feet as the official spokespersons for workers. The president of the [state-controlled] Egyptian Trade Union Federation brought a lawsuit before the Administrative Judiciary against the president, the prime minister, and the Minister of Manpower. He called for the removal and voiding of independent unions and trade federations, and the rejection of their establishment.

It must be noted that after the revolution, a Draft Law on the Freedom of Association was prepared and presented as an alternative to the Trade Union Law of 1976, which restricted the right to found unions by establishing a single union for each category of workers.[2] However, this draft has yet to be debated or passed into law, despite demands from workers to pass it into law; and, despite the adoption of the Constitution of 2014, of which Article 76 establishes the freedom to form trade syndicates and federations.[3]

An anomalous legal situation has therefore arisen, whereby unions have been established yet are not regulated by the existing law, despite the fact that the right to establish them is guaranteed by the Constitution. Indeed, the Constitution raises the question of whether the law is constitutional at all. This has prompted those involved in the lawsuit (the president of the Real Estate Trade Association, the secondary representative of the General Union for Public Transportation Workers, and the president of the General Union of Land Transportation Workers) to argue that Articles 4, 7, 13, and 63 of the Trade Union Law are unconstitutional. On June 26, 2016, the court ruled in response, referring these articles to the Supreme Constitutional Court for their ruling on the constitutionality of these provisions. This article explains the reasons behind the court’s decision.

The Revolution as an Influential Factor in the Field of Public Rights and Freedoms

In its ruling, the court stated clearly and explicitly that the revolutions of January 25 and June 30 amount to a new constitutional reality that has influenced the Egyptian legal system, particularly in the field of public rights and freedoms. According to the ruling, the 2014 Constitution is the manifestation of a constitutional directive issued by the people and stemming from the revolution. As an expression of the people’s will, the Constitution must be respected. It follows that any matter that violates the statutes of the Constitution is considered an affront to the will of the people. Thus, the executive and legislative powers must adhere to the statutes of the Constitution when proposing and issuing laws. Likewise, the judiciary must heed constitutional principles and dictates, and be sensitive to “any constitutional violation or attack against a constitutional principle, whether by its own initiative or at litigants’ request”, and refer the matter to the Supreme Constitutional Court. This is to protect the Constitution from any law that runs counter to its provisions, in accordance with Article 29 of the Law on the Supreme Constitutional Court.[4] According to the court, a judge’s refusal to do so would render him suspended, as per the provisions of the Constitution, and in denial of obligatory constitutional justice. Indeed, this kind of recourse is considered one of the means of “accessing the proper path” to such justice.

This raises the level of the courts’ responsibilities to include protecting the Constitution from violation. It also might be considered an appeal to the courts to exercise the role designated for them in the law regulating the constitutional court; particularly given that the majority of the decisions to refer articles or legal texts to the Supreme Constitutional Court for a ruling on their constitutionality result from the initiative of a litigant, rather than from the court itself.

In the opinion of the court, the revolution took place on the shoulders of the working class, who are foundational to the makeup of the [Egyptian] people. It follows that the state must “raise up within this class a spirit of democratic understanding, motivating improved service to the national economy, and must reject the attitude of superiority that comes from within the government organization itself”. The court thus considered the revolution as a factor that increased the need to respect the popular will as represented in the current Constitution, and to guarantee the rights and freedoms of workers as participants in the revolution. Guaranteeing the freedom to form unions is framed as an example of respecting this right.

2. Freedom of Association According to the Egyptian Constitution and International Treaties

After establishing the importance of legislative provisions conforming with the Constitution, the court reviewed statutes of the Egyptian Constitution, as well as international treaties relevant to the trade union freedoms (the subject of the lawsuit itself). The court also considered international jurisprudence concerning the relationship between international and domestic law, and addressed the special status of human rights conventions in relation to domestic law.

A. Provisions of the Egyptian Constitution

Prior to reviewing the provisions of the Egyptian Constitution relevant to unions and the freedom of association, the court distinguished between labor unions, trade unions, and professional associations. The court defined labor unions in the most general term, comprising organizations of business owners or workers in a profession or particular field of labor. In the eyes of the court, unions [are organizations that] aim to “defend their rights [the rights of their members], represent their profession, and improve their economic, social, cultural, intellectual, and professional status, and protect their interests”, while working for “the improvement of the terms and conditions of their work and express the unity of shared economic interests of their members”. Labor unions have the right to represent their members to other parties and to enjoy a full legal personality, without need for delegation or deputization. The court defined trade unions as “organizations formed for the purpose of improving the terms and conditions of labor and protecting the economic and social interests of its members through collective bargaining and placing pressure on business owners, governments, and legislative bodies, and in some cases, through collective protest and political action”.

The ruling interpreted the Egyptian Constitution to guarantee the idea of independent labor unions, of which there might be several within a single profession or group of related occupations. This differs from its designation of professional associations, which were limited to a single organization for each profession, in agreement with the provisions of international treaties. The court affirmed that based on the Egyptian experience, the trade union movement had produced a governmental organization that did not represent or express “the concerns and hopes of the working class, whether in confronting the government or business owners”.

The court subsequently took the view that placing restrictions on procedures for establishing and organizing unions, restricting them to a single governmental organization headed by the Egyptian Trade Union Federation, forbidding the establishment of trade organizations that embody the true will of the working class, are potentially unconstitutional. In the court’s view, these undermine the right to association that is, in essence, an expression of the popular will of a class or a profession.

B. Do International Treaties take Precedence over the Constitution? And do Human Rights Conventions have a Privileged Status?

Next, the court addressed the status of international law in relation to domestic Egyptian law in order to rule on the extent to which the articles of the law being challenged respected international treaties.

The ruling clarified the difference between the bilateral and the unilateral schools of international legal jurisprudence. It indicated a preference for a bilateral approach, noting that “international law and domestic law are two parts of a single integrated law”, and clarifying that the opinion of the court tended towards the notion that “the relationship between international and domestic law is a relation of linkage that does cancel out difference, and the subordination of one to the other is not based on which was issued earlier or later, but rather on a technical basis solely determined through position in the hierarchy of principles and jurisdictions, and the subordination of the lowest in them to the highest, regardless of which is most recent chronologically”.

This indicates that the court is convinced of the importance of international law, and convinced that domestic legal provisions must respect its principles, regardless of which preceded the other. It was based on this principle that the court interpreted Article 93 of the Egyptian Constitution. Article 93 states that Egypt will comply with human rights treaties, which carry the force of law once they are published.[5] It also clarified the question of whether this provision elevates human rights law treaties to a higher status than domestic law.

According to the court, the precedence of human rights treaties is not a matter of “degree within the hierarchy of Egyptian legislation, but rather a question of the degree of legislative compliance”. In other words, the degree to which legislation conforms with human rights treaties amounts to the integration of those treaties into the framework of legislation itself. At the same time, other international agreements might also be integrated due to their direct significance and impact on the lives of citizens. It follows that the state is obligated to make the necessary changes to current laws so that they conform to these treaties, unless such provisions might be unconstitutional.

By elevating the status of human rights treaties to this level, the court has emphasized the protection of rights and freedoms by urging the legislature to review the provisions of domestic laws in order that they respect international human rights principles. Likewise, the court ensured that human rights advocates have a new tool for lobbying the state to respect the principles of international law in protecting these rights. This is particularly so given that the court linked the state’s obligation to conform with human rights treaties, as laid out in Article 93 with its obligation to “establish a democratic system to elevate the status, dignity, and rights of the individual”.

On this basis, the court held that Articles 4, 7, 13, and 63 of the Trade Union Law are in violation of international treaties, which declare the freedom to form and establish unions; the court also indicated that these articles are potentially unconstitutional and called for their referral to the Supreme Constitutional Court for its ruling on this matter.

By referring these articles to the Supreme Constitutional Court on the basis that they contradict provisions of both the Constitution and international treaties, the court has protected independent unions from dissolution and kept their existence from being compromised. Further, it has established legal jurisprudence respecting various trade union freedoms. The court has also urged the legislature to revise current laws and amend those that contradict the Constitution and international treaties, particularly those that enumerate human rights – something the Egyptian legislature has not done since the new Constitution was passed in 2014.

This article is an edited translation from Arabic.

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[1] See Saber Barakat’s, “How a Labor Union is Established”, issued by the Egyptian Center for Economic and Social Rights, the Egyptian Federation of Independent Trade Unions, the General Union for Pensioners, the Health Technologist Syndicate, the Syndicate of Independent Teachers, the Egyptian Committee for Labor Rights, the Joint Campaign for Trade Union Freedoms, the Popular Democratic Movement (Hashad), and the group Tadamun (Solidarity), April 2011.

[2] See Article 7 of the Trade Union Law, which stipulates that “unions are structured in a hierarchical manner on the basis of the unity of the trade union movement. Its levels comprise the following union organizations: the Trade Union Committee or Professional Syndicate Committee, the General Syndicate, and the General Trade Union Federation. The General Trade Union Federation will rule on the rules and procedures for forming these organizations and their branches”; also, Article 13 of the Trade Union Law stipulates that “workers and for apprentice workers working in professional groups or related industries, or those participating in a shared form of production, have the right to form a single general union on the national level, in accordance with the regulations specified by the trade union organization”.

[3] Article 76 of the Egyptian Constitution states: “The establishment of syndicates and federations on democratic basis is a right guaranteed by Law. Syndicates and federations shall acquire legal personality, shall have the right to practice their activities freely, shall improve the level of efficiency among their members and defend their rights and interests. The State shall guarantee the independence of all syndicates and federations and their boards of directors may only be dissolved by a court judgment.”

[4] Article 29 of the law regulating the Supreme Constitutional Court stipulates that “the court is entrusted with judicial oversight of the constitutionality of laws and regulations in the following ways: a) if one of the courts or bodies that has judicial jurisdiction, while hearing a lawsuit or case, deems the content of a law or regulation to be unconstitutional, they must adjudicate the conflict, halt the legal proceeding, and refer the documents, without charging fees, to the Supreme Constitutional Court for its ruling on the constitutional issue; and, b) If, during the hearing of a case before a court or body with judicial jurisdiction, one of the litigants argues that the content of a law or regulation is unconstitutional, and the court deems the objection valid, the case must be postponed. A period of time must be specified, not to exceed three months, during which the matter must be raised before the Supreme Constitutional Court. If the case is not heard during this time period, the objection will be considered as though it was not”.

[5] Article 93 of the Egyptian Constitution states that “The State shall be bound by the international human rights agreements, covenants and conventions ratified by Egypt, and which shall have the force of law after publication in accordance with the prescribed conditions”.