After its controversial ruling on April 18, 2015, which considered that based on Islamic Law striking is a crime, the Supreme Administrative Court issued a ruling on July 26, 2015 recognizing the right to strike as a constitutional right. The court has recently published its ruling. In this decision, the court upheld a ruling issued by the Disciplinary Court of Ismailia to abolish a decision against an employee in Ismailia’s Court of Appeal. The decision was to penalize the employee for her participation in a strike organized to demand equal financial treatment like other employees in other courts.

The ruling prompts the two following observations:

The Right to Strike is Constitutional for all Employees Without Discrimination

Contrary to its ruling on April 18, 2015, in which the court held that the right to strike is based on the International Covenant on Economic, Social and Cultural Rights (ICESCR), the court considered in its latest ruling that striking is a constitutional right. The court held that a peaceful strike “is no longer a grant, but a constitutional right guaranteed for all categories of workers, whether in the public or private sector”, based on the 2012 and 2014 Constitutions.

Unlike its previous ruling, the court’s current ruling did not distinguish between the public employee and the private sector worker. The previous ruling considered that going on a strike by a state employee is a form of rebellion against authority, and that public employees have a duty to be loyal to the state and the existing system, and to “abstain from attacking the state’s system and social philosophy” even in private gatherings.[1] In this ruling, the court has relinquished this traditional viewpoint of the public employee, maintaining that organizing strikes is a right guaranteed to all workers alike. The Disciplinary Court of Ismailia whose ruling had been endorsed by the Supreme Administrative Court, even held that the strike was “not illegal in any way”.

Absence of Laws Regulating This Right Does Not Render it Inactive

The Supreme Administrative Court confirmed the right to strike, regardless of whether or not laws governing it existed. It stated: “Whether or not the legislator actively sought to regulate this right which is worthy of people who carried out two revolutions -January 25 and June 30- workers’ usage of this right without damage to public facilities is legitimate, protected by the Constitution, and does not entail punishment. Once the legislator enacts a right, it is inevitable that the means to use such a right be legalized. Imposing penalty for the use of such a right is irrational, strips it of its value, completely violates it, and deprives workers of exercising it”.

While the Labor Law regulates the application of the right to strike for private sector employees, the Civil Service Law does not address this matter. The court held that this fact does not lead to disrupting the exercise of this right. It considered striking it down as irrational, especially as it is stated in the Constitution as a right for all citizens. It even considered that the role of the legislator is to legalize the means that allow the exercise of this right, not to strike down its application or penalize citizens for exercising it.

The Disciplinary Court in Ismailia whose ruling was upheld by the Supreme Court, ratified judicial regulations to exercise the right to strike for civil state employees, due to the absence of legislative provisions. The court listed those regulations as follows:

The strike should be declared and the administration should be notified in advance. It should be organized only after reasonable efforts to negotiate have been exhausted;

It should be temporary, and for a pre-declared period;

It should target the public interest[2] without intending to disrupt work or incur damage, holding that this issue is subject to the discretion of the judiciary; and

The strike should be partial, and it should be banned for public workers in essential state service departments, such as in Health, Security and Defense sectors.

In doing so, the court played a discretionary role, and set outlines that the legislator can refer to in the event a legislation is enacted to regulate the strike of civil servants.

The Supreme Administrative Court’s endorsement of this ruling, without any remarks on its part on these criteria, shows that it approves these regulations to exercise the right to strike for civil state employees. It also stressed that the use of such a right should be for the purpose of defending the interests of these workers, and should not cause any damage to public facilities.

Conclusion

With this ruling, the Supreme Administrative Court has established a new jurisprudence regarding the strike of civil servants, based on the Constitution rather than the ICESCR. This decision also urges the Egyptian Parliament, which will commence its work shortly, to review the Civil Service Law and regulate the right to strike for civil servants.

This article is an edited translation from Arabic.

 

 

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[1] See: Menna Omar’s, “Egypt’s Supreme Administrative Court Says Labor Strikes Are a Crime”, The Legal Agenda, June 4, 2015.
[2] The Court defined “public interest” in this section as follows: “the purpose of the strike should be to deliver the complaint or public demands to the higher authorities for consideration, and to the public opinion to inform it.”