On 28 July 2021, Egypt’s Official Gazette published Law no. 135 of 2021 on Amending Some Provisions of Law no. 10 of 1972 on Non-Disciplinary Dismissal of Public Employees, known in the media as the “Dismissing Brotherhood Law”. Via this law, the government seeks to purge the state’s administrative apparatus of people with extremist and subversive ideas so that the various institutions can perform their roles to the fullest and without obstruction and subversion from extremist elements therein. Under the new law, a public employee may be dismissed without disciplinary process in the case of grave disruption to a public utility or state economic interest, or in the case of serious indications that they have committed actions compromising the country’s national security and safety.[1] The law also deems addition to the terrorism lists regulated by Law no. 8 of 2015 to constitute a serious indication justifying a worker’s non-disciplinary dismissal.[2] According to Parliament’s Constitutional and Legislative Affairs Committee, adopting this law was a “constitutional due” necessary to protect Egyptian national security as it implements Article 237 of the Constitution, which obliges the state to fight terrorism in all its forms.[3] The parliamentary debates over the bill included objections from several representatives of political parties who fear that the law will be misused against anyone with opposing views or used abusively by superiors against their subordinates.[4] Hence, to determine the true motive behind the new law’s adoption, this article sheds light on the nature of non-disciplinary dismissal as a tool in the hands of the executive authority for dismissing public employees without adhering to the default legislative framework governing dismissal and the safeguards it provides.[5]

 

From an Exceptional Law to a Tool for Combating Terrorism: The Legislative Development of Non-Disciplinary Dismissal

The stages in the legislative development of the laws regulating non-disciplinary dismissal of public employees constitute one of the clearest examples in modern Egyptian history of how the executive authority harnesses the law to serve its political goals at certain historical moments. Following the July 1952 Revolution, when the Free Officers regime sought to tighten its control over the state’s administrative apparatus and purge all institutions from the monarchy’s adherents and sympathizers, Decree-Law no. 181 of 1952 on Non-Disciplinary Dismissal of Public Employees was adopted.[6] This law granted the prime minister the power to “dismiss public employees who are not fit for work or are connected to serious flaws or suspicions jeopardizing job dignity, integrity, honor, or reputation” after approval by one of the committees formed in each public department to implement it.[7] Consequently, many government employees were dismissed without any disciplinary procedures, while others resigned out of fear that they would be targeted by their superiors if they continued working.[8]

This law inoculated all decisions issued under it from all forms of judicial oversight by stipulating that they could not be challenged in State Council courts.[9] It also explicitly stipulated that its provisions were only effective for six months.[10] Hence, the executive authority was clearly aware at that time that non-disciplinary dismissal could create job insecurity for public employees if the law were applied permanently.

In 1963,[11] Law no. 31 of 1963 again inoculated decisions to retire, furlough, or dismiss public employees without disciplinary process (now to be issued by the president of the republic) against State Council review by deeming them sovereign acts not subject to any form of judicial oversight.[12] This stipulation remained effective until November 1971, when the Supreme Court ruled it unconstitutional. The court held that such decisions are by nature administrative acts, not any kind of sovereign act, and that denying employees’ right to challenge them is prejudicial to their rights and the right to litigate.[13]

The 1971 Constitution stipulated that the law must regulate non-disciplinary dismissal.[14] Subsequently, Law no. 10 of 1972 on Non-Disciplinary Dismissal was adopted,[15] not just as a necessary constitutional due but also as a tool that the executive branch needed to eliminate the remnants of the Nasserist regime.[16] In reality, the 1972 law provided more safeguards for the people it addressed than its predecessors. While it allowed workers or employees in the state’s administrative apparatus to be dismissed if they “breach job duties in a manner that could gravely compromise production or a state economic interest” or “there is serious evidence of having compromised the state’s security or safety”,[17] it limited the possibility of dismissal for loss of job fitness or loss of confidence and esteem to employees in senior positions.[18] The law’s explanatory memorandum justified the distinction on the basis that senior administration positions are positions of direction and leadership whose occupants may be difficult to hold accountable via the ordinary disciplinary processes. Moreover, the law granted the State Council’s Courts of Administrative Justice complete jurisdiction to adjudicate petitions filed by public employees against administrative decisions to retire, furlough, or dismiss them without disciplinary process, pursuant to the principle of the rule of law and the Supreme Court’s aforementioned ruling. It also obliged the Courts of Administrative Justice to adjudicate such cases within one year of their filing,[19] thereby striking a certain balance between granting the president the authority to make non-disciplinary dismissal decisions and ensuring that those affected by them do not spend many years in court attempting to nullify them.

Based on all the above, we can only interpret the new amendments to the non-disciplinary dismissal law as another step along the same path trodden by the successive Egyptian regimes of various orientations, the path of using this law as a punitive tool against certain groups not wanted inside the state’s apparatuses. This position is supported by several pieces of evidence: the first is the media’s label for the law – the “Dismissing Brotherhood Law” – which accompanied it through the stages of parliamentary debate. The second is several recent government statements that blamed “Brotherhood” and “extremist” elements for certain failures inside the various state institutions.[20] The third is the law’s inclusion of addition to the terrorism lists – which include mostly Muslim Brotherhood members and some political opponents – as one of the grounds for non-disciplinary dismissal.[21] From another angle, these political circumstances surrounding the new law’s adoption noticeably affected its provisions, its phrasing, the cases in which it can be applied, and the groups it addresses, as we will detail below.

 

An Analysis of the New Law’s Provisions: Expanding the Scope for Application and Eliminating Job Security

One of the most salient features of Law no. 135 of 2021 is its expansion of the scope of the groups addressed. Law no. 10 of 1972 could only be applied to workers in “the state’s administrative apparatus or public bodies and institutions and their economic units”. The new law also encompasses workers in “local administration units, public bodies, and other apparatuses with their own budgets, workers whose employment is governed by special laws and regulations, and workers in public sector and public works sector companies”.[22] Consequently, approximately 7 million employees – an absolutely unprecedented number – are subject to it.[23] The expansion is also evident in the fact that all the cases wherein public employees can be dismissed apply to everyone that the law addresses, including low-level employees, contrary to Law no. 10 of 1972 as previously mentioned. It thereby opens the door for low-level employees to be dismissed on imprecise and undefined grounds such as loss of confidence or fitness for reasons not related to health. This change raises legitimate concerns about the new law’s application, the most prominent perhaps being the possibility that it will be used to downsize the state’s administrative apparatus, especially as several media statements have mentioned the government’s desire to achieve that.[24]

The new law also grants the president of the republic the power to “delegate” the power to issue non-disciplinary dismissals to other people, contrary to the previous laws, which all granted it exclusively to the president such that it could not be delegated.[25] This stipulation helped, albeit in a limited manner, to limit the number of non-disciplinary dismissals. With the ability to delegate this power to other officials, such as the prime minister and the relevant ministers, non-disciplinary dismissals are expected to increase unprecedentedly as more people can issue them.

From another angle, the new law makes a crucial amendment to the phrasing of one of the cases wherein non-disciplinary dismissals may be issued. Besides breaches of job duties that could gravely damage a state utility or the state’s economic interests, the new law stipulates that dismissal may occur “if there are serious indications [qara’in]” that the employee has committed acts “compromising the country’s national security and safety”.[26] Before its amendment, the law had required “serious evidence” in the same context.[27] The difference between “indication” and “evidence” is vast. The former is “an indirect means of proof as it is the inference of an unknown thing from a known thing via a mental deduction process that conforms to sound logic and human experience, or the deduction of an unevidenced fact from an evidenced one”.[28] In other words, evidence is more authoritative and weightier than indications. Lowering the bar for dismissing an employee without disciplinary process from “evidence” to mere “presumptions” can only be interpreted as another means of expanding the scope for non-disciplinary dismissals as they need not rely on actual facts proving that the employee engaged in activities harmful to the country’s national security or safety.

Finally, the new law includes several provisions that its supporters believe constitute sufficient safeguards against its abuse or use outside of its set purpose. These “safeguards” center on the obligation to explain the dismissal decisions, interview the employee, and disburse half the employee’s wage in the case of suspension for a period of up to six months until the dismissal decision is issued, along with dismissed employees’ entitlement to all their financial rights to a pension and end-of-service gratuity. In our view, these provisions provide no real safeguards as long as the primary purpose of adopting the law, as we previously explained, is to remove certain unwanted groups from the state’s administrative apparatus. Moreover, while the new law grants the State Council’s Courts of Administrative Justice the jurisdiction to examine challenges filed by employees to the decisions dismissing them, it omits the condition in Law no. 10 of 1972 stipulating that they must be adjudicated within one year. Consequently, people affected by the dismissal decisions may face more drastic financial and psychological burdens as their cases remain pending before the judiciary for long periods.

 

This article is an edited translation from Arabic.

 

Keywords: Egypt, Non-Disciplinary dismissal, Public employees, Muslim Brotherhood

 

[1] Article 2 of Law no. 135 of 2021.

[2] Ibid.

[3] Article 237 of the 2014 Constitution stipulates,

“The state shall commit to fighting terrorism in all its types and forms and tracking its sources of funding in accordance with a set schedule, given the threat it poses to the nation and citizens, while guaranteeing public rights and freedoms”.

[4] “Khawfan min Su’ al-Tatbiq.. ‘al-Misriyy al-Dimuqratiyy’ Yarfudu Qanun al-Fasl bi-Ghayr al-Tariq al-Ta’dibiyy”, Masrawy, 28 June 2021.

[5] Civil Service Law no. 81 of 2016 is the principal legislative framework regulating the work of public employees within the state’s administrative apparatus. See Chapter 7 (Professional Conduct and Discipline) and Chapter 8 (Terminating Service) articles 57-70.

[6] Law no. 181 of 1952, published in the Official Gazette on 14 September 1952.

[7] Ibid., Article 1 and Article 2.

[8] Abd al-Rahman al-Rafai, Thawrat 23 Yuliyu 1952 Tarikhuna al-Qawmiyy fi Saba’ Sanawat 1952 – 1959, Daralmaref, 2nd edition, p. 69.

[9] Article 7 of Law no. 181 of 1952.

[10] Article 8 of Law no. 181 of 1952. (The six-month period was reduced to just four months by Law no. 346 of 1952. However, the reduction was reversed by Law no. 489 of 1954.)

[11] The law’s explanatory memorandum stated that the goal was to “give the government, as a governing authority, a free hand to best organize and administer the public utilities by selecting the most suitable people to serve these utilities and removing those it deems unfit to perform this service”.

[12] Article 1 of Law no. 31 of 1963 on Amending Some Provisions of the State Council Law.

[13] Supreme Court ruling on Case no. 2 of constitutional judicial year 1, issued 6 November 1971.

[14] Article 1416 of the 1971 Constitution.

[15] The explanatory memorandum for Law no. 10 of 1972 stated that it was among the measures and goals of the corrective process that began on 15 May 1971.

[16] This period is known as the “Corrective Revolution”. This term was given to President Anwar Sadat’s process of revising the authority in Egypt after he removed many people – or so-called “centers of power” – occupying senior positions in the state’s administrative apparatus, most of them left-wing Nasserists.

[17] Article 1 of Law no. 10 of 1972.

[18] Ibid.

[19] Article 3 of Law no. 10 of 1972.

[20] “Wazir al-Naql li-l-Nuwwab: Hawadith al-Sikka al-Hadid Sababuha ‘Anasir Mutattarifa La Turidu li-Misr al-Amn”, Masrawy, 26 April 2021. See also “‘al-Ta’lim’ Tu’linu Fasl 1070 Mu’alliman Yantamuna li-Jama’at Irhabiyya”, ElWatan News, 7 October 2019.

[21] Article 2 of Law no. 135 of 2021.

[22] Article 1 of Law no. 135 of 2021.

[23] Statistics indicate that there are approximately 6 million workers and employees in state apparatuses, as well as approximately 760,000 workers in public sector and public works sector establishments.

[24] Statements by former minister of manpower Kamal Abu Eita in “Qanun Fasl al-Muwazzafin fi Misr: Qatil li-l-Aman al-Wazifiyy am Damin li-l-Maslaha al-Wataniyya?”, BBC News Arabic, 12 November 2020.

[25] Article 2 of Law no. 135 of 2021.

[26] Ibid.

[27] Article 1 of Law no. 10 of 1972.

[28] “al-Farq Bayna al-Dalil wa-l-Qarina fi Ithbat al-Jara’im al-Jina’iyya”, Lawyer Egypt.