Strike Regarded as Constitutional Right for All Workers and Employees, Says Supreme Administrative Court

The fourth circuit of the Supreme Administrative Court has deposited the reasoning of its ruling regarding the appeal no. (19485/59SJ [Supreme Judiciary]) in which it stated that the right to peaceful strike is a constitutional right for all employees and workers.

Ruling no. (30/2012) was issued by a court president against an employee at the Ismailiyya Appellate Court to deduce 3 days of her salary and to consider the workdays of February 28, February 29 and March 1 as unpaid absence from work under the claim that she was striking on these days. She appealed against this decision before the Disciplinary Court of Ismailiyya. The court issued the ruling no. (25/18) to cancel the deduction decision and order that she collect her full wage since peaceful strike is a right rather than a crime that requires penalty. The Minister of Justice and the president of the Ismailyya Appellate Court appealed against this ruling before the Supreme Administrative Court which rejected the appeal and upheld the ruling of the Disciplinary Court of Ismailiyya.

The Egyptian Center for Economic and Social Rights stresses that the reasoning of the ruling reveal the most updated principles that the Supreme Administrative Court has issued regarding workers’ and employees’ right to strike. The importance of this ruling does not only emerge from the principle which the court anchors, but also from the ruling issued by the fourth circuit of the Supreme Administrative Court that has issued earlier this year a ruling in appeal no. (24587/61SJ) to force some employees into retirement as it considered striking a means of obstructing the operation of public facilities under the claim that it contradicts the dictates of Islamic Sharia and its Maqased (objectives). Therefore, the recent ruling entails an embedded retraction from what the court has issued before, particularly regarding three major aspects:

First:

The first ruling shows that the court considered that the workers’ right to strike a right recognized by the International Covenant on Economic, Social and Cultural Rights of which Egypt is a party. The court also considered that covenant restricted by Egypt’s reservation not to contradict the rulings of Sharia, which is the reservation on which the court based its ruling and neglected the articles of the Egyptian Constitution. Moreover, the court stated that “the striking of public servants is a crime”. However, in the recent ruling, the court retracted from this view as its new wording states that striking has become a constitutional right for government employees and workers, rather than a crime or a grant. The court stated explicitly in the reasoning of its new ruling “under the 2012 & 2014 constitutions, striking is no longer a grant but rather a constitutional right that is guaranteed to all types of workers, regardless of the type of place they work for, whether it is the government sector, public sector, or private sector).

Second:

The aforementioned ruling viewed the right to strike as “bound to the laws so regulating in a way that does not contradict Sharia. These laws have never been issued until this moment since it was issued. The Supreme Council of the Armed Forces (SCAF) issued decree no. (34/2011) which determines that the legislator [SCAF] was radically biased against employees’ strike”. However, in the current ruling, the court retracted from that view and asserted that the legislator’s inaction to put rules regulating the employees’ practice of their right to strike does not prohibit them from practising that right as it has become a right rather than a crime that requires punishment. It also stated very explicitly in the reasoning of its new ruling “[…] which means that it has become a right that is recognized in principle and the legislator is responsible for the duty of organizing that right. Whether the legislator takes action to organize that right (in the manner that suits the Egyptian people who took it to the streets in two Revolutions in January 25 in 2011 and June 30 in 2013), the workers’ practice of it, providing that the practice is without causing any harm to public facilities, is a constitutional right that requires no punishment.

Third:

The older ruling regarded the strike as an action that obstructs the operation of public facilities and, therefore, hinders the interests of citizens. In other words, according to that viewpoint, an employee does good when they demand for their right through strike, however, this “good” results in evil which is hindering the interests of citizens as the operation of the facility is obstructed by an employee’s strike. Therefore, the Fiqhi rule which supports “providing good and fending off evil” should be abided by under the claim that “the dictates of Sharia do not allow workers at a facility to obstruct the operation of a service provided by the facility to the public”. However, in the recent ruling, the court’s view is an embedded retraction from the viewpoint of the older ruling, as it is based on a new principle that defines a strike as “the workers’ abstention from doing their work”, which naturally entails obstruction of operation in the facility later on. Therefore, it is illogical to say that strike is a constitutional right but when employees practise it, it would be claimed that such an abstention is criminalized and shall be punished. The court’s wording of its recent ruling is as follows “whenever the legislator truly decides so, the means to so achieve shall inevitably become legitimized, as it goes against the logic for the legislator to recognize a right and punish the actions entailed therein, for that would disqualify the right of every value thereof, devastate the concept thereof and confiscate the right in its very essence”.

“The Egyptian State Council differentiates between actions that aim at destroying properties or forcing workers and employees not to carry on their work that some strikes might entail on the one hand, and peaceful strike on the other hand,” said Mr. Khaled Ali, Legal Advisor at the Egyptian Center for Economic and Social Rights (ECESR). Ali added, “Disciplinary or criminal penalties are established based on the actions of vandalism or forced prevention of others from work. However, strike in its own essence is a constitutional right that is recognized for all workers and employees under the international covenants and the Egyptian Constitution, and under the recent principles on which the Supreme Administrative Court settled”.