May 24, 1997
CHRLA has just received three judicial rulings in its favor: The Labor Summary Court has given the Center's lawyers permission to present their pleas to the Supreme Constitutional Court challenging the constitutionality of several provisions of the Trade Union Law (Law 35/1976 amended by Law 12/1995), and of the decrees issued by the minister of labor and the chairman of the General Federation of Egyptian Workers which regulated the November 1996 trade union elections, and gave the administration several ways of excluding unwanted candidates and ensuring pro-government activists remained at the top of the trade union hierarchy.
Through cases filed on behalf of several candidates whose rights were violated during the trade union elections, the Center's lawyers submitted pleas challenging the constitutionality of decision no. 35/1996, issued by the chairman of the General Federation of Egyptian Workers. Specifically, the cases dealt with the decision's stipulation that the two conditions for enjoying the right to candidacy, the payment of syndicate membership fees and the elapse of the legal minimum period of membership, may only be proved by a certificate signed by the chairman of the relevant national trade union. The lawyers also challenged the constitutionality of ministerial decisions nos. 146 and 147/1996, and the constitutionality of articles 4, 24/2, 41/3, 41/4, 45/1, 45/3, 50/last paragraph, 53/2, 61/1, 62/1, 66/2 of the Trade Union Law. These articles were challenged because they imposed complete control of the union system with the administration, in breach of the Constitution.
In one case the lawyers also challenged Art. 36/7 of the Trade Union Law for requiring a worker to be literate in order to enjoy the right to candidacy.
The Center, in the pleas submitted by its lawyers, affirmed the following:
First: The articles of the Trade Union Law being challenged are ones that have opened the door to widespread administrative interference in the formation of trade unions, and have led to the imposition of administrative control on all forms of union activity, whether in proposing candidates, electing candidates, or establishing unions' administrative systems, special regulations and financial regulations. The law has granted the minister of labor either unique authority to decide the above issues, or shared authority with the Chairman of the General Federation of Egyptian Workers. This shared authority takes several forms: from mere consultative authority, in which the minister is required to consult the federation, through requiring the advance agreement of the federation, thus raising the latter to the level of a partner of limited authority, to equal authority, with the legislature granting the minister the authority to issue decrees implementing the structure designed by the federation, and accordingly giving the federation the status of a full partner.
The Center notes in this respect that the administrative guardianship imposed by the legislature grants the competent minister a veto over everything decided by the federation, which has led to its becoming a moribund body whose only vestiges of life are those breathed into it by the whim of the minister.
In this context, it is worth mentioning that the law grants the minister of labor the right to issue decrees necessary for the execution of the law's provisions, and also decrees to regulate both candidate proposal procedures and the election of candidates to unions' boards of directors. It also entitles the minister the right to nominate judicial committees supervising such elections. The law delegates the minister, in consensus with the General Federation, to issue decrees determining the number of full-time union activists, and the conditions and regulations of full-time union activity. The law provides that model union regulations and financial regulations, issued by the General Federation of Egyptian Workers, are not to be executed unless implemented by a decree issued by the minister of labor.
The Center confirms that all these provisions conflict with Art. 56 of the Constitution, which provides a democratic basis for the establishment of syndicates and unions, and states that the formation of the union structure must be based on the free will of its members, and that public authority must not interfere with this structure, but rather that it must be independent of public authority in order to avoid being dominated by it.
The Center added in its pleas that these provisions are in conflict with the rules of the ILO Convention no. 87 regarding union liberty, which authorizes workers to form the organizations which they choose without prior permission and without conforming to any rules except those established by their own free will, in a way that prevents public authority from interfering with their affairs, or limiting or impairing the exercise of their rights.
Second: Citizens satisfying the conditions of eligibility for candidacy for the boards of trade unions are considered in equal legal status with respect to the right to candidacy guaranteed by the constitution; thus their exercise of this right must be on an equal basis, and with the guarantee of equal opportunity to win elections regardless of their means of proving fulfillment of the two conditions of candidacy, namely the duration of membership and payment of membership fees.
The Center's pleas in this regard affirmed that the ordinary legislation did not restrict the ways of proving the conditions of eligibility for candidacy, and that this restriction had been imposed by those who were not competent to impose it, i.e., the minister of labor and the chairman of General Federation of Egyptian Workers. This restriction was imposed without any reason, which leads to the conclusion that this mechanism was invented by those who call for the burial of trade union freedoms as an alternative to the now-abolished authority of the general social prosecutor to exclude candidates. This alternative is found in the implicit power of more than twenty chairmen of national unions to exclude candidates by withholding certificates which prove their duration of membership and payment of fees. Such certificates are considered by Law 35/1996 (issued by the Chairman of the General Federation of Egyptian Workers) as the only admissible evidence proving duration of membership and payment of fees, in spite of the fact that those two facts can be simply confirmed by consulting the records of mandatory wage deductions kept by the worker's employer, with no need for further evidence.
Third: The provisions requiring the literacy of the worker as a condition for candidacy contradict the provisions of the Constitution, which do not subjugate this right to any special qualifications of the worker. In addition, decrees which established arbitrary discrimination between citizens by exempting from literacy tests those who had won previous elections (without holding any educational qualification), while not exempting those who had proposed themselves for candidacy in previous elections unsuccessfully, are also challenged as unconstitutional.
Fourth: Rights to candidacy and to elections are inseparable; therefore, any legal restrictions that sacrifice the citizen's right to candidacy without any substantive basis violate the equal opportunities which must be guaranteed to all competitors, and deprive excluded candidates from discussing their programs and policies. This reduces the choices available to electors to enable them to elect the persons most capable of presenting and defending their interests.
Finally: CHRLA aspires to succeed in its efforts to secure the annulment of these decrees and legislative provisions, which have helped destroy trade union freedom and constitute grave violations of the principles of the Constitution, especially those concerning equal opportunities, equality among citizens before the law, freedom of expression, the rights of citizens to candidacy and election, and their right to establish syndicates and unions on a democratic basis.
In this respect the Center urges both the executive and the legislative powers to put an end to the abuse of legislative authority constantly exercised by the government and its party, which enjoys sweeping parliamentary majority, by issuing legislation that is at fault in its deviation from constitutional provisions, and at fault in its violation of Egypt's international obligations according to its ratification of fundamental international conventions for human rights.
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