Mada Masr
An analysis of the draft constitution
Experts weight in on possible impacts of forced labor, child labor, military tribunals, restrictions on unionization, and the elimination of labor quotas
Tuesday, January 14, 2014
Jano Charbel
The 2013 draft constitution contains a number of provisions which some feared could be used to curb labor rights and freedoms. Other articles could be used to violate basic, internationally recognized, labor rights.
The draft constitution also protects the continued use of forced labor, child labor, military tribunals for civilians, restrictions on the plurality of trade unions and professional syndicates, along with limitations on the right to strike for certain professions.
It also, however, includes measures which could be used to increase labor rights, including workers’ right to a minimum wage and a maximum wage for public-sector administrators, along with the right to establish labor (or class-based) political parties.
Most notably, the charter removed a unique populist measure from the era of President Gamal Abdel Nasser half a century ago, by scrapping the 50 percent quota of workers’ and farmers’ representatives in parliament.
“The provisions of the new constitution are more specific and direct than the constitutions of 1971 and 2012,” says Talal Shokr of the independent Egyptian Democratic Labor Confederation.
“For the first time, the Egyptian constitution has become far less ambiguous,” he explains. “It clearly spells out housing and health rights, along with other social and economic rights.”
Shokr says the charter protects basic rights, including the right to social security, employment opportunities, collective bargaining, and safeguards against punitive sackings of workers and punitive dissolutions of labor organizations.
It also outlines provisions for Egypt’s workers, small farmers, peasants, fishermen, persons with special needs, pensioners, minorities and women, he says.
“Nonetheless, there are a number of reservations I have regarding extant articles in the constitution,” Shokr says.
“For example, the right to strike, according to Article 15, should be regulated in accordance with international law, not in accordance with yet another intrusive and restrictive Egyptian labor law.”
According to Saud Omar, of the independent Suez Regional Union Federation, “This new constitution contains many of the same labor violations contained in the Muslim Brotherhood’s 2012 Constitution; it’s merely another version of it.
“Many of its provisions are worryingly similar to the 2012 Constitution, and its predecessors,” she says.
According to Article 93 of the new draft constitution, “The state is committed to the agreements, covenants, and international human rights conventions that Egypt has ratified. They have the force of law after publication in accordance with the specified circumstances.”
Yet a number of provisions in the draft constitution appear to directly contravene such international human rights and labor instruments that the Egyptian State has voluntarily ratified.
FORCED LABOR
Despite the fact that Egypt ratified the International Labor Organization’s (ILO) Conventions 29 and 105 Concerning Forced Labor, and the Abolition of Forced Labor) in the 1950s, Article 12 in the new draft constitution still stipulates that “[t]here can be no forced labor except in accordance with the law, and with the objective of performing a public service for a defined period of time and in return for a fair wage.”
For Omar, it is “shocking to find that in 2014 forced labor is still being stipulated for in the national constitution, and is meant to be upheld with a governing law.”
She maintains that forced labor should be outlawed in all its forms, under all pretexts, in accordance with the labor and human rights conventions to which Egypt is a state party.
Shokr also explains that there should be no law governing the conditions of forced labor.
“We had hoped that this provision would be scrapped from the constitution altogether, not merely amended. There must be no provision allowing for forced labor in the constitution or in any other laws,” he said.
CHILD LABOR
Following in the footsteps of the 2012 Constitution, the new draft stipulates in Article 80 that the state shall protect children and shield them from all abuse, mistreatment and exploitation.
“It is prohibited to employ children prior to reaching the age of completing their basic education, and is prohibited to employ them in jobs exposing them to hazards,” it reads.
Egypt’s basic education concludes at the age of 14 or 15, while the age of majority is set at 18 years.
Subsequent laws governing this constitutional article should comply with the ILO’s Conventions 182 on the Worst Forms of Child Labor (which Egypt ratified in 2002), and Convention 138 on the Minimum Age (ratified in 1999), which sets the minimum age for legal child labor at 15.
Nonetheless, millions of Egyptian children are reportedly employed in agriculture, industry and the service sectors well before they have completed their basic education, or prior to the age of 15.
MILITARY TRIBUNALS
The draft constitution of 2014 continues to enshrine military trials against civilians and non-military employees.
According to Article 204, civilians may be brought to stand trial before military tribunals for “crimes constituting a direct assault on military facilities, barracks, or whatever falls under their authority; military or border zones; its equipment, vehicles, weapons, ammunition, documents, military secrets, public funds or military factories; crimes related to conscription; or crimes that represent a direct assault against its officers or personnel because of the performance of their duties.
The law defines such crimes and determines the other competencies of the Military Judiciary.
Civilians are often denied their due-process rights under such exceptional courts, and are also denied the right to appeal military courts’ verdicts.
According to Omar, this article “empowers the armed forces to continue sending civilian workers who protest at army-owned enterprises to military trials, along with conscripted troops, journalists, media crews, and just about anybody else who questions them.”
Omar explains that this provision has been preserved in the constitution, while the interim authorities have issued laws strictly curtailing freedom of assembly and the right to protest.
“Together these laws will naturally be used to crack down on labor unrest and industrial actions in the future,” she warns.
Shokr echoed her sentiment, saying that this provision may be used against anyone who protests or holds strikes at any of the numerous military-owned enterprises, including at non-military production sites and factories.
Article 204 of the draft constitution apparently contravenes Article 14 of the United Nations’ International Covenant on Civil and Political Rights, which stipulates judicial procedural fairness and the rights of the accused, which the Egyptian State voluntarily ratified in 1982.
RESTRICTIONS ON UNIONIZATION WITHIN GOVERNMENT BODIES
While Article 76 of the draft constitution safeguards the right to democratically establish trade unions, it adds a novel and vague provision stipulating that such unions “may not be established within governmental bodies.”
This new provision, not included in any constitution before, directly violates ILO Conventions 87 and 98 concerning freedom of association, and the right to organize, which Egypt ratified in the 1950s.
“What do they mean by preventing unionization with government bodies?” Shokr asks. "This is unheard of. This is a clear violation of the ILO conventions that Egypt has ratified. These conventions only grant states the power to prohibit unionization within their police or armed forces, not in any other governmental body.
He deemed this “an unprecedented breach of labor rights.”
DENYING THE PLURALITY OF PROFESSIONAL SYNDICATES
According to a provision introduced in the 2012 Constitution, and enshrined in the new draft constitution as Article 77, “not more than one professional syndicate may be established for each profession. “
This article pertains not to Egypt’s labor unions, but to professional associations, including the general syndicates of teachers, doctors, engineers, lawyers and others.
Nonetheless, Article 77 remains in direct violation of ILO Conventions 87 and 98, which guarantee employees the right to establish any professional organization, union or syndicate for all legally recognized professions.
“This is an unwarranted intervention into the liberties of Egypt’s professionals, and a violation of their organizational rights in accordance to international law,” Shokr says.
According to Amr al-Shoura, board member of the Doctors’ Syndicate, this article limits the rights of doctors and other professionals, as well as their syndicate freedoms.
Shoura pointed out that a nearly identical article was introduced by the Muslim Brotherhood’s constituent assembly in 2012 to ensure the ruling regimes’ control over professional associations. The Muslim Brotherhood had dominated the boards of numerous professional syndicates for nearly three decades.
“Since 2011, many doctors had been discussing the establishment of an independent or parallel doctors’ syndicate to better represent them,” he says. Yet such ambitions for syndicate plurality have now been rendered unconstitutional.
The 50 PERCENT QUOTA
Perhaps the most controversial amendment made to the Constitution of 2012, in terms of labor rights, was the scrapping of the 50 percent quota for representatives of workers and farmers in both houses of parliament. This was a populist measure included in the Constitution of 1964 at the behest of Nasser’s regime.
A host of labor unions and farmers’ organizations have recently denounced the scrapping of the quota.
In November, Abdel Fattah Ibrahim, president of the state-controlled Egyptian Trade Union Federation (ETUF) and a member of the 50-person constituent assembly, withdrew from the constitution-drafting process in protest at the cancellation of the quota.
“Out of his anguish at the current condition of workers and farmers, the late President Abdel Nasser must be rolling over in his grave,” he said in an earlier interview.
Ironically, despite pulling out of the constituent assembly, Ibrahim has been mobilizing and campaigning for a “yes” vote among the ETUF’s nationwide membership of some four million workers.
Ibrahim has commented that the ETUF endorses the draft constitution as a part and parcel of the interim government’s political roadmap for the country.
Critics of the 50 percent quota claim that it did not genuinely represent either workers or farmers, but rather the ruling regimes’ loyalists.
Explains Omar, “I opposed the 50 percent quota as it failed to represent the working classes. However, I now fear that there will be no representation whatsoever for workers or farmers in the next parliament.”
He adds, “We should have held on to the 50 percent quota, for at least one or two parliamentary terms, so as to enable workers and farmers to establish viable political parties through which they could compete for seats in parliament.”
The new draft constitution has lifted a prohibition on labor-based or class-based parties, thus facilitating the establishment of such political entities for both workers and farmers.
Despite the scrapping of the workers’ and farmers’ quota in parliament, the new draft constitution still maintains this 50 percent quota for local town councils, as is stipulated in Article 180.
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