The Evolution of Freedom of Association in Egypt: Insights from the Supreme Constitutional Court

Eman Muhammad Rashwan

Cairo University

Introduction

Despite its centrality as a fundamental constitutional principle and human right, the right to freedom of association (RFA) in Egypt is under-studied and often reduced to the situation of unions and syndicates in Egyptian law. The RFA in Egypt has been a contentious issue, particularly since the political upheaval that began in 2011. The Egyptian Supreme Constitutional Court (SCC) has played a crucial role in interpreting and defining the boundaries of this right, which is enshrined in the country's Constitution. In this blog post, I explain the constitutional text that regulates the RFA in the Egyptian legal system, and then explore how the SCC brought life into that text by gradually building up its approach to the right that is both social and liberal. I finally conclude by referring to the space between the constitutional framework and the applying legislative body of the RFA in the contemporary Egyptian legal system.

The Constitutional Framework of the RFA in Egypt

The RFA in Egypt is explicitly outlined in the 2014 Constitution, which was adopted following the ousting of the Muslim Brotherhood government in 2013. The Constitution guarantees this right through three key articles:

1. Article 75: This article allows citizens to form civil associations and institutions on a democratic basis, with legal personality upon notification. It also restricts administrative agencies from interfering in these organizations' affairs, except by judicial ruling. Notably, it prohibits associations that operate secretly or have military characteristics.

2. Article 76: This article ensures the right to establish syndicates and unions, emphasizing their independence and the necessity of judicial rulings to dissolve their boards of directors.

3. Article 77: This article provides for the establishment and administration of professional syndicates, guaranteeing their independence and mandating their consultation on relevant legislation.

These constitutional provisions reflect a more protective and elaborative stance towards the RFA compared to previous Egyptian Constitutions. However, this idealistic framework has often been at odds with the realities on the ground.

The Role of the SCC in Defining the RFA

The SCC, which is the independent judicial body competent with constitutional review in Egypt, has been instrumental in shaping the understanding and scope of the RFA in the country. Over the years, the Court has delivered several landmark decisions that collectively build a comprehensive framework for the protection of the RFA.

Early Interpretations: Establishing the Foundations

The SCC's involvement with RFA began in the 1980s, during a period when Egypt was experiencing significant political and social changes. One of the Court's earliest decisions regarding RFA came in 1983, when it dealt with the right to form syndicates. In this ruling, the SCC upheld the constitutional right to establish syndicates, emphasizing that these organizations must operate on a democratic basis. The Court recognized that RFA was not just a right in isolation but was connected to the broader spectrum of civil liberties that are essential for democratic governance.

In the mid-1990s, the SCC began to more explicitly define the RFA as a fundamental right. In a 1995 decision, the Court linked the right to association with freedom of speech and assembly, arguing that these rights were interdependent. The SCC highlighted the concept of a "marketplace of ideas," where an "ordered assemblage" of individuals could engage in "collective thinking." This decision was significant as it underscored the idea that the RFA is essential for personal freedom and the effective functioning of a democratic society.

The SCC’s Expanding Jurisprudence: Linking the RFA to Other Fundamental Rights

As the SCC continued to develop its jurisprudence on the RFA, it increasingly linked this right to other fundamental freedoms, such as the freedoms of expression, assembly, and political participation. By the late 1990s, the Court had begun to view the RFA as not only a social right but also a personal freedom that was integral to the dignity and autonomy of individuals.

In a landmark 1997 ruling, the SCC articulated the "close nexus" between the RFA and other civil liberties. The Court argued that the right to association was crucial for fostering public participation in governance and ensuring the vibrancy of civil society. This decision reflected the SCC's broader commitment to protecting democratic rights and reinforcing the idea that the RFA is foundational to the functioning of a democratic state.

By 2000, the SCC's decisions had firmly established RFA as a constitutional pillar in Egypt. In a significant ruling that year, the Court cited comparative constitutional provisions and international treaties to support its interpretation of RFA. The SCC emphasized that RFA was a fundamental human right that predated the Constitution and was essential for the exercise of other rights. The Court also underscored the importance of civil society organizations, including political parties and syndicates, in promoting democratic governance and facilitating public engagement.

The SCC’s Role Post-2011 Revolution: Upholding RFA Amid Political Turbulence

The 2011 revolution in Egypt marked a turning point in the country’s political landscape, leading to significant changes in the legal and constitutional framework. In the aftermath of the revolution, the SCC faced the challenge of interpreting the RFA in a context marked by heightened political tensions and state security concerns.

Despite these challenges, the SCC remained committed to protecting the RFA. The Court applied the proportionality test to evaluate the constitutionality of restrictions on the RFA, ensuring that any limitations imposed by the state were necessary, proportionate, and aimed at achieving a legitimate objective. This approach was particularly important in the context of laws that sought to regulate civil society organizations, which were often viewed with suspicion by the state in the aftermath of the revolution.

One of the SCC's most notable post-revolution rulings came in 2012 when the Court struck down a key article of Law No. 84 of the Year 2002. This law had granted the government the power to dismiss the administrative councils of civil associations, effectively allowing the state to exert control over these organizations. The SCC's decision to invalidate this provision was a significant victory for civil society in Egypt, reinforcing the principle that the RFA should be protected from arbitrary state interference.

In general, the constitutional framework for practicing RFA in Egypt responds positively to the international standards. However, the legislative and judicial execution and monitoring of the right is not subject to the same consensus.

The Disconnect Between Constitutional Guarantees and Legislative Reality

Despite the SCC's strong defense of RFA, the reality in Egypt has been marked by significant legislative and political obstacles. According to the Varieties of Democracy Project (V.DEM) report of 2024, Egypt scored 0.17 in 2023 on the freedom of association index, which is an extremely low score. The index shows a dramatic increase in the protection of the RFA in Egypt through 2011 and 2012, in the direct aftermath of the Egyptian revolution, and then a gradual decline from 2012 to 2014. The index levels remained stable from 2014 to 2023, and are below the levels preceding the revolution in 2011.

A combination of legislative acts and lower judicial rulings that constitute the practical legal framework for exercising the RFA in Egypt explains the broad gap between the constitutional regulation approach, which is both liberal and socially constructive, and the executive policy approach, which is accused by civil society organizations to be excessively restrictive and dominated by governmental control.

Eman Muhammad Rashwan is a Lecturer of Public Law at Cairo University, Faculty of Law and a Visiting Scholar at Hamburg University, Institute of Law and Economics.

Suggested citation: Eman Muhammad Rashwan, ‘The Evolution of Freedom of Association in Egypt: Insights from the Supreme Constitutional Court’ IACL-AIDC Blog (10 September 2024) The Evolution of Freedom of Association in Egypt: Insights from the Supreme Constitutional Court — IACL-IADC Blog (blog-iacl-aidc.org)