The sounds of silence: The Supreme Constitutional Court of Egypt, constitutional crisis, and constitutional silence

The Egyptian Supreme Constitutional Court (SCC) issued a series of decisive decisions during the transition period following Hosni Mubarak’s resignation and the military coup of July 3, 2013. During the transition the SCC treated various “constitutional declarations” of the military as binding commands of a “constitutional lawgiver” which pre-empted the commands of all inferior lawgivers, including the military, when acting as a legislator. This hierarchical conception of law as a series of commands issuing from a hierarchy of superior and inferior lawgivers means that legality is determined solely by reference to a particular law’s place in this hierarchy, without regard to the content of the command. In this conception of law, there is no place for constitutional silence inasmuch as the legislature and courts are seen simply as carrying out instructions of the constitutional lawgiver. The denial of constitutional silence in turns leads to judicial rhetoric that overdetermines the outcome of particular cases, and fails to tie outcomes of cases to any shared conception of legality between the sovereign and the citizens. This approach to deciding cases negates the possibility that “silence” may be filled by other lawgivers through a deliberative political process. By refusing to accept a place for constitutional silence, the SCC’s jurisprudence enshrines a kind of “constitutional despotism” which exacerbates constitutional conflict, rather than mitigating it, by creating incentives for constitutional drafters to write ever more specific constitutional rules to enshrine particular outcomes rather than creating a framework for shared governance.