In the aftermath of the re-convictions in Egypt of three Al-Jazeera English journalists—Mohamed Fahmy, Baher Mohamed, and Peter Greste—there are three viable legal paths forward: appeal, deportation, and presidential pardon. Not all paths are open to all three men, and each path has its advantages and disadvantages.
(For background on the case, including the reversal on appeal of the original trial court judgment, see this earlier post.)
For Mohamed Fahmy, all three paths are open, but he is at a legal crossroads and must choose which to follow.
For Baher Mohamed, only the appeal and pardon paths are options.
For Peter Greste, having already taken the deportation path, unless he chooses to start over again by returning to Egypt to face a retrial (which is presumably out of the question), his only remaining option is to seek a pardon.
In theory, a fourth path of blanket amnesty for all similarly situated defendants could open in the future, but under Article 155 of the Egyptian constitution such amnesty can only be granted by the legislature, which at present does not exist. While the constitution does grant the President the power to enact legislation by decree in the absence of a legislature, all such legislative acts by the President must be later ratified by an elected legislature. Amnesty by presidential decree, therefore, would lack the certainty and finality of a presidential pardon, and so at present is not a viable option.
Mohamed Fahmy and Baher Mohamed both have the same right to appeal their convictions as they did after their original trials. (Recall that the Court of Cassation's reversal of the original trial court's judgment rested on at least some grounds that may be equally applicable to the second conviction.) But, because the options of deportation (for Fahmy) and pardon (for both) are available only after a final judgment, to file an appeal would in effect be a decision to forego those other options and remain in jail until after the appeal is final.
Also, success on appeal would not necessarily end the case, since the Court of Cassation could reverse the convictions on procedural grounds and order a second retrial (third trial). Any such third trial would be before a special panel of Court of Cassation judges, as in the third trial of former President Hosni Mubarak. While any verdict entered by the Court of Cassation acting in a trial capacity would be final, it would probably be well over a year before the appeal and second retrial were concluded.
After the Court of Cassation's reversal of the first trial court judgment but before the recently concluded retrial began, at a point at which it could be legitimately said that a final judgment order had been entered, Peter Greste (an Australian citizen) was ordered deported by President Al-Sisi under a new presidentially-decreed law giving the President the power to repatriate a foreign citizen to his or her home country when deemed necessary to serve a compelling state interest.
The wording of the foreign defendant deportation law is vague on some points, including whether the President can exercise his deportation power before judicial proceedings are completed. To date, President Al-Sisi has taken the position that he will exercise his power to deport foreign defendants only after a final judicial judgment order is entered, meaning (in a felony case) either a trial court conviction that is not or has not yet been appealed to the Court of Cassation, or if the case is appealed, then a Court of Cassation judgment order.
The language of the statute suggests that such deportation of a foreign defendant to his or her country of nationality is for the purpose of trial for the conduct charged in the Egyptian case or service of the sentence pronounced by the Egyptian court, but there is no requirement that the receiving country either agree or even have the legal capacity to do so. In essence, therefore, the deportation law amounts to a legal escape valve in cases in which the national interest in deporting a defendant is deemed by the President to outweigh the national interest in seeking criminal justice through the Egyptian court or penal systems.
Because the new deportation law relates only to foreign defendants, it is inapplicable to Baher Mohamed, who is an Egyptian citizen. (Also, Article 62 of the 2014 constitution prohibits the deportation of citizens.)
The deportation law does, however, have potential application to Mohamed Fahmy, who was born in Egypt and later also became a naturalized citizen of Canada. Because Fahmy held Egyptian citizenship at the time the Court of Cassation reversed his first conviction, he was ineligible for deportation. But, he has since relinquished his Egyptian citizenship, which, if recognized, should make him eligible for deportation to Canada on the same basis Greste was deported to Australia.
However, as the deportation law is currently applied, deportation will only be an option for Fahmy after a final judgment in the criminal proceedings is entered. Unless and until an appeal is filed with the Court of Cassation, the trial court's judgment is final, but absent some extraordinary push, the time required to complete the steps necessary to issue a deportation order may exceed the time limit for filing an appeal (60 days from the day after the judgment is announced orally in court), at which point the trial court's ruling ceases to be a final judgment in the case and deportation ceases to be a current option.
That means Fahmy must either take the risk of foregoing a potentially successful appeal to the Court of Cassation or appeal and wait until the Court of Cassation renders its judgment several months and potentially even a year or more from now.
As is evident from the fact that Greste was included as a defendant in the retrial even after being deported (and thus convicted and sentenced in absentia), deportation does not necessarily end the criminal proceedings or potential criminal liability of the deported defendant in Egypt.
Article 155 of the 2014 constitution provides, "The President of the Republic may issue a pardon or mitigate a sentence after consulting with the Cabinet."
While nothing in that sentence expressly limits the President's pardon power to cases in which a final judgment of conviction has been rendered, the currently prevailing view in Egyptian legal circles is that a pardon presupposes a conviction of which to be pardoned. (Note: In the U.S., the issue of whether then-President Gerald Ford had the authority to pardon former-President Richard Nixon before Nixon was formally charged with a crime was a big question. While the issue was eventually resolved in favor of a power to pardon before charges were filed, in other countries it remains a legitimate issue on which reasonable minds can differ.) President Al-Sisi appears to have adopted the prevailing view that a pardon requires a conviction.
If President Al-Sisi is favorably disposed to put an end to the huge problems the Al-Jazeera English journalists case is creating for Egypt in the international arena—problems with serious practical impact on matters of national importance—then he must either act now, before the time limit expires for filing an appeal to the Court of Cassation, or (under the prevailing legal view) he must wait many months and potentially even years before the entire legal process of a second appeal and potential third trial are completed.
Or, he could order the deportation of Mohamed Fahmy to Canada and take the position that because Baher Mohamed is an Egyptian citizen, and only a citizen of Egypt, what happens with him under Egyptian law in Egyptian courts is purely an Egyptian concern. But, as appealing as that position may be from an Egyptian point of view, in the international arena the case and the cause of the journalists involved, including Baher Mohamed, has far exceeded the point at which such an argument will likely solve the problems the case is creating for Egypt in its international standing and relationships.
In contrast, a presidential pardon now for all defendants following a conviction would enable President Al-Sisi to defuse the nation's international problems and increase his stature as a statesman, while at the same time avoiding any criticism on his part of the trial court's judgment.
All eyes are now on President Al-Sisi to see what he decides.