If Sisi pardons Marriott Cell journalists, could Protest Law detainees be next?
Al Jazeera journalists Peter Greste (L) Mohamed Fahmy (C) and Baher Mohamed (R) - AFP/Khaled Desouki

CAIRO: A Nov. 20 announcement by President Abdel Fatah al-Sisi in which he said he would consider a pardon for jailed Al Jazeera journalists Peter Greste, Mohamed Fahmy and Baher Mohamed in the infamous Marriott Cell Trial, has activists calling for the leader to consider pardons in other cases considered by many as politically motivated.

“If President Sisi thinks of using the presidential pardon for those sentenced in certain cases, it is better if his intentions would extend to those who are sentenced over peaceful demonstrations,” Hussein Abdel Razek, a member of the Tagammu Party, told Al-Ahram newspaper on Nov. 20.

Under the infamous 2013 Protest Law, protesting without police permission was criminalized, and many activists have been sent to jail under charges of violating the law, at times even for protesting the Protest Law.

It would be “more appropriate” to release imprisoned revolutionary activists to cause a breakthrough in the current crisis, political activist George Ishak told Youm7 on Nov. 20.

Imprisoned for almost a year, the Australian-Latvian Greste, Egyptian-Canadian Mohamed Fahmy and Egyptian Baher Mohamed were imprisoned on charges of spreading false news and supporting the Muslim Brotherhood in their 2013 coverage of the events following June 30. They were arrested in December 2013, and in June 2014, Greste and Fahmy were sentenced to seven years in prison, and Mohamed was sentenced to 10. They have denied all charges, and the sentences have been internationally condemned as lacking solid evidence, as the prosecution presented unrelated video footage during their trial.

If Sisi were to pardon the men, it would only clear their punishment, and not absolve them of being convicted of a crime in Egypt.

For this reason, Rightist Hafez Abu Saeda told The Cairo Post on Nov. 23 he did not actually favor a pardon for jailed activists. “Protesters will be pardoned for practicing their constitutional right of expression,” he said. A member of the National Council for Human Rights, Hafez instead suggested amending the Protest Law to put an end to people going to jail for demonstrating.

Presidential pardon

According to interviews with judges, the motive behind using a presidential pardon should be in the “nation’s higher interest.” Sisi referenced this “higher interest” when he announced he would study the Al Jazeera pardon Thursday.

“When the imprisonment of a person is seen to cause chaos, disturb national security or negatively affect bilateral relations between countries, the president has the right to decide to pardon them when an issued final verdict cannot be challenged,” Fekri Kharoub, the head of the Alexandria Criminal Court of Appeals, told The Cairo Post on Nov. 22.

Although Sisi’s “outspoken” consideration to pardon prisoners was only announced regarding the Al Jazeera case, Kharoub suggested “detained students” and “patriotic activists” do qualify under the pardon.

Kharoub said the pardon, in this case, would be considered to “save the youths’ future,” and “stabilize the situation.”

Besides the president’s decision being “discretionary,” the law defining his right in the Constitution does not specify certain charges for its application. However, Sisi’s statements were not clear as to whether he meant to pardon all three journalists or only two of them.

Mohamed has received ten years in prison—three more than Greste and Fahmy— for being found in possession of a spent bullet casing he says he picked up following a protest.

In reaction to Sisi’s announcement, Greste’s parents encouraged Sisi to free their son by Christmas. On Nov. 26, Australian tabloid The Courier Mail quoted Greste in a letter saying “continued pressure does help.”

Unlimited right

“There is neither a text specifying charges for the act nor defined limitations to the president’s right to pardon,” appeals lawyer Taher Abu el-Nasr told The Cairo Post Monday.

The various Egyptian Constitutions have granted the president the right to pardon without many limitations over the practice; it has been used under successive Egyptian authorities to free inmates, political prisoners, opposition leaders, and to exchange defendants with other countries in espionage cases.

Despite the 2014 Constitution’s article 155 allowing pardons “after consulting with the Cabinet,” this condition is believed to be only “nominal,” according to appeals lawyer Abu el-Nasr.

The president is also allowed to grant general amnesty for punishments and crimes. However, general amnesty needs a law to be issued, according to the Constitution. It was practiced during the transitional period when former President Mohamed Morsi assumed power due to the fact legislative power was still in Morsi’s hands before the Parliament was elected.

Controversy over practice

After assuming power, Morsi pardoned a number of Islamist prisoners in July 2012; among them where the controversial Islamic preacher Wagdi Ghoneim and Nabil Noeim, a former deputy of Egyptian-born Al-Qaeda leader Ayman al-Zawahri.

Morsi was condemned in some circles for the excessive use of the right to pardon prisoners. An investigative report by Mada Masr in February 2014 revealed that there were 27 Islamists pardoned under Morsi accused of terrorism-related crimes. Beforehand, the Supreme Council of the Armed Forces (SCAF) during the interregnum between the Morsi and Hosni Mubarak periods, was estimated by the report to have released over 800 Islamist prisoners.

Khairat el-Shater, an MB leader now on trial, was among those who were released by SCAF citing “health conditions” in March 2011.

Furthermore, Morsi also used his right to general amnesty for crimes that occurred after the January 25 Revolution, and up until June 30, 2012, where accordingly, hundreds of protesters tried before military courts were released. He formed a committee to search the files of the prisoners in the same period, which included representatives of the military judiciary, Interior Ministry, attorney general’s office and civil society.

Under Morsi’s Pardon Resolution Number 89, then-Attorney General Abdel Maguid Mahmoud decided to release 479 defendants, most of who were accused in the Mohamed Mahmoud street clashes in 2011, Youm7 reported on Nov. 7, 2012.

For the prisoners who did not qualify for pardon for charges of killing, kidnapping, larceny and drug trafficking, they were granted the right to challenge their verdicts.

“The committee was only meant for prisoners who received final verdicts during a certain time interval,” former Minister of Transitional Justice Amin el-Mahdy, the then-head of the committee, told The Cairo Post Sunday. He denied claims about recommendations submitted by the committee to free detainees “pending investigations.”

Following Morsi’s military ouster, former interim President Adly Mansour issued a presidential decree in 2014 to annul Morsi’s pardons to 52 prisoners.

The history of pardons in Egypt also includes political figures like politician Ayman Nour, who was accused of fraud during 2005 elections and was released in 2009, as well as Israeli Druze Azzam Azzam, who was accused of spying for Israel in 1997 and released in a prisoner exchange in 2004.

A pardon for the Al Jazeera journalists will be available under a presidential decision if their challenge to their prison sentences is rejected during a scheduled hearing in January 2015.

Shifting approach

“If I were there [in power] at that time, I would have seen that the best for Egypt, its national security and the whole reality is [the journalists] deportation to their countries, and the case would have been closed that way,” Sisi said in a Thursday interview with France 24.

At the time of the journalists sentencing, Sisi made remarks over judiciary verdicts saying he will never “interfere” in them.

Earlier in November, Sisi issued a law allowing him to extradite non-Egyptian prisoners to be tried in their home countries. In theory, Greste would be the only one of the Al Jazeera journalists to qualify under the law, because he has no Egyptian citizenship.

Despite legal experts denying dual citizens could qualify under the law, Kharoub suggested that if holding Egyptian-Canadian Fahmy would negatively impact relations with Canada, the State might consider his deportation under a request from Ottawa. However, Fahmy said in a tweet he would never “relinquish” his Egyptian nationality, and called the law a “positive step even it does not include me.”

International pressure to release the journalists is widely believed to have urged the issuance of the deportation law, which is meant “to maintain the international image of Egypt,” according to press statements by presidential spokesperson Alaa Youssef.

Speculation the journalists may be freed coincides with Gulf attempts to calm tensions between Egypt and Qatar, Al Jazeera’s government owner. It is conceivable mended ties with Qatar may also be a reason for the release of Mohamed, Fahmy and Greste, after earlier this month Qatar agreed to prohibit MB meetings in its territory.

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