Al Jazeera Journalist Mohamed Fahmy Should Be Released Not Retried in Egypt

01/04/2015 07:28 pm ET | Updated Mar 06, 2015
ASSOCIATED PRESS

4 January 2015

On 1 January 2015, the Egyptian Court of Cassation issued a ruling upholding the appeal filed by Mohamed Fahmy to overturn his conviction and 7-year sentence. In so doing, Egypt's highest court has recognized that there were legal errors in the original trial. But instead of releasing Fahmy, the Court ordered a retrial and declined to grant him bail. The Court's reasoning and the position of the prosecution on the re-trial are due to be published in the coming weeks.

Mr. Fahmy is a journalist who was convicted of reporting false news and supporting the Muslim Brotherhood. These allegations are not true and were not backed by any evidence at trial. Mr. Fahmy has never supported the Brotherhood. There was no evidence presented at trial that showed that he ever fabricated a report or knowingly made a false statement. He is serving a draconian sentence for simply reporting the news.

A re-trial process is lengthy and its outcome is uncertain. It is also not clear how a new process would fix any of the deficiencies in the original trial. The charges themselves are a violation of the right to free expression under Egyptian and international law. There are no guarantees that a new panel of judges would respect due process or demand cogent evidence before concluding that a crime was committed. Fahmy cannot therefore count on the retrial process to offer a just or swift solution.

As Mr. Fahmy's counsel, we are therefore pursuing discussions with the Egyptian and Canadian authorities in a spirit of cooperation in order to identify a swift and fair resolution to the case. We have submitted a written request for a pardon and for his release to the Egyptian President, Minister of Justice, Minister of Foreign Affairs and Prosecutor-General, and we await their response.

President Sisi has the power under Article 155 of the Egyptian Constitution to grant Mr. Fahmy and his journalist colleagues a pardon at any time. He has already distanced himself from the case, pointing out that the decision to arrest Mr. Fahmy was taken before he was president. He has stated that Mr. Fahmy and his journalist colleagues should not have been put on trial. He has expressed regret about the negative consequences of the case for Egypt. And he has said that he is considering granting a pardon or finding another solution to this matter. Although President Sisi has suggested that he may not grant a pardon while judicial proceedings are ongoing, now that the appeal has been determined -- and the judiciary has recognized that legal violations have occurred -- we very much hope that the president will decide to step in.

A transfer to Canada is also possible, and has received official support from the Canadian government. We have been in touch -- along with Canadian counsel Lorne Waldman -- with officials in Ottawa and we are currently actively pursuing opportunities to discuss the terms of a transfer in Mr. Fahmy's case with the Canadian Foreign Ministry. We have been informed that Foreign Minister Baird is considering our request to meet with him and we very much hope that such a meeting will be possible before the foreign minister's planned visit to Cairo in mid-January. We would also welcome an official response from the Egyptian authorities to the request for a pardon, and further engagement on the terms of a transfer.

In the meantime, to the extent that consideration of a pardon or negotiations on a transfer to Canada will lead to further delay, it is imperative that Mr. Fahmy be temporarily released on health grounds in accordance with the Egyptian Code of Criminal Procedure. A request to the Prosecutor-General for humanitarian release was made by the Egyptian Syndicate of Journalists in October and it has subsequently been supported by counsel and by Canadian consular officials. Medical reports attached to the original request confirm that Mr. Fahmy suffers from Hepatitis C as well as other health conditions that cannot be treated appropriately in detention. His detention has become a serious risk to his health and he must be released for treatment immediately while requests for his release are being processed.

Mr. Fahmy has been imprisoned for over a year in a case that shocks the conscience of many observers in Egypt and abroad. We look forward to working constructively with the Egyptian and Canadian authorities in the coming days to reach an agreement for his release as soon as possible.

Finally, there is another matter that requires comment. An article was published in the Guardian newspaper on 2 January 2015 stating that officials threatened Amal Clooney with arrest in Egypt in connection with her representation of Fahmy. The incident that was recounted in fact arose in early 2014 when the International Bar Association's Human Rights Institute (IBA) -- which was organizing the launch of a report co-authored by Mrs. Clooney -- was warned by experts in Egyptian affairs who were consulted on the launch that she and her colleague risked arrest if they launched the report in Cairo, in light of the criticisms made in the report and recent
prosecutions for "crimes" like insulting the judiciary, government or military in Egypt. As a result of these warnings, the IBA decided that it was not safe to hold the launch in Cairo, and the authors were forced to hold it in London instead. This incident arose before Mrs Clooney's involvement in the Fahmy case, before the current president was in office and in a context entirely unrelated to this case. The journalist has since apologized for the misleading presentation of this matter in the article and corrections were made to the text to attempt to address this. More importantly, the focus today should not be on the risks that lawyers or journalists faced in the past. The focus should be on the risks of free speech in today's Egypt. We consider it a promising sign that President Sisi has stated that he would consider pardoning Mr. Fahmy. It would be a promising sign if the authorities agreed to transfer him to Canada. Freeing Fahmy would finally send a message that journalists in Egypt will not be imprisoned for simply doing their job, and it would honor the aspirations of those who have marched for a new and more progressive Egyptian society.

Amal Clooney
Mark Wassouf
Counsel for Mohamed Fahmy