Al Jazeera journalist Mohammed Fahmy stands behind bars at a court in Cairo on May 15, 2014.Reuters
It is not going to be easy to set Mohamed Fahmy free. The Egyptian-Canadian correspondent for the Al Jazeera English news network is serving a prison sentence for allegedly spreading lies on behalf of the now-outlawed Muslim Brotherhood, harming Egypt's national interests.
A visit this week to Cairo by Canada's Foreign Minister John Baird, intended to encourage Mr. Fahmy's release by Egyptian President Abdel Fattah el-Sissi, may have done more harm than good.
"Sissi would love to set this guy free," said Hisham Kassem, former publisher of the independent Al Masry al Youm newspaper. "He and the other [imprisoned] Jazeera people are a major embarrassment to him."
"But he can't just pardon him," he said. "It would really upset the security services that arrested them … and mess with the judiciary that has been dealing with the case all along."
Mr. Fahmy has been convicted and sentenced at trial, had the verdict overturned on appeal and a new trial has been announced for this spring. Two other Al Jazeera journalists – an Australian and an Egyptian – are serving related prison sentences.
"Domestically, a pardon would create a real hornets' nest," Mr. Kassem said.
The Egyptian President is viewed as a despot by many outsiders for the large-scale arrests of anyone connected to the Muslim Brotherhood, the Islamist movement that controlled parliament and the presidency following elections in 2012.
For those international critics, Mr. el-Sissi wants to avoid anything that appears dictatorial – even if benevolent – when it comes to the Al Jazeera Three, though he doesn't want to undo the anti-Brotherhood sentiment shared with the judiciary and security forces. This is especially true as the country approaches parliamentary elections in March and April.
Yet he'd still like to unload the Al Jazeera prisoners.
It is for this reason, Mr. Kassem said, that Mr. el-Sissi issued a decree in November permitting him to repatriate foreign prisoners to their homeland. A catch, however, is that they must really be foreign. This status covers only the case of the Australian journalist, Peter Greste. As far as Egyptian authorities are concerned, Mr. Fahmy, a dual national who was born in Egypt, is an Egyptian.
As such, Mr. Fahmy could not be repatriated or deported, as some suggest. He might, however, be given a pardon as an Egyptian and qualify for repatriation as a Canadian.
There is another catch, however. Anyone repatriated to a foreign country is expected "to be tried or have their [Egyptian] punishments implemented" in their home country, the official Egyptian news agency MENA said in November.
This would be highly unlikely in Mr. Fahmy's case – Canada would not have jurisdiction to try him for alleged crimes in Egypt, nor would Mr. Fahmy's behaviour be considered criminal.
Nevertheless, it is likely that the idea of Canada taking charge of the matter in some way has been on the table for discussion. The hope would be that the two sides could come up with some arrangement that would allow Mr. el-Sissi to release Mr. Fahmy and still save face at home.
The door to that possibility, however, appeared to be slammed shut Thursday. "In Canada, we would have no basis to put Mr. Fahmy on trial," said Mr. Baird unequivocally. "That would not be an option which would be acceptable to the government of Canada."
Case closed, it would seem, although there may be one other narrow passage through which the matter might pass.
Egypt's new constitution gives the soon-to-be-elected parliament considerable new powers. One of them is the authority to approve presidential pardons, including any amnesties meted out by the President in advance of parliament's election.
While this means that a pardon given by Mr. el-Sissi would be subject to parliamentary approval, and therefore delayed and possibly denied, it could also help Mr. Fahmy in the long run, according to people familiar with his case.
Were parliament to indicate that the people of Egypt would not object to a pardon, the President could use that as justification for stepping in and releasing Mr. Fahmy.
The new parliament, to be dominated by individual members rather than parties, will be especially compliant with Mr. el-Sissi.
Even that, however, would take several months, during which Mr. Fahmy is likely to face his new trial. An acquittal there would be the best outcome to hope for.