SINGAPORE - The Court of Appeal on Thursday (Aug 25) dismissed a bid by The Online Citizen (TOC) chief editor Terry Xu to stop the Attorney-General from continuing with contempt proceedings against him.
The Attorney-General had started contempt of court proceedings against Xu last year after the now-defunct sociopolitical website reposted an open letter by Australian writer Julie O'Connor questioning Singapore's justice system.
Xu then sought to challenge the Attorney-General's decision, arguing that prosecuting only him and not even investigating Ms O'Connor was a violation of his constitutional right to equal treatment under the law.
But the three-judge apex court, in a written judgment issued on Thursday, said Xu has failed the legal test to show that the Attorney-General's actions had resulted in him being treated differently from another equally situated person.
On Jan 27 last year, Xu published an article, comprising the letter Ms O'Connor had posted on her personal blog, on the TOC website. He also shared the article on TOC's Facebook page.
After Xu refused to delete the article and Facebook post, the Attorney-General's Chambers filed an application on Aug 11 seeking to punish him for contempt.
On Sept 8, Xu, who was represented by Mr Lim Tean, filed an application seeking judicial review. This was dismissed on Nov 25 by a High Court judge. Xu filed an appeal on Dec 8.
At the heart of the case is how Article 12(1) of the Constitution, which states that "all persons are equal before the law", is applied in the context of the exercise of prosecutorial discretion by the Attorney-General.
The apex court noted that the concept of equality under Article 12(1) means that all persons in like situations will be treated alike.
The judgment, delivered by Justice Steven Chong, said it was clear that Xu's treatment cannot be meaningfully compared with that of Ms O'Connor's as there were differentiating factors between them.
The fact that Ms O'Connor lives overseas, making it difficult for the Singapore authorities to investigate and prosecute her, was a key factor that differentiated her from Xu, who is within Singapore's jurisdiction.
Another differentiating factor was that the publication of the article on the TOC website and Facebook page was likely to cause a greater degree of harm than Ms O'Connor's publication of the letter on her blog.
The court said Xu's publication likely gave Ms O'Connor's allegations much wider circulation than they would otherwise have enjoyed, given TOC's substantial audience and reach as an established alternative news platform in Singapore.
Xu also conferred a greater appearance of journalistic and editorial legitimacy on Ms O'Connor's allegations than they would otherwise have enjoyed, said the court.
The court emphasised that the Attorney-General's overriding duty is to act in the public interest.
In assessing what would be in the public interest, the Attorney-General was entitled to take into account the degree of difficulty in investigating and prosecuting Ms O'Connor, as well as whether taking action against Xu would be sufficient.
The Attorney-General also was entitled to undertake an assessment of the degree of harm and to conclude that it was in the public interest to prosecute Xu, but not Ms O'Connor, said the court.