How not to protest in Singapore: two models of the protection of the freedom of assembly

Recently, political activist Jolovan Wham was convicted for organising a public assembly in which a foreign speaker participated electronically. As with other protestors in the past, Wham’s arguments based on the freedom of assembly failed. Is this yet another instance of courts – in Singapore, as in several other jurisdictions – deferring strongly to the legislature’s decision to restrict the freedom of assembly?

In fact, the law on freedom of assembly is more nuanced than it may first appear. It appears that critics often fail to distinguish between two models of rights-protecting regime. One asks whether the outcome brought about by the state complies with a constitutional right. The other, which Singapore follows, inquires into the lawfulness of particular executive/legislative actions. I will distinguish between the two models, and argue that a failure to apprehend the difference – and to identify the proper target of challenge – has plagued the case law and discourse about it.