Capital punishment in Tonga
Capital punishment is legal in Tonga, but has not been imposed since 1982.[1] The country's lack of executions puts it into the category of a state abolitionist in practice, where it retains the death penalty in law but has had a formal or informal moratorium for at least ten years. Tonga's low rate of murder convictions forms part of the reason for the lack of executions, as well as its courts’ apparent unwillingness to impose the penalty unless it appears absolutely necessary to do so.
Legislation and case law
In Tonga, the governing legislation regarding the death penalty is the Criminal Offences Act.[2] This Act includes death in its list of punishments for criminal behaviour.[3] Capital punishment may be imposed for the crimes of murder[4] and treason.[5] It may not be imposed on a pregnant woman.[6] The ban on imposing the death penalty on a pregnant woman was added to the Criminal Offences Act via an amendment in 1939.[7] If a woman convicted of murder or treason alleges that she is pregnant, the question is put to a jury as to whether they are satisfied she is indeed pregnant.[8] The jury who decides this will, as a general rule, be the same jury who convicted her.[9] A person under 15 years old cannot receive the death penalty for murder.[10] However, due to the wording of the Act, it is unclear whether a person under this age may receive death as punishment for treason.[11]
In order for the death penalty to be imposed, the
History
A mass execution was carried out in 1887 on the orders of King
The most recent executions in Tonga took place in 1982, when Haloti Sole, Livingi Sole and Fili Esau were hanged for murder.[22] In the same year, the Tongan Parliament discussed abolishing the death penalty, but decided to retain it.[23]
In 2004, the Tongan Legislative Assembly voted on a bill which proposed to introduce the death penalty for possession of illicit drugs. This bill was defeated by the Assembly by a vote of 10–7,[24] indicating that the death penalty, if Tonga continues to retain it, will not spread to become an applicable sentence for other crimes. It is an indication that Tonga wishes to reserve the death penalty for the very serious crimes of murder and treason.
The issue of capital punishment was raised in 2005, when Tevita Siale Vola became the first person in Tonga to be convicted of murder in 24 years.[25] However, Webster CJ did not impose the death penalty, on the basis that Vola's actions did not meet the threshold of "one of the rarest of rare cases where the alternative option of life imprisonment is unquestionably foreclosed."[26] Webster CJ did not make any moral judgment on the death penalty, explaining that it was "a matter for the Government and Parliament" to decide whether the death penalty should be retained in Tonga.[27] The judgment in R v Vola serves as an indicator that Tonga does not impose the death penalty lightly.
International actions and other states' responses
General
The United Nations presented a
In the aftermath of the
Universal Periodic Review
2008 Cycle
In the course of its first
2012 Cycle
The 2012 cycle brought similar recommendations, this time from a number of States. These included recommendations from Australia, Spain, and the United Kingdom to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights, which is aimed at the abolition of the death penalty. Tonga is neither a signatory to, nor has it ratified, the ICCPR. As such, Australia and the United Kingdom's recommendations included a suggestion to ratify this Covenant as well. In its response, Tonga said that it had not considered ratifying the ICCPR. However, it referred to R v Vola as authority that the Tongan Courts are applying principles of the ICCPR despite its non-ratification status.[32]
During the 2012 UPR cycle, Italy and
Tonga's response during this cycle brought to light its determination to retain the death penalty. Despite being an abolitionist in practice, Tonga is essentially a retentionist state as it refuses to abolish capital punishment.[35]
Compared to other countries
Tonga joins 140 other countries which are abolitionist in law or practice.[36] It is the only country in Oceania to retain capital punishment.
References
- ^ Ballesteros, Raissa Katrina Marie G. (1999). "From Abolition to a Solution: a Real Alternative to Capital Punishment". Phil. L.J. 73: 528.
- ^ Criminal Offences Act (Tonga)
- ^ s 24(1)(e) Criminal Offences Act
- ^ s 91(1) Criminal Offences Act
- ^ s 44 Criminal Offences
- ^ s 40 Criminal Offences Act
- ^ Criminal Offences Act s 40
- ^ Criminal Offences Act s 41(1)
- ^ Criminal Offences Act s 41(2)
- ^ s 91 Criminal Offences Act
- ^ s 44 Criminal Offences Act
- ^ s 33(2) Criminal Offences Act
- ^ s 33(1) Criminal Offences Act
- ^ s 36 Criminal Offences Act
- ^ s 36 Criminal Offences Act
- ^ s 37 Criminal Offences Act
- ^ s 37(1) Criminal Offences Act
- ^ s 37(1) Criminal Offences Act
- ^ s 38 Criminal Offences Act
- ^ s 39 Criminal Offences Act
- ISBN 0195503503.
- ^ "Capital Punishment in the British Commonwealth". capitalpunishmentuk. Retrieved 10 September 2017.
- ^ "The last execution was carried out in 1982". Hands Off Cain. Retrieved 10 September 2017.
- ^ "Tonga". Hands Off Cain. Retrieved 10 September 2017.
- ^ "R v Vola [2005] TOLawRep 34". Pacific Islands Legal Information Institute. Retrieved 6 September 2017.
- ^ "R v Vola [2005] TOLawRep 34". Pacific Islands Legal Information Institute. Retrieved 6 September 2017.
- ^ "R v Vola [2005] TOLawRep34". Pacific Islands Legal Information Institute. Retrieved 7 September 2017.
- ^ "The last execution was carried out in 1982". Hands Off Cain. Retrieved 10 September 2017.
- ^ "NZ embroiled in diplomatic row". ONE News. 10 December 2007. Retrieved 10 September 2017.
- ^ "UPR Report of the Working Group p 7". OHCHR. Archived from the original on 11 September 2017. Retrieved 7 September 2017.
- ^ "UPR Report of the Working Group p 18". OHCHR. Archived from the original on 11 September 2017. Retrieved 7 September 2017.
- ^ "UPR National Report p 20". OHCHR. Archived from the original on 11 September 2017. Retrieved 7 September 2017.
- ^ "UPR Report of the Working Group p 17". OHCHR. Archived from the original on 11 September 2017. Retrieved 10 September 2017.
- ^ Article 37 Convention on the Rights of the Child
- ^ Baird, Natalie (2015). "The Role of International Non-Governmental Organisations in the Universal Periodic Review of the Pacific Island States: Can "Doing Good" be Done Better?". Melbourne Journal of International Law. 16 (2): 576.
- ^ "The Death penalty in 2016: Facts and figures". Amnesty International. 11 April 2017. Retrieved 10 September 2017.