Death penalty in Tonga

Introduction

In 2006, after nine young Australians (the Bali Nine) were convicted of drug smuggling in Indonesia and some sentenced to death, concerns were raised that the Australian government had authorised the Australian Federal Police (AFP) to cooperate with overseas police forces in cases involving the death penalty. The Australian government revealed that the AFP had continued co-operation with overseas police after capital charges were laid on three occasions, including one case in the Kingdom of Tonga, which retains the death penalty.

Under the Criminal Offences Act of the Kingdom of Tonga, the crimes of treason and murder can be punished by the death penalty (although in practice, Tonga has not utilised the death penalty for many years, with the last execution in 1982). Articles 33 – 41 of Criminal Offences [Cap 18] outline the provisions of the death penalty by hanging (including the policy that pregnant woman convicted of a capital crime should not be executed).

Government sources

Tonga

Chapter 18 – Criminal offences Act, Tonga Consolidated Legislation, articles 33-41

Death sentence

33. (1) When any person is condemned to death the sentence shall be that such person shall be taken to the place of execution and there hanged by the neck until he is dead

King’s assent

(2) No sentence of death shall be carried into execution until the King with the consent of the Privy Council has signified assent thereto

Power to commute

(3) It shall be lawful for the King with the consent of the Privy Council to commute a sentence of death to imprisonment for life….

Australia

AFP Practical Guide on International Police to Police Assistance in Death Penalty Charge Situations, 2004

The guidelines state that the AFP can provide police to police assistance “irrespective of whether the investigation may later result in charges being laid which may attract the death penalty“.

Revised guidelines 2006 – AFP Practical Guide on International Police to Police Assistance in Death Penalty Charge Situations, 2006

“Prior to a person being charged with an offence that attracts the death penalty:

Police-to-police assistance can be provided, without reference to the Minister, until charges are laid for the offence.
Information provided by the AFP to foreign law enforcement agencies must be in accordance with the Australian Federal Police Act, 1979 and any other legislation, treaty, convention, Ministerial Direction, agreement, memorandum of understanding, policy, guideline, and practical guide or associated document relevant to the provision of information to foreign law enforcement agencies.

“After charges have been laid for a crime attracting the death penalty:

Note that the timing of the charging process differs from country to country.
The Minister for Justice and Customs may decide that police-to-police assistance can continue to be provided.
No action is to be taken, nor should any indication be given as to the decision likely to be taken in respect of the request. ….
AFP will seek advice from the Attorney-General or the Minister on a case-by-case basis to ensure ongoing AFP actions correlate with Australian Government policy and other international obligations.”

Letter from Justice and Customs Minister David Johnston, 3 August 2007

“The AFP Guidelines state the AFP may provide assistance, without reference to the Attorney-General or the Minister for Justice and Customs, until charges are laid for an offence that attracts the death penalty. After charges have been laid for an offence attracting the death penalty, the AFP will seek advice from the Attorney-General or the Minister for Justice and Customs to ensure ongoing AFP actions correlate with Australian Government policy and other international obligations.

“The Minister is provided with a written AFP Ministerial submission (brief) which outlines the background, full details and relevant considerations of the request to authorise the continuation of police to police assistance in post-charge death penalty situations. Should the Minister require further information or clarification he may request a fuller written or verbal brief from the AFP in order to make a decision. The considerations the Minister may take into account vary on a case by case basis.

“Since the formulation of these guidelines, the Minister has been asked three times to authorise the continuation of police to police assistance in post-charge death penalty situations. In these situations, the Minister authorised the assistance to continue in the form of forensic support, intelligence and Foreign Law Enforcement Agency liaison. Assistance was provided to the Indonesian National Police (INP), the Royal Malaysia Police (RMP), and the Tonga Police Force (TPF).

“On all occasions, no guarantee was sought from these agencies’ government that the death penalty would not be sought or applied in relation to the investigation.”

Commentary and analysis

Government Authorises More Death Penalty Cooperation, New South Wales Council for Civil Liberties media release: 7/2007, 12 August 2007

“The [Howard] federal government admitted this week that it has, on at least three occasions, authorised the use of Australian resources in cases involving the death penalty overseas. In a letter to the New South Wales Council for Civil Liberties (CCL) from the Justice Minister David Johnston, the Justice Minister has confirmed that the federal government authorised the Australian Federal Police (AFP) to cooperate in three cases after capital charges were laid. The cases were in Indonesia, Malaysia and Tonga. According to the Justice Minister, in none of these cases did the Australian government obtain a guarantee that the death penalty would not apply.”

Australia, the Death Penalty and the Need for Law Reform, Michael Walton, NSW Council for Civil Liberties, 2006

“Australia has ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, which commits Australia to a complete prohibition on capital punishment for all time – even in times of war and threats to national security. However, documents obtained under freedom of information suggest that the Howard government has decided that these international human rights obligations cease at Australia’s borders. This means that Australian officials overseas, including the AFP, do not need to comply with these obligations.”

The death penalty worldwide: developments in 2004, Amnesty International, AI Index: ACT 50/001/2005, 5 April 2005

“Tonga: A bill to introduce the death penalty for possession of illicit drugs was defeated in the Tongan parliament by a vote of 10 to 7 on 27 September 2004. One member of parliament said it was a “nonsense bill” tabled by the government without any strong supporting arguments. Another objected that there was no classification of the drugs whose possession would be punishable by death.”

Death penalty news, January 2006, Amnesty International, AI Index: ACT 53/001/2006, 1 January 2006

“Tonga – On 10 November 2005 Tevita Siale Vola, the first person convicted of murder in this Pacific island nation in over 20 years, was spared the death penalty and sentenced instead to life imprisonment. In his judgement, Justice Robin Webster, the Chief Justice of Tonga, cited international jurisprudence and human rights standards before concluding that the death penalty should only be applied in “the rarest of rare cases when the alternative option is unquestionably foreclosed.”