Capital punishment in Tonga

Capital punishment is legal in Tonga, but has not been imposed since 1982. The country's lack of executions puts it into the category of 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 form 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. This Act includes death in its list of punishments for criminal behaviour. Capital punishment may be imposed for the crimes of murder and treason. It may not be imposed on a pregnant woman. The ban on imposing the death penalty on a pregnant woman was added to the Criminal Offences Act via an amendment in 1939. 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. The jury who decides this will, as a general rule, be the same jury who convicted her. A person under 15 years old cannot receive the death penalty for murder. However, due to the wording of the Act, it is unclear whether a person under this age may receive death as punishment for treason.

In order for the death penalty to be imposed, the King must assent. He must do so with the consent of the Privy Council of Tonga. The method of execution used is death by hanging. After the execution of the offender, a medical officer must supply a certificate of death. The requirement for a certificate of death was inserted by way of an amendment in 1958. The jury who convicted the offender, alongside a magistrate for the district in which the death sentence was executed, must hold an “inquest” into the body of the offender. The jury is to ascertain the identity of the deceased (that is, he or she is the offender they convicted). The jury must also ensure that the “sentence of death was duly executed on the offender,” meaning that in addition to a medical certificate, the jury must ascertain that the offender is dead. Those who have received the death sentence have their place of burial decided by the Tongan Privy Council – a place is chosen, and every offender executed will be buried in this place. The Tongan Privy Council is also able to make “regulations” regarding executions, for the purposes of “guarding against any abuse in the execution,” “for giving greater solemnity thereto,” and to publicise outside of the prison that an execution is taking place.

The last executions in Tonga took place in 1982, when Haloti Sole, Livingi Sole and Fili Esau were hanged for murder. In the same year, the Tongan Parliament discussed abolishing the death penalty, but decided to retain it.

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, 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.005