Tonga: The Last Retentionist State in the Pacific

With Papua New Guinea’s unexpected decision to abolish capital punishment for all crimes on 20 January 2022, Tonga is now the last retentionist state in the Pacific region. In Tonga, the death penalty is a discretionary punishment available upon a conviction for murder or treason, and is carried out by hanging. Abolition, however, is not currently on the agenda of the Fale Alea, Tonga’s legislature. The Tongan government can be forgiven for having other priorities. A devastating underwater volcanic eruption on 15 January 2022 severely damaged the country’s coastal infrastructure, affected drinking water supplies, and has caused ongoing hardship in one of the world’s most remote societies. Nevertheless, this blog post considers the implications of Tonga now standing alone among Pacific retentionists, and what the prospects of abolition in the medium term might be.

Amnesty International has long classified Tonga as an ‘abolitionist in practice’ state, because it has not carried out executions in more than a decade and has no immediate plans to resume doing so. In fact, following the last executions in 1982, no one has even been sentenced to death in Tonga.[i] However, there have been several close calls. When passing sentence in R v Vola [2005],[ii] Webster CJ stated that the death penalty could be imposed in “one of the rarest of rare cases where the alternative option of life imprisonment is unquestionably foreclosed”, mirroring the position in Indian jurisprudence. In 2006, deadly civil unrest in the capital, Nuku‘alofa, again raised the spectre of death sentences being passed for murder,[iii] although none eventually were. The shocking murder of LGBTQ activist Polikalepo Kefu in May 2021 also led to public calls for the death penalty to be imposed. In that case, Whitten LCJ “seriously considered” doing so but ultimately decided in favour of a life sentence for the perpetrator. Most recently, in August 2021, the Tongan legislature debated expansion of the death penalty to drug trafficking offences, although that proposal was ultimately rejected by a majority of legislators. The debate over the Illicit Drugs Control (Amendment) Bill 2021 emphasised the scourge of drug use and the failure of the government to control what was portrayed as a national crisis.

In 2022, Tonga’s death row therefore lies empty. But as the last retentionist holdout in an otherwise abolitionist region, Tonga’s death penalty status is far more important than its small population and remote location suggests. As in the cases of current and former regional holdouts such as Belarus (the last retentionist state in Europe), Guatemala (which in 2017 was the last Central American nation to abolish for ordinary crimes),[iv] and Chile (which in 2001 was the last South American nation to abolish for ordinary crimes),[v] abolition in Tonga would carry great significance, belying the country’s usual international clout. Voting at the UN Human Rights Council and UN General Assembly on regular anti-death penalty resolutions, the development of regional customary international law and treaties, and abolitionist diplomacy vis-à-vis retentionist states all rely upon united continental blocs for maximum effectiveness.

It is Tonga’s system of government that likely explains its intransience on abolition. Tonga’s is the only remaining hereditary monarchy within the Pacific, excluding Commonwealth nations that maintain the British monarch as a ceremonial head of state. Tonga’s system of government even approached that of an ‘absolute monarchy’ until 2006, when King George Tupou V ascended to the throne and devolved power to his Cabinet ministers. The monarchy is still central to daily life in Tonga, and the availability of death as a formal criminal sanction still plays a symbolic role in reasserting the monarch’s sovereign power over life and death. Before Tonga became abolitionist in practice, the king routinely considered death penalty cases for commutation to life imprisonment.[vi] Royal pardons in death penalty cases have long been regarded as a means for hereditary rulers to display authority, benevolence, and religiosity, even in constitutionally constrained monarchies.[vii] The power to affirm or to alleviate a death sentence, as a key trapping of sovereignty, plays a similar role in Tonga to that of other traditional monarchies, such as those in Thailand, Lesotho, Morocco, and Brunei.

What will it take for Tonga to abolish? The monarchy’s status as a central justification for retaining the death penalty suggests two potential avenues for reform. First, campaigners for abolition may find it helpful to point to other monarchies that do not retain capital punishment. For Tonga, among the most important are the Vatican (Tonga is approximately 15% Catholic), and the abolitionist monarchies in Asia (Bhutan and Cambodia). Samoa, a neighbouring country with a ceremonial head of state who performs similar functions to a constitutional monarch, is also a helpful model. Counterparts in these jurisdictions may be better placed to encourage reform in Tonga compared to abolitionists in the United Kingdom, Australia, and New Zealand, where perceptions of neocolonialism could generate local opposition.

Second, with the gradual loosening of royal power following political reforms in the 2000s and 2010s, Tonga is moving toward representative democracy, an essential ingredient for abolition in many other parts of the world. Tonga’s elected political leaders may feel increasingly empowered to take steps toward de jure abolition without the status of the monarchy interfering. That Tonga is the last country in its wider region to abolish capital punishment ought to be further incentive. The Tongan government can use this spotlight to its advantage, to create further solidarity with its neighbours, with other abolitionist monarchies, and to emerge as a regional leader on human rights in the leadup to the country’s next Universal Periodic Review cycle, beginning in 2023.

Daniel Pascoe is an Associate Professor at the School of Law, City University of Hong Kong, and an MPhil and DPhil graduate of the Oxford Centre for Criminology. Twitter: @DC_Pascoe

Andrew Novak is an Associate Professor of Criminology, Law and Society at George Mason University. Twitter: @andrewjnovak

[i] Daniel Pascoe and Andrew Novak, ‘Holdouts in the South Pacific: Explaining Death Penalty Retention in Papua New Guinea and Tonga’ [2022] International Journal for Crime, Justice and Social Democracy, forthcoming.

[ii] R v Vola [2005] Tonga LR 404.

[iii] e.g. R v Sosefo [2008] Tonga LR 108.

[iv] Guatemala and El Salvador still retain capital punishment for certain military offences and are classified by Amnesty International as ‘abolitionist for ordinary crimes only’.

[v] Chile, Brazil, and Peru still retain capital punishment for certain wartime offences and are classified by Amnesty International as ‘abolitionist for ordinary crimes only’.

[vi] Amnesty International, The Death Penalty (Amnesty International Publications 1979).

[vii] Daniel Pascoe, Last Chance for Life: Clemency in Southeast Asian Death Penalty Cases (OUP 2019).