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Background

The Kingdom of Tonga is located in the Southwestern Pacific ocean. Consisting of 176 islands, there are three main island groups: Tongatapu, Ha’apai, Niuas and Vava’u. Tonga was unified under the reign of King George Tupou (1845-93). During the reign of King George II, Tonga became a British protectorate, relinquishing the administration of foreign affairs to a British consul who had veto over foreign policy and finances. Tonga regained independence in 1970 and is now a member of the Commonwealth.

The Legal system

As a member of the commonwealth, Tonga is a common law country. Though much of the law is based on the laws of England, there are some major distinctions between the Tongan and English legal system, especially with regards to laws governing land ownership.

The Tongan constitution was enacted in 1875 by King George Tupou and has been subject to numerous amendments, the latest being the Constitution of Tonga (Amendment) Act of 2021.

Legal Aid

i. State Sponsored legal aid: The Family Protection Legal Aid Centre (FPLAC), sponsored by the Ministry of Justice, offers legal aid to survivors of domestic violence and gender-based violence. There is currently no further legal aid for those accused. Those accused are expected to represent themselves. In certain cases, the judge may choose to appoint a pro bono lawyer, but there are no such requirements.

ii. NGOs and pro bono legal aid: There are a number of pro bono legal aid providers in Tonga, including DLA Piper, the Blue Pacific Pro Bono Collaborative and PILnet.

Source of Defendants Rights

National Sources of Defendant’s rights: The Act of Constitution of Tonga (hereafter: Constitution) details a number of Defendant’s rights under the Declaration of Rights, guaranteeing fundamental human rights. However, some fundamental rights are not explicitly declared in the Constitution and are scattered in many different Acts concerning a variety of issues, including, for example, the Health Services Act and the Police Act. The Criminal Offences Act also makes a number of provisions with regards to the rights of the accused as well as court procedures and conditions of punishment.

International Sources of defendant’s rights: Tonga has ratified a limited number of treaties including the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the Rights of the Child (CRC). Though Tonga has signed the Convention on the Rights of Persons with Disabilities (CRPD) they have yet to ratify it. Crucially, Tonga has not signed nor ratified the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAM). They have also yet to sign or ratify the International Covenant on Civil and Political Rights (CCPR)

Rights of the Accused

Right Against Unlawful Arrests, Searches and Seizures: Clause 16 of the Constitution declares that it is unlawful for anyone to forcibly enter the premises of another to search or take any property unless they are issued a search warrant by a magistrate. Should someone be under the belief that lost property is concealed in the premises of another, he is required to make an affidavit before a magistrate in order for a warrant to be granted to the police to conduct the search. The Tonga Police Act (hereafter: the Police Act) identifies, in section 115, that a police officer must inform the person arrested of the nature of the offence for which he is being arrested. This section also details the cases in which a police officer may arrest a person without a warrant, those being where there is reasonable grounds to believe that the accused is: (a) Committing an offence (b) Is about to commit an offence; or (c) Has committed an offence.

Right Not to be Tortured or Ill-Treated: Section 66 of the Prisons Act of 2010 states that it is prohibited to subject one to corporal punishment, torture, cruel, inhumane or degrading treatment. However, explicit provisions against torture cannot be found in the Constitution itself. Further, it should be noted that Tonga is currently not party to the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT).

Right to Medical Care: Section 3 of the Health Services Act, detailing the functions of the Minister of Health, states that medical care must be available to all. Further, section 9 of the same Act states that it is the duty of the Minister of Health to provide establishments as are necessary to satisfy the needs of public health.

Right to be Informed of Charges: Clause 11 of the Constitution states that the accused cannot be tried or summoned in court unless he receives a written indictment detailing the offence charged against him and grounds for the charge. Clause 13 of the Constitution further states that one cannot be tried on charges for which he was not brought to trial except:
(a) Where complete commission of the offence charged is not proved but evidence points towards an attempt to commit that offence. In such cases, the accused can be convicted of an attempt;
(b) Where an attempt to commit an offence is charged but evidence establishes full commission;
(c) On trials for embezzlement, jury can find the accused not guilty of embezzlement but guilty of larceny and on trials for larceny, jury can find the accused guilty of embezzlement.
Section 115 and 117 of the Police Act states that an officer must inform the person arrested of the nature of the offence for which they are arrested.

Right to Presumption of Innocence: Section 46 of the Evidence Act states that, in the absence of evidence, one cannot be presumed to have committed any crime.

Right Against Self-Incrimination: Clause 14 of the Constitution states that the accused cannot be intimidated into giving evidence against himself.

Right to Counsel: While this is not explicitly provided for in the Constitution, the Magistrate’s Court Act makes relevant provisions with regards to representation and Counsel. Section 20 states that the Defendant is entitled to conduct their cases in person or by a law practitioner.

Right to Due Process: Clauses 9 to 16 of the Constitution outline the expected procedures to be taken from arrest to trial, guaranteeing due process.

Right to Equal Protection of the Laws: Clause 4 of the Constitution states that there is one law in Tonga which applies regardless of class. The law is the same for all people, Tongans and non-Tongans alike.

Right to Bail: Section 3 of the 1990 Bail Act provides that, subject to certain limitations, every individual who
(a) Is arrested for or charged with a criminal offence; or
(b) Is committed for trial before the Supreme Court; or
(c) Has been convicted of a criminal offence and (i) Has appealed against conviction or sentence; or (ii) Whose case has been adjourned in order to obtain further information before sentencing Should be released on bail until the date when he is required to surrender to custody.
The section also states that those charged with murder or treason can only be granted bail by the Supreme Court or Court of Appeal.

Right Against Ex Post Facto Prosecution: According to Clause 20 of the Constitution, it is unlawful to enact retrospective laws that may curtail or take away existing rights or privileges.

Right Against Double Jeopardy: Clause 12 of the Constitution declares that no one can be tried twice for the same offence, regardless of whether he was acquitted or convicted in the first trial. This is subject to the exception of cases where the accused confesses after being acquitted so long as there is sufficient evidence to prove the truth of this confession.

Right to a Fair Trial:

• Generally: Clause 14 of the Constitution provides for the right to fair trial for all those accused
• Right to a Trial by Jury: Clause 99 of the Constitution provides that any person tried before the Supreme Court is to be tried by a jury where the criminal offence concerned is punishable by imprisonment exceeding two years or a find exceeding 500 pa’anga. Crucially, the clause also states that the law of trial by jury should never be repealed.
• Right to a Speedy Trial: Pursuant to Section 116 of the Police Act, a person arrested without warrant must be brought before a Magistrate to be charged within 24 hours of being arrested. There is no parallel provision to be found in Statutes and the Constitution on individuals arrested with warrants
• Right to an Impartial Judge: Clause 15 of the Constitution provides that the court must be unbiased and that all judges must be entirely free. It is unlawful for a judge to sit in cases: (a) That concern himself (b) That concern his relations Clause 15 also prohibits judge or magistrate or juryman from receiving presents or money from the defendant or his friends
• Right to Language Interpretation: This is not mentioned in the Constitution.
  
  
• Right to Habeas Corpus: Clause 9 of the Constitution states that the writ of Habeas Corpus is to apply to all people and should never be suspended. The only exception is in cases of war or rebellion, where the King may suspend it.
  
  
• Capital Punishment: Capital punishment is legal in Tonga but has not been practiced since 1982. Amnesty International classifies Tonga as abolitionist in practice.
  
  
• Right to Appeal: Section 74 of the Magistrate’s Court Act provides that in every criminal and civil case, any party has the right of appeal to the Supreme Court. Any party who appeals is granted a further right of appeal on legal matters to the Court of Appeal with permission of the Supreme Court of Court of Appeal.

Rights of Counsel

Right to Provide Representation: According to Section 8 of the Law Practitioners Act, all those recognised as a practitioner under the Act may, subject to certain restrictions, appear as counsel in any court.

Pre-Trial Procedure

Police procedures

Arrest, Search and Seizure Laws:

• Search
Section 143 of the Police Act makes general provisions for safeguards during searches. It is stated that a police officer searching a person should:
(a) Ensure, to a reasonable extent, that the way in which the search is conducted caused minimal embarrassment to the person;
(b) Take reasonable care to preserve the dignity of the person;
(c) Restrict a search in public to examination of outer clothing and
(d) Conduct strip searches out of public view, should it be necessary.
Further provisions are made as to the police officer conducting the search, that they must be
(a) Of the same sex as the person being searched; or
(b) If no officer of the same sex is available at the time, the officer must direct someone of the same sex to conduct the search.
Section 145 of the same Act provides that there must be a limit on the period of detention for a search to be conducted. The person detained must not be held for longer than is reasonably necessary for the search to be conducted

• Seizure
  Pursuant to Section 122 of the Police Act, searches and seizures may be conducted without a warrant, if a police officer believes, on reasonable grounds that
  (a) A person is in possession of any of the objects mentioned in subsection (2) of the same section; and
  (b) It would be unreasonable and contrary to the interests of justice if the officer was required to apply for a warrant in order to conduct the search.
  Section 122(3) provides that a police officer may seize any object or part of an object which he believes, on reasonable grounds, is an object mentioned in subsection (2). See the Police Act Section 122(2) for more details.
  Section 122(4) elaborates that the Tonga Police is entitled to keep objects seized during a search only for as long as is reasonably necessary but not exceeding 60 days unless a Magistrate issues an order authorising a longer period of detainment (on application by a police officer).
  It is further stated, in Section 122(6) that the exercise of powers must be followed by a written report to the commissioner within 24 hours, covering:
  (a) The details of the search;
  (b) The objects found;
  (c) Any offences detected; and
  (d) Other relevant details.
  Similar rules apply to searches and seizures of places, vehicles, vessels and aircrafts without warrant, pursuant to Section 123 of the Police Act. Subsection (2) provides that an officer may seize any object that the officer believes, on reasonable grounds
  (a) To be relevant to the offence or any other offence; or
  (b) Needs to be seized to prevent its concealment, loss or destruction, or its use in committing or continuing to commit an offence; or
  (c) Is a prohibited explosive or weapon or
  (d) Is a prohibited drug or other substance or
  (e) Is stolen property. Section 122 rules on the length of detainment apply.

Identification procedures

Under Section 118 of the Police Act, officers may do the following for the purpose of identifying an individual under lawful custody for an offence:
(1) Take a photograph of the person;
(2) Take a photograph of a scar or tattoo or any other identifying feature on the person;
(3) Measure the person’s height and weight;
(4) Take the person’s (a) Fingerprints; (b) Palm prints; (c) Footprints; (d) Voiceprint; or
(5) Take a sample of the person’s handwriting
(6) Request a doctor or nurse to take a body sample with the approval of a senior police officer.
The following considerations must be had before a senior officer approves the request in (6):
(a) Whether the person is under arrest
(b) Whether there are reasonable grounds to believe that the person has committed an offence;
(c) Whether taking the body sample will likely produce evidence that might confirm the person’s involvement in committing the offence;
(d) Whether taking the body sample is otherwise justified in the circumstances.
Further, beyond senior approval, the following applies: (a) If the person is at least 18 years old, he must consents to the taking of the sample; or (b) If the person is less than 18 years old and at least 7 years old, a guardian, parent or lawyer must consent to the taking of the sample

Court Procedures

Pre-Trial:

i. Starting Proceedings:
The Magistrate’s Court Act provides an outline on commencing proceedings, namely on the application for and issuing of summons. Sections 13 to 17 provide that:
(a) All those wishing to institute a prosecution in a Magistrate’s Court must apply to the clerk for a summons and must state (i) The nature of the offence; and (ii) The time and place at which the offence was committed.
(b) Upon the application if it appears that the person is reasonably suspected to have committed the offence or has committed the offence, the clerk should make a summons stating (i) The offence charged; and (ii) The time and place of commission; and (iii) A requirement for the defendant to appear at a specific time before the court to answer the charge.
(c) If the summons is not served more than 24 hours before the time and date stated in the summons or more than 14 days, the case will not proceed without the express consent of the defendant;
(d) All summons must be for one offence only though a complainant may bring more than one charge against the same defendant through numerous summons;
(e) All summons must be signed and sealed by the Magistrate.
(f) Summons must be served upon the defendant by a Bailiff, constable or other police officer through (i) Personal delivery to the defendant himself; or (ii) Delivery to some adult inmate at his place of residence.
Clause 11 of the Constitution ensures that the defendant receives a written indictment clearly stating the offence prior to the trial.
Rule 2 under Order 25 of the Supreme Court Rules details the procedure during pre-trial conference. The Court can, upon informal request by the plaintiff to the Registrar or of its own motion, convene a conference and give directions for the conduct of the trial. Other parties may also request a pre-trial conference.

ii. Appearance of Witnesses:
Section 68 of The Magistrate’s Court Act outlines the procedure for summoning witnesses:
(a) All parties requiring witnesses must state the name and address of each witness to the clerk;
(b) The clerk must then prepare separate subpoenas for each witness;
(c) Each subpoena is to be signed and sealed by the Magistrate or Justice of Peace;
(d) Following signature, they are to be issued and effected.

iii. Defendant’s Failure to Appear Where it appears to the court that a person accused of a criminal offence is likely to abscond, Section 52 of the Magistrate’s Act provides the following:
(a) The Magistrate should issue a warrant for the arrest of the accused
(b) Such warrant can be issued irregardless of the fact that a summons for the same charge has already been issued and that the time specified for appearance in court has yet to expire
(c) Every warrant must be signed and sealed by the Magistrate issuing it
(d) Every warrant must (i) Be directed to all of the constables of the Kingdom; and (ii) State the nature of the offence and name the accused to be arrested; and (iii) Order for the arrest of the accused and his appearance before the Magistrate issuing the warrant.

Trial:

i. Non-appearance by Defendant:
Section 20 of the Magistrate’s Court Act outlines the procedure on non-appearance by the Defendant. In such cases, the Magistrate may either:
(a) Adjourn the hearing of the case to a later date;
(b) After proof of service of summons, hear and determine the case in the absence fo the Defendant; or
(c) After proof of service of summons, issue a warrant for arrest of the Defendant and adjourn the hearing.
And where the Defendant is arrested under a warrant, the Magistrate may either: (a) Admit him to bail; or (b) Order him to remain in custody until next sitting of the Court At the following sitting, the Magistrate should proceed with the hearing of the offence.

ii. Witnesses:
As provided in Section 68 of the Magistrate’s Court Act, the Magistrate may issue a subpoena for any person to appear as a witness. Section 69 further provides that the Magistrate may issue a warrant for arrest where:
(a) A person is summoned to attend as a witness; and
(b) Fails or refuses to attend; and
(c) The Magistrate is satisfied that the summons has been served.
Upon arrest, the person should be brought before the Magistrate and inquired on his non-attendance. Unless non-attendance resulted from circumstances beyond his control, the Magistrate may order: (a) Imprisonment not exceeding 8 days without hard labour; or (b) A fine not exceeding $200. Section 70 of the same Act provides that where a witness refuses to be sworn or refuses to give evidence when ordered, he is to be deemed guilty of contempt of the Court and may be imprisoned by the Magistrate for a term not exceeding one month.

iii. Pleas:
The Criminal Offences Act offers a brief outline of trial procedures. Section 42 (1) provides that, when a person is arraigned on an indictment:
(a) He is entitled to make a plea of not guilty and any demurrer or special plea;
(b) He is entitled to plea not guilty of offences specifically charged in indictment but may plead guilty of another offence which he might be found guilty of;
(c) If the Defendant stands mute and does not answer directly to indictment, the Court may order a plea of not guilty on his behalf and he is to be treated as having so pleaded.
Section 24 of the Magistrate’s Court Act makes similar provisions on the procedures at the commencement of the hearing:
(a) Magistrate must (i) State the offence charged in the summons to the Defendant; and (ii) Ask whether he is guilty or not guilty;
(b) If the Defendant pleads guilty, the Magistrate is entitled to make orders as he sees fit;
(c) If the Defendant pleads not guilty, the Magistrate should order the witnesses on both sites to remain out of the hearing until called on for evidence;
(d) The Magistrate is then to proceed to hear evidence of the complainant and his witnesses as well as that of the Defendant and his witnesses;
(e) The Evidence of every witness must be given on oath but a Defendant may choose to make an unsworn statement ;
(f) The Defendant or his lawyer is entitled to cross examine the complainant and his witnesses upon relevant facts and the complainant or his lawyer has similar rights;
(g) The complainant or his lawyer is entitled to address the Court at the commencement of his case and the defendant is similarly entitled at either the commencement or the conclusion of his case;
(h) In certain cases, the Magistrate may allow the complainant to address the Court a second time at the conclusion of the case;
(i) At the conclusion of the case, the Magistrate shall give his decision;
(j) The clerk must keep a record of the charge, evidence and order made by the Magistrate.

Sentencing:

Appeals:
According to Section 75 of the Magistrate’s Court Act, the appellant must, within 28 days of the date of the Magistrate’s decision, provide written notice to the Magistrate and other party stating his intention and grounds for appeal.
Further, the appellant must, along with the notice, deposit a prescribed appeal fee with the clerk, pursuant to the Court Fees Act.
Upon notice of the appeal and the deposit, bail may be allowed or refused at the Magistrate’s decision. Though the appellant may appeal refusal of bail within 14 days of such refusal by petition to the Judge of the Supreme Court.

Rights in Prison

Right to Humane Conditions of Confinement:
Section 66 of the Prisons Act prohibits the following punishments (a) Application of mechanical restraints (b) Subjecting a prisoner to corporal punishment, torture or inhumane and degrading treatment (c) Subjecting a prisoner to any punishment or treatment that may reasonably be expected to adversely affect their mental or physical health

Right to Medical Care in Prison:
Section 20 of the Prisons Act allows prisoners to make requests for access to health practitioners for consultation and treatment

Right to Mental Health Care:
This is not explicitly outlined in the provisions within the Prisons Act but may be inferred from the right to access a health practitioner.

Rights of Special Populations:
Under Section 24 of the Immigration Act, it is lawful for any person who is to be removed from the Kingdom to be detained in custody for the necessary period in order to make arrangements for removal. Beyond this, there are no specific provisions as to the rights of immigrants in detention.

Resources

- https://www.britannica.com/place/Tonga

- https://www.state.gov/reports/2022-country-reports-on-human-rights-practices/tonga

- https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=176&Lang=EN

- The Act of Constitution of Tonga: https://ago.gov.to/cms/images/LEGISLATION/PRINCIPAL/1988/1988-0002/ConstitutionofTonga.pdf_2.pdf

- Tonga Police Act

- Prisons Act

- Health Services Act

- Evidence Act

- Magistrate’s Court Act

- Bail Act

- Criminal Offences Act

- Immigration Act

- https://pjsp.govt.nz/assets/Bench-Books/Tonga-Bench-Book/in-Full/Tonga-Bench-Book-Criminal-Procedings.pdf