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Human rights in Tonga

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Tonga is a constitutional monarchy with a population of approximately 130,000.[1] Politics and the economy are dominated by the king, the nobility, and a few prominent commoners. Economic, social and cultural rights are generally well respected. There are, however, a number of issues concerning protection of civil and political rights, particularly freedom of expression, and rights to political participation. Violence against women is a serious issue.

International treaties

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Tonga joined the United Nations in 1999. It is party to two of the nine core human rights treaties - the Convention on the Rights of the Child (CRC) and the International Convention for the Elimination of All Forms of Racial Discrimination (CERD).[2] In May 2008, during its Universal Periodic Review (UPR) by the United Nations Human Rights Council, Tonga accepted recommendations to ratify some of the other treaties including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Convention Against Torture (CAT).[3] Although public consultation has taken place in relation to ratification of CEDAW, opponents are concerned and protested that it could open the way for same-sex marriage and abortion.[4]

Constitutional protections

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Domestic human rights protections include a Declaration of Rights in the 1875 Constitution of Tonga. This protects a number of civil and political rights such as prohibition of slavery (clause 2), equality before the law (clause 4), freedom of religion (clause 5), freedom of speech (clause 7), and a number of criminal procedure rights (clauses 9–16). Notable omissions from the Declaration of Rights are the right to life, freedom from torture, freedom from discrimination and comprehensive protections for economic and social rights.

Women's rights

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Further information: Women's rights in Tonga

Along with Palau, Tonga is one of only two countries in the Pacific region (and seven countries in the world) that is yet to ratify the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). In September 2009, the Tongan Legislative Assembly voted 18 to 1 with 4 abstentions not to ratify CEDAW. In announcing the decision not to ratify, the Tongan Prime Minister stated that ratification 'would cut across our cultural and social heritage that makes up the Tongan way of life.' [5] Further, Tonga did not want to ratify with reservations or undertake a 'ratification of convenience.' [6]

In 2013, Tonga enacted the Family Protection Act 2013.[7] Violence against women appears to be pervasive in Tonga, although there is limited empirical data available. According to the Tongan NGO Legal Literacy Project of the Catholic Women's League, estimates suggest that between 31% and 62% of women are victims of violence by an intimate partner.[8] Marital rape was criminalised in 2013.[9] Women are able to lease land, but they are unable to own land. Inheritance to land title passes through male heirs. This is a significant barrier to the economic empowerment of women in Tonga.[10]

Abortion is illegal in Tonga, with a penalty of up to 7 years imprisonment.[11]

Freedom of expression

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Although the Constitution provides for freedom of speech and of the press, these rights are not always protected in practice. Politicians and media outlets seeking greater democracy often have their rights curtailed. For example, since 2008, the board of the government-owned Tonga Broadcasting Commission has directed that all programming be reviewed by TBC appointed censors prior to broadcast.[1] There are also a number of cases where attempts to limit media freedom have been challenged. See for example, Utoikamanu v Lali Media Group Ltd [12] and Taione v Kingdom of Tonga.[13]

Political participation

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An ongoing issue in Tonga for many years has been the absence of full representative democracy. After a process of constitutional reform, in the November 2010 elections, a majority of the seats (17 out of 26) in the Tongan Parliament were elected by universal suffrage, with the remaining nine seats being reserved for members of Tonga's nobility. This marked a shift away from the 165-year rule of the monarchy towards a fully representative democracy.[14] The Taimi Media Network described it as "Tonga’s first democratically elected Parliament".[15]

Sexual minorities

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Further information: LGBT rights in Tonga

Sodomy is illegal in Tonga, with a maximum penalty of 10 years' imprisonment, although there have been no prosecutions for such offences in recent years. During its Universal Periodic Review in 2008, Tonga rejected three recommendations from the Netherlands, Canada and the Czech Republic to decriminalise same-sex conduct and one recommendation from Bangladesh to continue to criminalise same-sex conduct.[16] Instead, Tonga noted that “[w]hilst current laws might criminalise certain consensual sexual conduct, Tonga is a Christian society that believes in tolerance and respect across difference. A respect for difference allows the widest margin of appreciation to lawmakers as well as other stakeholders and encourages robust debate about equality within society.”[17] This response leaves Tonga's position open for future UPR reviews which may eventually result in a positive human rights outcome.[18]

National human rights institution

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Tonga does not have a national human rights institution. There is however a Public Complaints Commissioner who receives and investigates complaints about government departments. The Tongan Government has also indicated that it is considering establishing a national human rights institution.[19]

Capital punishment

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Further information: Capital punishment in Tonga

The death penalty is legal in Tonga, but has not been imposed since 1982. Tonga is considered an abolitionist in practice. Tonga and Papua New Guinea are the last Pacific Island countries to retain the death penalty.

References

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  1. ^ a b 2010 Human Rights Reports: Tonga (US State Department).
  2. ^ "Ratifications - Tonga". Archived from the original on September 27, 2011. Retrieved August 2, 2011.
  3. ^ Universal Periodic Review: Report of the Working Group on the Universal Periodic Review: Tonga A/HRC/8/48 (5 June 2008), para 63(3)(5)(6)(7).
  4. ^ "Tonga Govt sends CEDAW back to the public". RNZ. February 6, 2017.
  5. ^ "Tongan Parliament decides not to ratify CEDAW" (Press Release, 18 September 2009), para 3. Retrieved 2011-06-21.
  6. ^ "Tongan Parliament decides not to ratify CEDAW" (Press Release, 18 September 2009), para 4. Retrieved 2011-06-21.
  7. ^ "FAMILY PROTECTION ACT 2013" (PDF). Crownlaw.gov.to. Archived from the original (PDF) on 2016-02-10. Retrieved 2016-05-26.
  8. ^ Universal Periodic Review: Summary of Stakeholder Submissions: Tonga A/HRC/ WG.6/2/TON/3 (11 April 2008), para 13.
  9. ^ Section 29 of the Family Protection Act 2013 reads: "Subject to clause 12 of the Constitution, in addition to liability under this Act, a respondent may also be prosecuted under other criminal laws for the time being in force for his acts if the facts disclose the commission of a separate criminal offence under those provisions. Note: For example, (without limitation), assault, offences endangering life and health, grievous bodily harm, rape, other sexual offences, murder and manslaughter and sexual exploitation through people trafficking and smuggling" [1] Archived 2016-02-10 at the Wayback Machine
  10. ^ "Female economic empowerment in Tonga has a long way to go" (Women and Child Crisis Centre, Tonga, 1 September 2010).
  11. ^ "Criminal Offences Act, sections 103, 104, 105". PACLII. Retrieved 27 September 2021.
  12. ^ Utoikamanu v Lali Media Group Ltd [2003] TOCA; 6 CA 4/03 & 10/03 (25 July 2003).
  13. ^ Taione v Kingdom of Tonga [2004] TOSC 47; CV 374/ 2004 (15 October 2004 Webster CJ).
  14. ^ "Strong showing for Tonga democrats in election". BBC News. British Broadcasting Corporation. 2010-11-26. Retrieved 2011-08-02.
  15. ^ "Absence of PM from opening of Parliament questioned" Archived 2012-03-16 at the Wayback Machine, Taimi Media Network, 9 June 2011
  16. ^ Universal Periodic Review: Report of the Working Group on the Universal Periodic Review: Tonga A/HRC/8/48 (5 June 2008), para 65.
  17. ^ Universal Periodic Review: Report of the Working Group on Universal Periodic Review: Tonga A/HRC/8/48 (8 June 2008), para 65.
  18. ^ Natalie Baird "The Universal Periodic Review as a Legacy of the Universal Declaration of Human Rights: Potential Pacific Impact" in NZIIA and NZHRC Celebrating Human Rights: Sixty Years of the Universal Declaration (2009) at p 62.
  19. ^ Universal Periodic Review: Report of the Working Group on the Universal Periodic Review: Tonga A/HRC/8/48 (5 June 2008), para 63(23) and (24).
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