B. Process for preparing the report
III. Implementation of recommendations from the previous cycle (2013)
A. Treaty ratification, treaty reporting and overall work with human rights mechanisms
1. Consider and take steps to ratify the United Nations Convention Against Torture3 9. Tonga still has time to consider the ratification of the Convention Against Torture, Inhuman or Degrading Treatment or Punishment (CAT) before 2018.
10. In October 2016 Tonga was represented at the Convention Against Torture Initiative (CTI) Regional Workshop held in Fiji.
11. In June 2017, His Majesty’s Cabinet established a Committee comprised of relevant Ministries, Department and Agencies to consider the ratification of CAT and to review relevant legislation.4
12. The Tonga Police in their proposal for the establishment of a Committee to consider the ratification of CAT stated that CAT will provide a legal framework for a “zero tolerance” approach to torture and abuse, assist police, corrections facility officers and other forces by its clear guidance on the issue of accountability for their actions.
13. CAT promotes the development of good governance, the rule of law and security through mechanisms of accountability and international review.
14. In October 2017, Tonga was represented at a Roundtable Meeting with the Convention against Torture Initiative and the Office of the High Commissioner for Human Rights for ratification of the UN Convention against Torture.
15. However it is important to note that despite the fact Tonga has not ratified CAT, Tonga does not tolerate police brutality. Five police officers were prosecuted for manslaughter and assault on a Tongan New Zealand Police Officer who was visiting Tonga. Two of the police officers were convicted of manslaughter and one Police Officer was convicted of common assault. The civilian involved was convicted on a separate trial by a judge and jury with causing grievous harm to the victim.5
16. Tonga still has a whipping provision in it’s Criminal Offences Act [Cap 18]6. Tongan case laws has set aside whipping sentences. This is seen in the case of Fangupo v R [2010]
Tonga LR 124 – the sentence of whipping was set aside, as it was imposed. The Court of Appeal held that whipping could be considered unlawful in Tonga. The prohibition against torture is part of customary international law and is a rule from which states cannot derogate, whether or not they are a party to the various treaties such as CAT which prohibit it.7
17. The Education (Schools and General Provisions) Regulations 2002 provides that under no circumstances shall a teacher inflict corporal punishment on any student.8
18. The Family Protection Act 2013 also protects women and children from abuse and corporal punishment.
2. Consider ratification of core international human rights treaties and optional protocols (ICCPR, ICESCR, CRPD and CRC OPS)9
19. In May 2017, Tonga was represented at a Training on the Benefits to Pacific Island Nations of National Mechanisms for Human Rights Implementation/ Reporting and the Two Covenants, ICCPR and ICESCR hosted by the Office of the Human Rights Commissioner in Nadi, Fiji.
20. In June 2017, His Majesty’s Cabinet established a Committee comprised of relevant Ministries, Department and Agencies to consider the ratification of CAT and to review relevant legislation.10 The Tonga Police is piloting the process for the ratification of CAT.
21. Although Tonga has not ratified ICCPR, the Tongan laws continue to comply with the ICCPR principles as seen in the case of R v Vola [2005] Tonga LR 404, where the Tongan courts applied the principles of ICCPR despite Tonga’s non-ratification.
22. Although Tonga has not ratified ICESCR, the principles of ICESCR are incorporated in the Tongan laws, which includes laws to the right to adequate health care, right to education, and the right to a decent home, food, shelter, the right to fair wages and equal remuneration for equal value and right to take part in cultural life:
(a) New Education Act 2013 provides for that the compulsory school age is between 4 and 18 years of age.11 This was an increase from the previous compulsory school age of 6 to 13 years. It also imposes an obligation on parents to have a duty to have the child educated.12 The Act also introduces the principle of inclusive education for children with special needs, all children under the age of 19 year has a right to access quality education in Tonga, irrespective of the child’s gender, religion, socio-economic status, physical condition and location.13
(b) Tonga continues to have a Health Services Act 2010, Medical and Dental Practice Act 2001, Mental Health Act 2001, Public Health Act 2008, Tobacco Control Act 2002 and other pieces of legislation continue to govern and monitor medical and health services in Tonga. The Ministry of Health is currently reviewing some of these legislation to ensure that it has more modern provisions and to ensure that it is in line with international standards.
(c) Tonga has an Employment Relations Bill 2013 which is currently under consultation. This Bill ensures the fundamental rights and principles at work which includes prohibition of forced labour, freedom from discrimination, equal remuneration for work of equal value, freedom of association and rights to bargain collectively.14 Tonga is hopeful, that the consultations on this Bill will be complete and the Bill will be submitted to the Legislative Assembly for further debate.
23. On 6 June 2014 His Majesty’s Cabinet approved the Tonga National Policy on Disability Inclusive Development 2014-2018 and for the Tongan Government to ratify the Convention on the Rights of Persons with Disabilities.15
24. On 20 January 2015, the Social Protection and Disability Division was established under the Ministry of Internal Affairs as a focal point for persons with disabilities.
25. In 2016 the Social Protection and Disability Division worked together with the Attorney General’s Office to look at reviewing legislation to expedite the ratification of CRPD.
26. In 2017 the Social Protection and Disability Division conducted public consultations to all the Tongatapu districts and the outer islands on the Convention to create awareness before ratification.
27. In June 2017, the Social Protection and Disability Division engaged technical assistance from the Pacific Islands Forums Secretariat and the UNESCAP Pacific Office to examine the CRPD ratification and legislative implementation.
28. Tonga still has time to ratify the CRPD by 2018.
29. Although Tonga has not ratified the CRC Optional Protocols, the Tongan laws are in line with the Protocols. The Pornography Control Act 2002 criminalizes the sale or hire of pornographic material.16 The Criminal Offences Act [Cap 18] criminalizes any person who publishes child pornography, produces child pornography or possesses child pornography;
17criminalizes trading in prostitution18; and criminalizes a person who has carnal knowledge of a child or young person under the age of 12 years.19
3. Consider ratification of the Rome Statute of the International Criminal Court and fully align it’s legislation with all obligations under the Rome Statute20
30. The Attorney General’s Office sought the assistance of the International Committee of the Red Cross in drafting a policy paper to His Majesty’s Cabinet proposing the ratification of the Rome Statute on the International Criminal Court in 2013.
31. Tonga is considering domesticating specific legislation for the Rome Statute to apply within the Kingdom. This includes costs and the extent of the actual legislative review.
32. Tonga is hopeful to ratify the Rome Statute by 2018.
4. Consider ratifying the International Convention on the Protection of the Rights of All Migrant Workers and Their Families) as well as the ILO Convention21
33. Tonga became the 187th member state of the International Labour Organization (ILO) with effect from 24 February 2016. By becoming a member of the ILO, Tonga is indicating its commitment to decent employment opportunities, enhancing social protection and strengthening dialogue on work-related issues.22
34. Tonga has not ratified any ILO Conventions in its accession at this point of time, any ratification is subject to prior consultation with key stakeholders.23
35. In October 2017, Tonga was represented in the Pacific Consultation on Alliance 8.7 – Ending child labour, forced labour, modern slavery and human trafficking and preparing for the 4th Global Conference on the Sustained Eradication of Child Labour in Nadi, Fiji.
36. The Ministry of Internal Affairs has a specific division to looking after the interest of seasonal workers under the Recognized Seasonal Employer (RSE) Program by the government of New Zealand and the Australian Pacific Seasonal Worker Program Scheme (SWP).24
37. The Tongan Government gives special attention to ensure current seasonal workers are entitled to all relevant benefits and are not abused.25
B. Democratization and law reform process
1. Continue the momentum on the democratization process to ensure equal and full enjoyment of fundamental and human rights26
38. Tonga had its second general election under the new constitutional and political structure on 27 November 2014.
39. On 29 December 2014, Mr. Samuela ‘Akilisi Pohiva, People’s Representative for Tongatapu 1 was nominated by the Assembly to be appointed by the Monarch as Tonga’s
second elected Prime Minister under the new 2010 reforms. Mr. Pohiva became the first commoner to be democratically elected by a predominantly elected Parliament.
40. The new Prime Minister then went on to nominate eleven Representatives from the Assembly, one Noble’s Representatives and ten People’s Representatives to be appointed by His Majesty as Cabinet Ministers.27
41. His Majesty’s Cabinet continued as the highest executive body, replacing the Privy Council.
42. As expected with a new Cabinet, there was a number of re-shuffling of Ministerial portfolios and dismissals by the Prime Minister in his years in Office.
43. The changes in Government resulted in a submission to the Speaker of a motion for a vote of no confidence by the Noble’s Representatives. This motion was tabled on Monday 20 February 2017 28 and it took 7days to consider. It culminated in the rejection of the motion on 27 February 2017 by a vote of 14–10 and one representative abstained from voting.29
44. The Legislative Assembly was dissolved by an Instrument of Dissolution in accordance to clauses 38 and 77(2) of the Act of Constitution of Tonga (Cap 2) effective on 24 August 2017. The next general election for Tonga will be held on 16 November 2017.30 2. Continue to uphold and defend the fundamental values enshrined in its constitutional
history31
45. Tonga continues to be committed to maintaining the core human right values that are protected in the Tongan constitution. These include: the right to live in freedom; freedom to own and dispose property; freedom from slavery; equality of application of laws to all, regardless of gender, class, ethnicity or any classification; freedom of worship; freedom of expression; freedom of petition; freedom from unlawful detention (habeas corpus); right to fair trial; protection from double jeopardy; and, protection from unlawful arrest and search.
C. Gender equality
1. Promote and increase women’s participation in political life and formal decision making levels32
46. Tonga has continued to make commitments on the international, regional and national level to improve women’s political participation.
47. Tonga is committed to Sustainable Development Goal 5 to achieve gender equality and empower all women and girls.
48. 16 of 106 candidates for the 2014 General Elections were women, despite the high number of women, none were successful in the elections.
49. However, after a Supreme Court ruling in January 201633 one of the members of Parliament was forced to vacate his seat. This led to a by-election in July 2016 that resulted in a female candidate being elected into Parliament.
50. The November 2017 Elections has a total of 86 candidates, where 15 of those candidates are women.
51. Tonga continues to have a Women’s Division under the Ministry of Internal Affairs to look after women affairs and the implementation of the Family Protection Act 2013.
52. Tonga announced that it is ready to ratify CEDAW at the 59th session of the Commission on the Status of Women at the UN General Assembly in New York on 12 March 2015.
53. In September 2015, the third and Final Report for Tonga and the Millennium Development Goals was submitted to the United Nations the report showed progress and achievements to eliminate gender disparity in primary and secondary education.
54. The Tongan Government introduced the Tonga Strategic Development Framework 2015-2025 in 2015 and one of the seven national outcomes is for a more inclusive sustainable and empowering human development with gender equality. This is supported by the following Organisational Outcomes under the Social Pillar:
(a) improve gender equality by implementing the government’s gender development policy and ensuring a more balanced and effective engagement by both men and women in decision making and social, economic and political institutions (OO2.1e);34
(b) while recognizing the high status of women in Tongan culture, ensure that improved gender balance is built into all policies, plans, laws and initiatives (OO 2.3f);35
(c) develop an education system that better addresses the needs of both girls and boys and ensures a better gender balance at all stages of schooling (OO 2.4d);36
(d) build strong gender awareness, sensitivity to differences in needs in abilities, and other criteria into all programs.(OO 2.7f);37
(e) improve understanding of the many ways in which people resident in Tonga and overseas (in particular the Diaspora) interact in beneficial ways, and support the development of institutional arrangements and international agreements which facilitate this interaction - taking account of gender and other differences(OO 2.8a).38
55. Tonga was represented on the Promoting Evidence Based Policy Making for Gender Equality: Workshop on Gender training needs and design and Tonga Gender profile information and consultation meeting held in July 2017.
56. This was an Asian Development Bank (ADB) project aimed to develop a national capacity for gender mainstreaming in health and discussions on the role of statistics and gender indicators in decision making and identify priorities for training and developing capacity in this area.
57. Women are being increasingly represented in managerial and higher administrative positions in both government and private sectors. Since 2013, 13 women have held or currently holding Chief Executive Officer positions in Government.39
58. Tongan women also hold diplomatic positions overseas. To date the Ambassador of Tonga to Australia, Ambassador of Tonga to Japan, Tonga Consul General in San Francisco and Honorary Consulate of France, Netherlands and Sweden are women.
59. The Public Enterprise Boards have women as Directors, Deputies or members including Tonga Communications Corporation, Tonga Broadcasting Corporation, Tonga Water Board, Tonga Post & Fast Print Ltd, Tonga Airports Limited, Tonga Market Ltd and Ports Authority.
60. Women also hold prominent roles in the private sector as successful medium to small business owners and managers of retail stores; café and restaurants; hotel, resort and tourist facilities, catering services, handicraft and local produce market stalls, pre-school and day-care child services and more.
61. Tongan women also hold leadership roles in the regional and international organizations. for instance a Tongan woman was appointed to the position of United
Nations High Representative for the Least Developed Countries, Landlocked Developing Countries and Small Island Developing States (UN-OHRLLS) in May 2017. Thus becoming the first Tongan to hold such a senior position in the United Nations.
62. In 2014, the Legislative Assembly held the first ever Practice Parliament for Women in Tonga. This event was to increase the potential of women to become effective political leaders. It was to encourage and empower women to achieve their potential as leaders. This was supported by the United Nations Development Programme (UNDP).40
63. Tonga launched its Tonga Revised National Policy on Gender and Development in May 2014.
64. This Gender Policy was a result of collective partnership between Government, the Private Sector, Civil Society, the Community, and Development Partners.
65. The Tonga Revised National Policy on Gender and Development identified six Gender Equity Issues in Tonga namely:
• Family and Social Issues;
• Unequal access to employment and productive assets;
• Unequal Political Representation and Participation in Decision-Making;
• Different vulnerability, roles and capacity to respond to disasters;
• Environmental and climate change not properly acknowledged, by national strategies;
• Vulnerable women; and
• The Weak enabling environment for gender mainstreaming.
66. In June 2016, a one day National Women’s Forum was held to discuss the progress on the National Policy on Gender and Development 2014-2018. Key stakeholders from the Women’s Division of the Ministry of Internal Affairs, Tonga police, Ministry of Finance and other government departments with representatives from the Tonga National Centre for Women and Children, Women and Children Crisis Centre, Girl Guides, Civil Society and NGOs attended. The Minister of Internal Affairs speech stated that the statistics revealed gaps between men and women in regards to both genders in various aspects. In the 2011 census, there were 51,979 men and 51, 273 women recorded in Tonga. Paid workers were 13,977 men and 9,721 women, while unemployment rate was at 33% for men and 33.3%
for women. In addition a report from Tonga Police showed from 2000-09, 2,753 women had been physically abused.
2. Curb Violence against Women41
67. Tonga continues to be committed to eliminating violence against women.
68. The Family Protection Act 2013 was passed by the Legislative Assembly on 4 September 2013. It was then proclaimed into force on 1 July 2014. The Act is to provide for greater protection from domestic violence, to introduce protection orders, clarify duties of the police and promote the health, safety and well-being of victims of domestic violence and related matters.42
69. The Family Protection Act 2013 is the first Act in Tonga to state that domestic violence is an offence. It defines domestic violence to include a person who threatens, intimidates or assaults a health practitioner or social service provider who is acting in pursuance of a duty of care.43
70. The Women Division of the Ministry of Internal Affairs went through extensive consultations (including public and media consultations, television and radio programs) to ensure the public understands the concepts of the new Family Protection Act 2013.
71. The main mandate of the Women’s Division is to monitor and ensure the effective implementation of the Family Protection Act 2013.
72. The Attorney General’s Office has specific legal counsels who deal with domestic violence cases. The Office continues to work closely with the Domestic Violence Unit of the Tonga Police and meet regularly to ensure that domestic violence cases are prosecuted.
73. The Ministry of Justice continues to have on-going projects with Australian Government (DFAT) (Families Free of Violence), SPC/RRRT (Guidelines for Magistrates, Community Legal Centre) and Pacific Judicial Strengthening Initiative –PJSI- (Judicial training and strengthening relevant data collection capacities) on how to eliminate violence against women in Tonga.
74. In 2016 the Evidence (Amendment) Bill 2016 was introduced to Parliament to remove the requirement for corroboration of evidence in sexual offences. This Amendment was a result of the case Rex v Koloamatangi CR 106/13 where the trial judge Cato J expressed concerns over the uncertainty whether corroboration was required in sexual complaints in Tonga. He stated there was no certain statutory requirement for corroboration in the Tongan Evidence Act in cases of sexual complaints.
75. The Evidence (Amendment) Bill 2016 was introduced but it was not passed by Parliament. Tonga still needs time to fully grasp the need to remove corroboration evidence in cases of sexual offences.44
76. Marital Rape is criminalized in the Criminal Offences Act [Cap 18] after the repeal of s.118(2) in 1999.
77. Tonga official launched the Unite Campaign Orange Day on the 25 June 2014. This was to show a united front in Tonga to end violence against women. It was supported by the Government, Civil Society, Non-Government Organisations and development partners like UNDP and Australian Aid.45
78. Tonga Police continue to host a program to mark White Ribbon Day to end violence against women. The White Ribbon campaign in Tonga reminds the Tonga Police that they have a major role in ending violence against women by responding to cases of abuse and also showing the community that violence against women is unacceptable.46
79. Tonga launched an International Women’s Day Media Workshop which was held on 12 April 2013.
3. Enact laws to protect women in employment free from any form of discrimination47
3. Enact laws to protect women in employment free from any form of discrimination47