Protection of Youth Offenders' Rights in Tonga's legal system
“Our children are our future!” is profoundly accurate in every possible way. Our children are our most precious jewel as we say in Tonga, our mata’ikoloa[i]. They are the future of our very being! Some of these children find themselves sometimes, unfortunately, tangled in our legal system. This issue has been constantly debated at international, regional and national arena. It is also wise to say that each country has its own ways of dealing with this issue. The Kingdom of Tonga is no exception. Tonga has neither the legal framework nor the resources needed to cater for a child-specific justice system. This article is hoping to address some of limitations in Tonga’s legal framework in addressing the issue in protecting youth offenders’ rights in Tonga’s legal system. The words ‘child’, ‘youth’ and juvenile will be used interchangeably in this article and they both refer to children/adolescents who are 17 years old and under.
At the international platform, children’s rights have been advocated for protection in many international instruments since early 1900s including the 1924 Geneva Declaration of the Rights of the Child, Declaration of the Rights of the Child adopted by the General Assembly in 1959 and was recognised in the Universal Declaration of Human Rights, articles 23 and 24 of the International Covenant on Civil and Political Rights, article 10, of the International Covenant on Economic, Social and Cultural Rights, Declaration on Social and Legal Principles regarding the Protection and Welfare of Children, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) and most importantly, the Convention on the Rights of the Child. These instruments and countless discussions at the international level, have been significantly influence many country’s legal and social framework for protecting of a child’s right.
Tonga’s 149 year old written Constitution provides for some fundamental human rights in general but nothing specific for a child’s right. In fact, there is no comprehensive piece of legislation in Tonga that focuses in addressing the right of a child despite Tonga’s accession to the Convention of the Right of the Child (CRC) for 29 years now.[ii] It is also worth noting that CRC does not take precedence over the national legislation of Tonga. International instruments must be domesticated for it to become law in Tonga. However there are various pieces of legislation that addresses children’s rights on other matters such as right to school[iii], right to be protected from a domestic violence situation[iv], right for Tongan male subject to register land[v] and so forth.
The National Youth Policy & Strategic Plan of Action 2021 – 2025 launched in 2021 identify various youth related issues with a vision to promote “healthy, productive, fruitful and happy lives for all youths in Tonga by 2025.”[vi] The Policy’s purpose is to set priorities for government and youth stakeholders to support youth in their development and growth[vii]. However this Policy is more general and lack narrative on how the Tongan Government, and relevant stakeholders, may address the pressing issue of Tonga having neither a child-specific justice system nor a juvenile detention centres for youths. A more focused and comprehensive children protection policy is now with the Cabinet, the executive arm of the Tonga Government, since the middle of last year for their approval. This Policy is known as “Mata’ikoloa ‘a Tonga – Child Protection Policy” and one of the issues it addresses is the issue of how the Government should deal with Youth Offenders in the legal system. This Policy is yet to be officially endorsed by the Cabinet for it to become binding.
Whilst the 2023 Child Protection Policy is yet to be endorsed and utilised, the Tonga Justice Sector Support Project (TJSSP) funded and has been worked together with the Ministry of Justice in drafting the Tonga Youth Justice Bill 2023. This Bill is a milestone towards Tonga’s mandate in its 2021 Youth Policy in advocating for a more active and accountable government. One of the purposes of this Bill is to establish the youth justice system for Tonga amongst other youth offenders’ related issues. This Bill is yet to be submitted to the Legislative Assembly of Tonga for deliberation, hopefully it will be debated in Parliament at the beginning of this year’s Parliament sitting. As a judicial officer who has been dealing with youth offenders on a daily basis, this Bill is pivotal in promoting the youth offenders’ rights and protection the youth offenders against the reality of Tonga’s legal system.
In its attempt to harmonise the non-existence of a child-specific justice system, an unofficial Youth Court has been established in 2008 as one of the jurisdiction with the Magistrate’s Court of Tonga. This ‘unofficial’ Youth Court deals with the young offenders who are not yet 18 years old. For the year 2022, a total of 99 youth cases and for the year 2023 and a total of 116 youth cases throughout the whole of Tonga[viii]. These offences are mostly minor offences such as found drunk in a public places, fight in public places, causing disturbance in public places and other minor offences. It is one of the major concerns from a judiciary point of view of the fact that Tonga still lacks the child-specific justice system and juvenile detention centres. Despite the CRC not being domesticated in Tonga the judiciary has through some of its judgments, such in the cases of R v Vola[ix], Tone v Police[x], Fa’aoso v Paongo & Ors[xi], have adopted principles and articles from the CRC. The Supreme Court judge directed the law enforcements and judiciary of how they should be bound by the terms of CRC in treating youth offenders. That youth offenders should not be treated the same as adult offenders. In these cases also, the Supreme Court judges obviously hinted a departure from the traditional Tongan courts to apply international human rights standards.
Following the judgments of the Supreme Court of Tonga in the three cases above, all courts in Tonga have adopted a more standardised and more human-right focused way of treating youth offenders. Youth offenders are being treated with special care when they are arrested and interviewed at the police station[xii]. There must always be a guardian or parent of the youth offender present; when the police either question or do police work on the youth offender. When in court, the youth court is in-camera and they must attend with either their parent or guardian. The parent and guardian are at most times given a chance to actively participate in discussing of why the youth had done what he had done. In order to avoid sending youth offenders to Tonga’s adult oriented jail, as there is no juvenile detention centre, judges and Magistrates do their best to keep the youth offender out of prison with alternate penalty, if need be or discharge them without conviction under section 204 of the Tonga’s Criminal Offences Act.
In addition to the special treatment of youth offender in the Tonga legal system, the Youth Diversion Scheme (YDS) was piloting in 2023 under the supervision of the Probation Division, Ministry of Justice. Youth offenders, who were under 18 years old, charge with minor offence, a first time offender was eligible to join this program. YDS had reported to be successful. The author believes that YDS is a great way to which youth charged with a minor offence should be diverted to as an opportunity for him/her to take accountability for what he/she had done. At the same time eliminate any chance for such youth to go through the formal legal system which may result in the youth having a police record that will surely be detriment in the future.
The author believes that every country has its own way of dealing with its youth offenders depending on the available resource to such country. It is a fact that Tonga is not as active as other countries in the world, in relation to building a more resilient legal system and detention centres for the youth offenders, but Tonga is doing its best. In reality, Tonga’s mindset and treatment of youth offenders in the legal system is extremely different from what it was 10 years ago, despite not having a child-specific legal framework and youth offenders focused resources. In reality, the practice of the law enforcement stakeholders and the judiciary does really help on moving towards the international standards of human rights. As such, despite the slow progress in establishing a more human rights friendly environment for the youth offenders, Tonga is doing its best.
[i] English translation – “most precious stone”
[ii] Tonga acceded to the CRC on 6 November 1995.
[iii] Section 98, Education Act [CAP.13.01]
[iv] Family Protection Act [CAP. 6.02]
[v] Clause 113, Act of the Constitution of Tonga [CAP.1.01]
[vi] Ministry of Internal Affairs, National Youth Policy & Strategic Plan of Action 2021 – 2025, pg 14 accessed on https://hrsd.spc.int/sites/default/files/2021-09/Tonga_National_Youth_Policy%26Strategic_Plan_of_Action_2021-2025.pdf
[vii] Ibid
[viii] These statistics are extracted from the Tonga Electronic Case (TeC), an electronic case management system implemented last year and is currently using by the judicial officers and court staffs.
[ix] [2005] TOSC 31; CR 065 2005 (10 November 2005). Available at:. http://www.paclii.org/to/cases/TOSC/2005/31.html.
[x] [2004] TOSC 36; AM 022 025 2004 (28 June 2004). Available at:
http://www.paclii.org/to/cases/TOSC/2004/36.html.
[xi] [2006] TOSC 37. Available at: http://www.crinarchive.org/Law/instrument.asp?InstID=1493.
[xii] Conversation with Insp. ‘One’one, OIC Prosecution Division, Central Police Station, 5 December 2023