Questions raised about judicial corporal punishment – Fangupo v Rex; Fa’aoa v Rex [2010] TOCA 17; AC 34 of 2009; AC 36 of 2009 (14 7 2010)

In 2010, the Appeal Court overturned sentences of judicial whipping that had been imposed on two 17 year olds,^[1] stating that in light of international convention and decisions of the court “it might be argued” that the provisions for whipping are now unconstitutional. The judgment also questioned the doctor’s role in certifying an offender fit for whipping. The Court stated:

We think it appropriate to make some observations regarding this sentence [of whipping]. The attitude of the courts in many countries has, over the last 20 years, changed in relation to sentences involving corporal punishment. A number of countries have adopted or amended constitutions to prohibit cruel and unusual punishment. Tonga has not amended its constitution. Interpreted in the light of international conventions and decisions of this Court such as Tu’itavake v Porter [1989] Tonga LR 14 it might be argued that the whipping provision is now unconstitutional. The decision of this court referred to above, sets the following principles for the interpretation of the Constitution:

1. Pay proper attention to the words actually used in context;

2. Avoid doing so literally or rigidly;

3. Look also at the whole constitution;

4. Consider further the background circumstances when the Constitution was granted in 1875;

5. Bear in mind established principles of international law;

6. Finally, be flexible to allow for changing circumstances;

“Without going into great detail we make reference to the International Convention against Torture and other Cruel Inhumane or Degrading Treatment or Punishment as being particularly apposite. In this connection we note the judgment of the Chief Justice in Tavake v Kingdom of Tonga [2008] TOSC 14 at para 52 to the effect that most international jurists now accept that the prohibition against torture is part of customary international law and is a jus cogens rule from which states cannot derogate whether or not they are a party to the various treaties which prohibit it. Additionally a purposive interpretation of clauses 1 and 14 of the Constitution may lead to the conclusion that the whipping provision is unconstitutional.

“There are other matters of concern. Section 31 (6) of the Criminal Offences Act provides that a sentence of whipping must not be carried out unless the offender has been examined by a doctor or a government medical assistant and certified by him that there is no mental or physical impairment of the offender such as to render him unfit to undergo such punishment. It is arguable that for a doctor to provide such certification would be contrary to various Medical Association declarations and codes and principles of medical ethics which taken together would appear to prevent a doctor from participating in the infliction of a whipping sentence. We note too that various human rights bodies such as the Human Rights Committee appointed by the UN, the Inter-American Court of Human Rights and the European Court of Human Rights have all described whipping or flogging as cruel inhumane and degrading. This view is increasingly becoming accepted by countries around the world and has led to the constitutional changes earlier referred to. Because it was not necessary for these issues to be argued before us we do not express any decided view on these matters.”

Subsequent law reform

The Prisons Act 2010 explicitly prohibits corporal punishment of prisoners. In the same year, a private members bill to abolish judicial whipping was under discussion, but this was not enacted. In 2013, the Government accepted a recommendation made at the Universal Periodic Review of Tonga to abolish laws authorising judicial whipping of children, but subsequently the Government announced its decision to retain judicial whipping as a deterrent.