By R. Renee Yaworsky
Impunity Watch Reporter, Oceania

NUKU’ALOFA, Tonga—Two teenagers in Tonga have been spared a whipping sentence that would have given each six lashes with a rod.  The Court of Appeal overturned the sentence this week on the grounds that it would be considered “cruel and unusual.”

Timote Fangupo and Penisimani Fa’aoa, both now 17, were first imprisoned for crimes they committed when they were 15.  They served time for housebreaking and theft, and escaped from prison three times.

The whipping sentences, accompanied by a 13-year prison term, were set late last year by Justice Shuster, a British Commonwealth High Court Judge who had been appointed to Tonga in 2008.

The whipping punishment had not been used in Tonga in 30 years.  The Appeal Court took modern global trends into account when deciding which course to take in this case.  Their judgment stated that, “interpreted in the light of international conventions and decisions of this Court it might be argued that the whipping provision is now unconstitutional.”

The Appeal Court acknowledged that international attitudes toward corporal punishment had changed over the past 20 years, saying, “A number of countries have adopted or amended constitutions to prohibit cruel and unusual punishment.  Tonga has not amended its constitution.”

The Court cited the UN’s Human Rights Committee, the Inter-American Court of Human Rights, and the European Court of Human Rights, all of which have spoken out against whipping or flogging.

Also noted by the Justices was the controversy concerning whether it is ethical for a physician to certify offenders as being fit for whipping.  The judgment mentioned that medical ethics may “prevent a doctor from participating in the infliction” of such a punishment.

The Court concluded that the whipping punishment would be excessive, and that the sentencing judge had committed error by taking certain prejudicial factors into account: “There had been assaults on prison staff in ‘Eua and the burning of the prison in Tongatapu.  There is no suggestion that either of the appellants had anything at all to do with either of these incidents; indeed, their offending and their imprisonment is on the island of Vava’u.”

Instead of enduring the whipping, the teenage appellants will now serve prison sentences totaling six years.

Tonga’s Human Rights and Democracy Movement congratulated the Appeal Court for overturning the sentence.  The Movement’s  director, Po’oi Pohiva, said, “Such punishment should no longer be seen given the international laws that uphold and promote the dignity of the human person.”

For more information, please see:

Matangi Tonga-Appeal Court overturns “cruel” flogging sentence for 17-year-old prisoners-14 July 2010

Radio New Zealand International-Tonga NGO congratulates Appeal Court on whipping decision-14 July 2010

New Zealand Herald-Tonga stops whipping-14 July 2010