Visions & Voices

Judicial Appointments in Tonga and Laws Governing Same-Sex Relations in Pacific Island Countries 

,  ,  ,  , 
Jennifer Corrin

Jennifer Corrin is professor emerita at the Centre for Public, International, and Comparative Law at the University of Queensland, Australia. 

Download PDF

The views expressed in this publication are those of the author(s) and do not necessarily reflect the policies or positions of the Pacific Islands Development Program or the East-West Center.

Share or republish this article.

Featured photo courtesy of rawpixel.com

The recent controversy about the appointment of Malcolm Bishop KC, an openly gay British barrister, to the position of Lord Chief Justice of Tonga and Lord President of the Land Court has placed the spotlight on the laws governing same-sex relations in Pacific Island countries. This article outlines briefly the process of selection of judges in Tonga and the current objections to this appointment. It then examines the current laws on same-sex relations in Tonga and other Pacific Island countries.

Since 2010, appointment to the judiciary in Tonga has been based on the recommendation of the Judicial Appointments and Discipline Panel, but with the final decision remaining in the hands of the King, acting on the advice of the Privy Council.1 This includes appointment of the Lord Chief Justice, who is the professional Head of the judiciary, and of the Lord President of the Land Court. It appears that the current Lord Chief Justice was appointed in this way, and he took up his position on September 1, 2024. A few days later, Radio New Zealand reported that a petition was circulating in Tonga, calling on the King to revoke the appointment.2 The right to petition the King is a constitutionally enshrined right applying to all.3 In this case, the petition was reportedly initiated by a group of lawyers, but not endorsed by the Tonga Law Society. The objection to the appointment was based on the allegation that the new Lord Chief Justice’s ‘lifestyle conflicts with the law of Tonga’.4

In Tonga, same-sex sexual relations are still criminalized.5 The offense extends to acts performed in private between consenting adults. Despite this, the Criminal Offences Act places ‘sodomy’ in the Part dealing with offenses against the person, rather than that which deals with offenses against morality. It also places the offense in a section that deals with bestiality stating: “Whoever shall be convicted of the crime of sodomy with another person or bestiality with any animal shall be liable at the discretion of the Court to be imprisoned for any period not exceeding 10 years.”

The Radio New Zealand report cites a lawyer as stating that the offense of sodomy has only ever been used in cases involving minors.6 A survey of case law published during the last five years confirms that there were no prosecutions for sexual acts between adult males. It also reveals, in addition to several cases involving offenses against minors, three cases of sodomy by a male committed against an adult female.7 These crimes might be better described as anal rape, but no such crime exists in Tonga.8

Tonga is not the only Pacific Island country where same-sex sexual activity is against the law. Similar legislation exists in the Cook Islands,9 Kiribati,10 Papua New Guinea,11 Samoa,12 Solomon Islands,13 and Tuvalu.14 As in Tonga, these laws apply not only to public acts or those where an element of compulsion exists, but also to acts taking place in private between consenting adults. Samoa has an additional criminal offense of keeping a place of resort for the purpose of ‘indecent acts’ between males.15

In Vanuatu, ‘homosexual acts’ are only illegal if either party is under 18.16 The term ‘homosexual acts’ is not defined. As the separate offense of gross indecency expressly applies only to behavior in public,17 arguably homosexual acts in private are encompassed by the provision. The disapprobation of such behavior is evident in the fact that the age of consent for girls engaging in heterosexual sexual activity is fifteen. However, the penalty is less than in the countries referred to above, being imprisonment for up to two years.18

In other countries, the penalties for the offense of ‘sodomy’ are more severe. The harshest penalty open to a sentencing court is in Tonga, where the Court may, in lieu of or in addition to a sentence of imprisonment, order the convicted person to be whipped.19 In other countries, such as Kiribati, Papua New Guinea, Solomon Islands, and Tuvalu, ‘sodomy’ with a person of either sex, whether in private or public, is punishable by imprisonment for up to fourteen years.20

In Fiji, same-sex relationships were criminalized until 2009.21 However, in 2005, the High Court of Fiji overturned prison sentences of two years imposed for engaging in consensual homosexual acts.22 The court held that in so far as the Penal Code outlawed ‘carnal knowledge against the order of nature’ occurring in private, it contravened the constitutionally enshrined right to privacy.23 Further, as the offence of gross indecency applied only to males, it was also contrary to the constitutional right to equality before the law. In 2009, the Crimes Decree of Fiji repealed the Penal Code.24 Sexual offenses are now limited to rape, sexual assaults, indecent assault and abduction of a minor with the intent to have carnal knowledge, defilement of children or intellectually impaired persons, unnatural offences with animals, incest, and various associated offenses such as attempts and procurement.25

It would not be open to the courts of Tonga to follow a similar course to the High Court of Fiji, as constitutionally protected rights in Tonga do not include the right to privacy, and the right to equality extends only to guaranteeing one law for all classes.26

In Pacific Islands, the influence of Christian church groups is strong. The values that they promote are, generally, conservative and homophobic. This is reflected in many Pacific marriage acts, which restrict marriage to unions between one man and one woman.27 Whilst such words do not appear in the Marriage Act of Tonga,28 they are enshrined in the English common law,29 which is part of the law of Tonga.30 In this environment, the prospect for legalizing sexual relations between same-sex partners, even in the case of consenting adults in private, appears slim.

References

  1. Constitution of Tonga (Amendment) (No 3) Act 2010, s 6, inserting cl 83C in the Constitution of Tonga Cap 1.01.
  2. Caleb Fotheringham, Tongan Lawyers Calling for Removal of Gay Chief Justice Say ‘His Lifestyle Conflicts with the Law’. Radio New Zealand: Pacific (September 10, 2024, at 4.34pm NZST), https://www.rnz.co.nz/international/pacific-news/527597/tongan-lawyers-calling-for-removal-of-gay-chief-justice-say-his-lifestyle-conflicts-with-the-law.
  3. Constitution of Tonga Cap 1.01, Cl. 8.
  4. Id.
  5. Criminal Offences Act Cap 4.04 (Tonga), ss 136, 137.
  6. Caleb Fotheringham, Tongan Lawyers Calling for Removal of Gay Chief Justice Say ‘his lifestyle conflicts with the Law’. Radio New Zealand: Pacific (September 10, 2024, at 4.34pm NZST), https://www.rnz.co.nz/international/pacific-news/527597/tongan-lawyers-calling-for-removal-of-gay-chief-justice-say-his-lifestyle-conflicts-with-the-law.
  7. R v Valele (Supreme Court of Tonga, Cato J, 13 February 2019); R v Haupeakui (Supreme Court of Tonga, Whitten LCJ, 14 September 2020); Maamaloa v R (Court of Appeal of Tonga, Harrison, Heath, Dalton JJA, 5 October 2023).
  8. See Rex v Tupou (Supreme Court of Tonga, Dalgety, J, 11 August 1992).
  9. Crimes Act 1969, ss 154 and 155.
  10. Penal Code Cap 67 (Kiribati), ss 153-155.
  11. Criminal Code Cap 262 (Papua New Guinea), ss 210 and 212.
  12. Crimes Act 2013 (Samoa), ss 67, 68.
  13. Penal Code Cap 62 (Solomon Islands), ss 161 and 162.
  14. Penal Code Cap 10.20 (Tuvalu), ss 153 to 155.
  15. Crimes Act 2013 (Samoa), s 71.
  16. Penal Code Cap 135 (Vanuatu), s 99.
  17. Penal Code Cap 135 (Vanuatu), s 100.
  18. Penal Code Cap 135 (Vanuatu), s 99.
  19. Criminal Offences Act Cap 4.04 (Tonga), s 142.
  20. Penal Code Cap 67, s 153 (Kiribati); Criminal Code 1974 (PNG), s 210; Penal Code Cap 26 (Solomon Islands), ss 160 to 162; Penal Code Cap 10.20 (Tuvalu), s 153.
  21. Penal Code Cap 17 (Fiji), ss 175–177.
  22. The maximum penalty was fourteen years with or without corporal punishment (s 175).
  23. McCoskar v The State (High Court of Fiji, Winter J, 26 August 2005).
  24. Crimes Act 2009 (Fiji), s 391.
  25. Crimes Act 2009 (Fiji), Chapter 3 Part 12B.
  26. Constitution of Tonga Cap 1.01, cl 4.
  27. .See e.g. Marriage Act 1968 (Fiji), s 13; Births Deaths and Marriages Registration Act 2017 (Nauru), s 3.
  28. Births, Deaths and Marriages Registration Act Cap 6.01 (Tonga); Solemnization of Marriage Regulations 1980 (Tonga).
  29. Hyde v Hyde (1886) LR 1 P&D 130.
  30. Civil Law Act Cap 5.01, s 3.