The death penalty in Papua New Guinea and Tonga: human rights mechanisms and international expectations

The death penalty in Papua New Guinea and Tonga: human rights mechanisms and international expectations

Ffion Gorman & Matthew Goldberg | 14 June 2021

In November 2021, Papua New Guinea (PNG) is scheduled to participate in an evaluation of its human rights record, to be conducted by the Universal Period Review (UPR) Working Group. The UN Human Rights Council’s system of peer review is a cooperative mechanism intended to objectively and reliably encourage each State to fulfill its human rights obligations and commitments ‘in a manner which ensures universality of coverage and equal treatment with respect to all States’. Eleos Justice, in partnership with the World Coalition Against the Death Penalty, submitted a stakeholder report, in advance of the November session, in order to call attention to the legal status of the death penalty in PNG, promote conditions for domestic reform, and to explore strategies through which the abolition of capital punishment may be completely realised in the region.

Relevantly, Eleos Justice and the Capital Punishment Justice Project (CPJP) were fortunate to host Dr Daniel Pascoe, Associate Professor of Law (City University of Hong Kong), at our most recent Conversation Series event. Dr Pascoe has embarked upon an evaluation of the death penalty in South Pacific nations; he drew upon PNG and Tonga’s status as ‘death penalty holdouts’ in order to instigate discussion concerning the strategic and methodological framework through which a progression from retentionist to abolitionist status takes places.

PNG’s approach to the death penalty has been somewhat circuitous, having previously abolished the death penalty during the final period of Australian administration in 1970, only to subsequently reinstate the death penalty in 1991. It was of great concern to the anti-death penalty movement when the scope of the death penalty was further expanded as a consequence of the passage of amendments to the Criminal Code in 2013. PNG’s Constitution does provide for the right to life but presently allows for an exception ‘in execution of a sentence of a court following…conviction of an offence for which the penalty of death is prescribed by law’. Importantly, PNG has not actually resorted to fulfilling any sentencing order for execution since 1954 and, in that respect, may be characterised as having long sustained a de facto moratorium on capital punishment. Given that almost all neighbouring jurisdictions in the Pacific Islands have proactively abolished the death penalty at law, what has delayed the reform movement in PNG? Will a comparative analysis with Tonga, the only other remaining retentionist nation in the South Pacific, yield meaningful insights?

It’s almost forty years since the death penalty was actually carried out in Tonga, the last execution took place in 1982. Whereas PNG has continued to intermittently impose death sentences, Amnesty International and Human Rights Watch findings indicate that approximately 20 people are currently on death row in PNG, there have been no sentences of death recorded in Tonga after 1982. Dr Pascoe describes the death penalty within Tonga as currently sitting ‘entirely dormant’ in such circumstances. Drawing upon factors that may come to constitute ‘correlative’ or ‘causative’ guidance, it was noted that Tonga’s monarchical structure has been central to retention of the death penalty. Arguably, sustaining the death penalty at law in Tonga has played a role in ‘perpetuating royal authority’. Perhaps the shift in executive power within Tonga, trending towards a process of representative democracy since powers were transferred from the monarch by constitutional amendment in 2010, will bring the abolition of the death penalty at law nearer to fruition. Of course, the death penalty in PNG can’t be similarly portrayed as a relic of monarchical rule.

In Dr Pascoe’s view, strategies and prospects for abolition within the two jurisdictions are markedly different. Tonga would appear to be nearest to reform and a dialogue with abolitionist Samoa, given their similar monarchical history, may be productive. PNG is depicted as a tougher proposition, largely attributable to the ‘long running law and order crisis’ that could put the de facto moratorium at risk. At its last UPR session, in May 2016, PNG failed to adopt recommendations to establish an official moratorium on executions with a view to eventually abolishing the death penalty; to repeal all provisions allowing for capital punishment under its domestic law; and to ratify the Second Optional Protocol to the ICCPR. PNG’s engagement with the UN General Assembly’s Resolution calling for a Moratorium on the Death Penalty, a reference point for the anti-death penalty movement arising every two years, also reflects a generally retentionist stance; having twice abstained and otherwise opposed adoption of the resolution.

In that context, it’s reasonable to observe that the death penalty continues to enjoy the government’s support within PNG. It remains a pillar of their ‘tough on crime’ approach, particularly in light of an ‘inadequate police presence’. In fact, a lack of infrastructure to carry out executions has been cited as the cause of delay for those on death row rather than a trend towards abolition. Dr Pascoe’s pragmatic recommendation for abolitionist states, including Australia, to lend tangible support to measures that will reduce PNG’s crime rate is understandable, if potentially in tension with criticism of the purported relationship between the death penalty and deterrence. In February 2020 it was reported that the Constitutional and Law Reform Commission would conduct a ‘nationwide consultation’ to assess public attitudes to the death penalty however it’s not apparent that the survey took place and, in any event, legislative reform in this arena isn’t contingent upon a referendum of any kind.

The pathway to abolition of the death penalty in PNG may well be obscured by the socio-political environment but that’s not to disregard the remarkably longstanding de facto moratorium conditions and the region’s predominantly abolitionist status. Dr Pascoe suggests that the adoption of abolitionist criteria by the majority of the Pacific Islands may be attributable to the period at which independence was asserted; colonising powers by then having begun to embark upon the abolitionist project themselves. These are certainly matters that warrant further investigation and it was a pleasure to welcome Dr Pascoe’s contributions, these issues being raised in their early form in advance of publication with Dr Andrew Novak (Assistant Professor, George Mason University). Turning to international mechanisms relevant to PNG and Tonga, it was readily agreed that the UPR process is ‘an excellent addition to the tools at the disposal of the international community’.

We should expect that the November session will be utilised productively by the anti-death penalty movement, by those within government and civil society, with an expectation that PNG more directly undertakes to pursue an abolitionist trajectory.

Eleos Justice recognises that local human rights advocates are best equipped to lead and implement the reform agenda in PNG. In collaboration with CPJP and other colleagues throughout the World Coalition Against the Death Penalty, we’re committed to forging sustainable relationships with local organisations, contributing to the development of domestic and regional networks, and acting as a conduit to international forums concerned with abolition of the death penalty.