The International Human Rights Framework on the Right of Peaceful Assembly

Tonga is not a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR), Article 21 of which governs the right of peaceful assembly. 

The right of peaceful assembly is, though, a fundamental human right that is part of the corpus of customary international law. It is also a general principle of law.See Art. 38(1), 1945 Statute of the International Court of Justice.

There is not yet a regional human rights treaty to which Pacific nations can adhere despite discussions going back decades as to the possibility of establishing a regional mechanism.

The Domestic Legal Framework on the Right of Peaceful Assembly

Constitutional Provisions

The 1875 Constitution of the Kingdom of Tonga (as amended through 2016) does not guarantee the right of peaceful assembly. 

National Legislation

Under Section 125(1) of the 2010 Tonga Police Act, a police officer

may direct a person who is in or near a public place to move on if the police officer suspects, on reasonable grounds, that:

(a) the behaviour or presence of the person is:

(i) causing anxiety to a person in the public place;

(ii) interfering with trade or business in the public place; or

(iii) disrupting the peaceable and orderly conduct of any event at the public place; or

(b) the behaviour of the person is disorderly, indecent, offensive, or threatening to a person in the public place.

The police

shall not give a direction that interferes with a person’s right of peaceful assembly unless it is reasonably necessary in the interests of: (a) public safety; (b) public order; or (c) the protection of the rights and freedoms of other persons.

The Legal Framework on Use of Force During Assemblies

The Use of Force

International Legal Rules

Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:

In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.

All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.

National Legislation

The use of force by the Tonga Police is governed by the 2010 Tonga Police Act. Section 100(1) of the Act empowers a police officer to use "reasonable and proportionate force" in the exercise of his or her policing powers.

The Use of Firearms

International Legal Rules

According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life. 

National Legislation

The force that a police officer may use under the 2010 Act

shall not include force that is likely to cause death or grievous bodily harm to a person unless it is necessary to prevent death or serious injury to the police officer or another person.

State Compliance with its Legal Obligations

Views and Concluding Observations of United Nations Treaty Bodies

Tonga is not a state party to the ICCPR.

In the 2017 Universal Periodic Review of Tonga under the UN Human Rights Council, the right of peaceful assembly was not addressed.

Views of Civil Society

According to Freedom House's 2019 report on Tonga:

The constitution protects freedom of assembly, and demonstrations, though rare, generally remain peaceful. Political protests in 2006 degenerated into violent riots, prompting the government to declare a state of emergency that lasted until early 2011. However, there have been no similar incidents in the years since.

Downloads

2010 Tonga Police Act - Download (350 KB)