It is intereting to keep on reading the current important issue which is involving the Government and the PASS. I definitely support either side by awarding 99 points each boxer but the one winning point that the samoan are waiting for is from ,judge, the people of samoa. It is a execellent idea to clarify every advantages and disadvantages of this matter through out the country and then let the people vote for it. Whatever results, that is the championship point that all of us are waiting for....The End....Fullstop!

ia se i tuu ia na fusuaga ae fai le mea lelei mo le atunuu,,e le impress se isi i ni upu na o galuega e iloa ai le backbone o le tagata pe iloa se mea pe tumu i mea sese ma le fai mea sese.

I don't know what law school Toleafoa Toailoa went to, but he seems to miss a very basic fact of life in Samoa's legal and political system - the doctrine of parliamentary sovereignty.



We inherited our Westminster system of parliamentary democracy from Britain, by way of New Zealand. Parliament is the supreme law-making authority in the land. It has the power to make and unmake any law it so wishes. The reason why this power is so mighty is because parliament had to fight a civil war between 1642-1651 with Charles 1st over it. Parliament won the war, the King lost his head (literally) and in time, the unelected King came under the effective power of the elected parliament. New Zealand inherited this system and by 1962, so did Samoa. However, in Samoa, parliamentary sovereignty is subject only to the Constitution.



In my humble opinion, there is nothing in the constitution which the proposed RHD law is in breach of. The application by PASS for a declaratory order that the proposed RHD law is unconstitutional for breach of Article 5 (Right not to be deprived of life) is ridiculous. It seems to be suggesting that the responsibility for driving should now be transferred to parliament instead of the driver. In the world of PASS, the driver should be relieved of all responsibility for his/her driving. If we take it to the extreme, what PASS seems to be suggesting is that drivers should not pay attention to the road at all now, because they can just blame their habits of a lifetime. Toleafoa should know that this is no more than a mitigating factor in sentencing. It does not, and will not, ever amount to a full defence.



Anyway, for the RHD law to be unconstitutional under Article 5, there must really be a clear and unbroken link made between the lawful act of driving on the left hand side of the road and the deprivation of someone's life. When drivers drive within the law (and obey all the rules of the road - including watching out for any people coming onto the road), there should not be any deaths resulting. It is only when drivers fall below their legal obligations on the road (Muagututi'a suggested drivers will be arguing and drinking) that accidents will likely occur. Is this the fault of parliament? It certainly is not.



Case law on Article 5 suggests a far more stringent test - the deprivation of life must be directly within the contemplation of the proposed action. The village fono cases highlight that there must be a direct objective by the decision-making body and the person carrying out its orders to deprive someone of his/her life. There is no such objective in the proposed RHD law. I suggest there will be no similar objective by any law-abiding driver to deprive someone of his/her life simply by driving on the lefthand side of the road.



The submission that the government had no political mandate is not legally relevant. Article 43 of the constitution allows parliament to make laws for Samoa. In other words - it has full jurisdiction to pass the RHD law. It is not in any danger of going beyond its jurisdiction. Even if there was no constitution, parliament would still have the power to make this RHD law under the doctrine of parliamentary sovereignty.



As a lawyer, Toleafoa obviously has freedom to speak on this issue and to disagree. However, to suggest (as the PASS application is suggesting) that the unelected judiciary should overturn the power of the elected parliament to make laws is, in my opinion, an undemocratic action.



If you don't like a law, then wait until 2011 and kick out the government. If that is too long to wait, then Toleafoa and his PASS mates should have been out on the streets protesting the constitutional amendment in the 1990s which allowed the term of three years to be extended to five. That was a greater infringement on peoples' constitutional rights (as well as the change of the auditer-general's term of office) than this current proposed RHD law.

JM.

Parliament is the only forum for Toleafoa to debate the PM so find a district and enter parliament. I thought Toleafoa Solomona is a clever lawyer but now I know he's not and I thought PM Tuilaepa was a smart a... but now I know he's no stupid man when he emphacise the contrary when Toailoa asked for a debate.

Good on you PM.

It doesn't matter what school anyone went to but the matter is he did the right thing....the question you should ask ...what law school did the PM went to?...

HAVE A WONDERFUL WEEK SAMOA

You wrote "Parliament is the supreme law-making authority in the land. It has the power to make and unmake any law it so wishes"

I haven't read all the details of our law, but you mean to say that there is no clause in our constitution that can make provision for the people (via a national referendum) to have the final say before a law is passed? If no, don't you think is time to amend the constitution for such a clause to be injected somewhere? If yes, is that not a good argument that the PASS people could use?

Where I am living, all the major decisions are done via national referendum. It's the people with their yes or no that puts the stamp of approval or non-approval on a law that the parliament deliberates on. Doesn't matter how creative the MPs can be, if we say no, then is a no law.