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76.
In para. 65 above, we drew attention to the Special Reference
No. 1 of 1955, where it was the executive branch of government which
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proclaimed that laws were retrospectively valid and enforceable, and the
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role of the judiciary was simply to condone the actions of the executive.
See page 34 of Manitoba Language case. Here, the Executive Order was a
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failed attempt to comply with Article 30, and section 33 was a failed
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attempt to comply with Article 39. We see no difference in principle
between a failed attempt by the executive or the legislature to comply with
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the Basic Law. Both are unconstitutional. The Order has the same effect
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on section 33 as it has on the Executive Order. It gives colour to the
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legality of actions taken under section 33 and the Executive Order. Insofar
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as a refusal to make the Order has the same direful consequences, we are
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of the view that there is jurisdiction to make the Order in respect of the
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Executive Order.
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77.
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The judge also found support in decisions by the Strasbourg
Court. He referred to Walden v Liechtenstein (Application No. 33916/96,
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16 March 2000, unreported), where the court recognised that the temporary
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preservation of a law by the domestic courts of Liechtenstein, even though
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it violated the rights of the applicant, served the legitimate aim of
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maintaining legal certainty.
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78.
Mr Dykes accepted that legal certainty is an aspect of the
maintenance of law and order, and hence the rule of law.
79.
The judge concluded at para. 167 that:
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