TNAG-2218-FCO40-3186-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 83

22-APR-1991 17:37

CONSTITUTIONAL AFFAIRS BR

852 840 1976

P.09

28

!

American Rep. 40).

Although Butler, C.J

started nis

Case (supra),

analysis of cases with the Abbot of Fountains Richmonu, J. placed more reliance on Bagot's case y 2.IV 1. & 9.

When Edward IV acceded co the thxone, the turee

This preceding Lancastriana kings were declared usurpers. raised questions as to the validity of acts uone by them

An act was and by their appointees, including judyes. therefore passed in the first year of the reign of Edward IV which declared valid judicial and other acts and

Henry court held in the times of Henry IV, processes in any V and Henry VI (described as. lately kinyo de facto suu 19:

the This act also contizmea de jure").

commissions of the The acc was judges' appointed by these three kings. declaratory and in Bagot'8 case, both parties and the court treated the act as merely affirming the common law. the coupts of Sir Jocelyn Simon

"

·

111 Adams V

•

Adams,

(See infra.)

Richmona, J. quoted Buller, J. in Milward v.

Thatcher ¿ TR 1, a7 who Bays;

Or

•

t

"The cases cited are cases of writs of arror brought in civil actions and the objection was taken to the competency of

but in such case the the judge below; question whether they be properly juuyes

it is not can never De determined; sufficient if they be judges. de facto. Suppose a person was even criminally convicted in a Court of Record, and the Recorder of such court were not duly,, electea, the conviction was still be: good in law, ne being the Judge de facto.

*

"

This citation is of interest when I come to consider R. v. Cronin (1940) 1 AER 618, a case heavily. relied upon by Mr. Keane,

A

It.

It is important to note that in Aldridge, the court proceeded on the basis that the office to which the judge had been purportedly appointed did in fact exist. was said that because there was already a full complement of four Supreme Court judges, no vacancy existed. distinction appears to exist between improper appointments due to lacz of oath, no vacancy or appointment by the wrong

the one hand, and cases, person on

on the other, where person is purportedly appointed to a

appointed to a non-existent post. "this instance there may pe no scope for the de

pe

theory.

theory.

¿

are Usurpers

clearly not to

In

facto assisted by such

a

bo'd 0.90 698 758

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