parties' ken.
- 11
29.
There are, in fact, two separate points which require
greater examination:
(a) Whether the Crown Lands Resumption Ordinance
(b)
(empowering the Crown to take land away from
the inhabitants of the New Territories)
conflicts with the obligations in the 1898
Convention; and
Whether the Crown has acted contrary to the
provisions of the Convention.
30.
We make this distinction for this reason. If the
answer to (a) above is Yes, it is arguable that the Ordinance
is ultra vires and ought to be declared to be invalid by the
High Court. This is because Article XXVI 6 of the Royal
Instructions states that the Governor shall not, except in
the circumstances mentioned in the concluding paragraph of
Article XXVI, assent to any Bill the provisions of which shall
appear inconsistent with obligations imposed upon Her Majesty
the Queen by Treaty.
31.
However, if all that can be said is that the Government
has acted in breach of the provisions of a treaty, then one is
caught by the principle that the Crown, in performing a treaty,
is exercising sovereign power and its acts cannot be examined
in the Courts: see Rustomjee -v- The Queen (1876) 2 QBD 69 which
dealt with the 1842 Treaty under which Hong Kong was ceded in
perpetuity where Coleridge CJ said:
"It is a treaty between [The Queen] as sovereign