GOVERNMENT OF THE FEDERATION OF MALAYA v SURINDER SINGH KANDA difficulty is

Government of the federation of malaya v surinder

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GOVERNMENT OF THE FEDERATION OF MALAYA v SURINDER SINGH KANDA difficulty is overcome. Although I am certain in my own mind as to the construction to be placed upon the definition of existing law as opposed to Federal or State law one can still in my opinion include amendments, variations and modifications to existing law after Merdeka and still constitutionally reach the impossible situation if one gives to the words, "subject to," the interpretation claimed by the Attorney-General. In this connection one should consider the fact that it is not under the Constitution every piece of legislation of Parliament which can amend the Constitution. And, again, it is not, with respect, His Majesty the Yang di-Pertuan Agong or the Courts of this country that can amend the Constitution. When one considers that then I think one is placed in the position of saying that if the meaning for the words, "subject to," claimed by the Attorney-General is the correct one the action or rather the lack of action by His Majesty or by a bare majority of Parliament could continue the powers of the Commissioner of Police to the exclusion of the body which the Constitution has said shall have jurisdiction over all members of the service. I have not overlooked that part of the Attorney-General's submission in which he endeavours to deal with this aspect when at page 4, paragraph 14, he says that the Police Service Commission would be left with the powers of appointment and discipline in respect of gazetted police officers. For myself I am unable to accept this submission. Section 8(1) of the Police Ordinance No. 14 of 1952 provides that gazetted police officers shall be appointed in the same manner as other public officers of corresponding status in the service of the Government of the Federation and shall be subject to the same disciplinary provisions. The Attorney-General suggests that the application of the Constitution to that section will mean that they come directly under the power of the Police Service Commission. With that submission I am unable to agree. If his interpretation of the words, "subject to," be correct then gazetted police officers are appointed by the pre-merdeka tribunal of the Civil Service Appointments and Promotions Board; or if the wider meaning be given to the term, "existing law," then they will come under the jurisdiction of the Public Services Commission under Article 139. There is nothing in the Constitution which applied to section 8(1) as would make necessary any modification of section 8(1) although it would be open to the Yang di- Pertuan Agong under his powers of expediency to have modified section 8(1) to provide for the Police Service Commission having the power as at the relevant dates. As far as we are concerned there was no modification of Section 8(1) of the Police Ordinance. I doubt myself whether this method of interpretation is permissible but even if it is permissible then it is clear that given the interpretation put forward by the Attorney-General the Police Service
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