The functions of these Commissions including the Police Commission are set out

The functions of these commissions including the

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The functions of these Commissions (including the Police Commission) are set out in Article 144 (1) which reads as follows:— "Subject to the provisions of any existing law and to the provisions of this Constitution, it shall be the duty of a Commission to which this Part applies to appoint, confirm, emplace on the permanent or pensionable establishment, promote, transfer and exercise disciplinary control over members of the service or services to which its jurisdiction extends", Although the word "power" does not occur in that Article it is clear from the use of the words "duty" and "jurisdiction" that, read with Articles 138, 139, 140 and 141 it would in the absence of any limiting words give the various Commissions set up by these Articles power to appoint members of the services over which they have jurisdiction. But there are limiting words. The Article commences with the words "subject to the provisions of any existing law and to the provisions of this Constitution". In my view, as a matter of construction these words limit the powers of the Commission and do not merely mean that these powers are to be exercised in accordance with any procedural requirements of the existing laws or of the Constitution. As was said by Lord Simonds in the case of Smith v London Transport Executive [1951] AC 555 565 [1951] 1 All ER 667 the words "are apt to enact that the powers thereafter given are subject to restrictions or limitations to be found elsewhere". Later (at p. 569) His Lordship said:— "The words 'subject to the provisions of this Act' … are naturally words of restriction. They assume an authority immediately given and give a warning that elsewhere a limitation upon that authority will be found".
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Page 7 of 25 GOVERNMENT OF THE FEDERATION OF MALAYA v SURINDER SINGH KANDA Here, then, the limitations upon the powers of the Commissions in general and of the Police Service Commission m particular are to be looked for in two places, in the Constitution itself and in the "existing laws". As far as the Constitution is Concerned there is no difficulty. Though it is no doubt true, at any rate in a popular sense, that the services [*126] enumerated in Article 132 include all the functionaries of Government who could reasonably be regarded as public servants, it is clear, from the provisions of the Constitution itself, that all those functionaries are not to be appointed by one or other of the Commissions. In addition to the special provisions as to the appointment of Judges and the Auditor-General and certain other functionaries, there is Article 144 (3) which provides that His Majesty may designate certain senior posts as special posts and that when he does so appointments to such posts are not to be made by the appropriate Commission but are to be made by His Majesty himself on the recommendation of that Commission and Article 144(4) which contains similar provisions as to similar posts in the services of the States.
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