Rigby J:

In this action the plaintiff claims a declaration that his dismissal from the Federation of Malaya Police Force purported to be effected by one, Mr. WLR Carbonell, the then Commissioner of Police of the Federation of Malaya, on 7 July 1958, was void, inoperative and of no effect and that he is still a member of the said Police Force. He further asks for orders directing that an account be taken of the salary and emoluments due to him as from the date of his allegedly invalid dismissal and the payment to him of the amounts found to be due.

2. The plaintiff bases his claim on two grounds, one a matter of law, and the other of mixed law and fact. First, he contended that, as a matter of law, by virtue of the Federal Constitution which became the supreme law of the Federation of Malaya as from 31 August 1957 the powers of appointment and dismissal of Superior Police Officers were no longer vested in the Commissioner of Police but had become vested in the Police Service Commission. Secondly, he contended that even if the power of dismissal was still vested in the Commissioner of Police his dismissal was invalid in that he was deprived of the fundamental right of being given a reasonable opportunity of being heard before the order of dismissal was made against him. It will be convenient to deal with these two submissions in the order in which they have been raised.

3. The plaintiff joined the Federation of Malaya Police Force on 1 March 1951, as a Probationary Asian Inspector. On 31 August 1951, by a Certificate of Appointment, he was appointed a Superior Police Officer in the rank of Probationary Inspector. On 1 June 1953, he was confirmed in the substantive rank of Police Inspector and placed on the pensionable establishment. On 7 July 1958, for reasons to which I will later have to refer, the then Commissioner of Police ordered his dismissal from the Police Force.

4. Section 9 of the Police Ordinance, 1952, empowered the Commissioner of Police to appoint a Superior Police Officer, and s. 45(1) of the Ordinance, read in conjunction with the First Schedule thereto, empowered him, subject to Police Regulations, to dismiss a Superior Police Officer. It was conceded on behalf of the plaintiff that if in fact those statutory provisions were still operative on 7 July 1958, then the order of dismissal was valid. But it was contended that those provisions had been impliedly repealed by Articles contained in the Federal Constitution and in the following manner.

Part X of the Constitution deals comprehensively with the Public Services and provides for the appointment and constitution of various Service Commissions to deal respectively with the different branches of the Public Services, including the Police Service.

Article 144(1) enacts that:

144.(1)Subject to the provisions of any existing law and to the provisions of this Constitution, it shall be the duty of a Commissioner 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.

Article 144(7) makes it clear that "transfer" within the meaning of Article 144(1) does not include "transfer without change of rank within a department of government".

The argument put forward on behalf of the plaintiff is that by virtue of the provisions of Article 144(1) the powers previously vested in the Commissioner of Police "to appoint, confirm, emplace on the permanent or pensionable establishment, promote, transfer and exercise disciplinary control" have been transferred to the Police Service Commission. Reference is then made to Article 135(1) which provides that:

No member of any of the Services .... shall be dismissed or reduced in rank by an authority subordinate to that which, at the time of the dismissal or reduction, has power to appoint a member of that Service of equal rank.

It is contended that b