Suffian LP:

[1] Zainal bin Hashim, a police constable ("the plaintiff"), was on December 16, 1971, dismissed by the Chief Police Officer, Selangor, and the learned trial judge ruled ([1975] 1 MLRH 408, [1975] 2 MLJ 262) that he had been wrongfully dismissed, and the Federal Government has appealed to us.

[2] Power to appoint and dismiss PCS is primarily with the Police Force Commission ("PFC"), Article 140 of the Malaysian constitution, but clause (6)(b) of that article allows the PFC to delegate this power to any member of the force. By an instrument of delegation dated August 18, 1971, exhibit D1B, the PFC delegated its power to appoint constables to the Inspector-General of Police and power to dismiss them to a Chief Police Officer among others.

[3] Be it noted that the CPO was not given power to appoint, only power to dismiss.

[4] Tan Sri Mohd Haniff bin Omar, then CPO Selangor, dismissed the plaintiff, and the learned judge held, following the decision of this court in Iznan bin Osman, [1975] 2 MLJ 61 FC that, as the CPO had no power to appoint he had no power to dismiss a constable, that the dismissal was contrary to art 135(1) and that accordingly it was wrongful.

"135(1) No member of [the Police Force] shall be dismissed ... by an authority subordinate to that which, at the time of the dismissal ... has power to appoint a member of that service of equal rank:

Provided that ... [the proviso is irrelevant.]"

[6] Since the decision of the trial judge another proviso has been added to the above article by the Constitution (Amendment) Act, 1976, ("Act A354"), in the following terms:

"And provided further that this Clause shall not apply to a case where a member of any of the services mentioned in this Clause is dismissed ... by an authority in pursuance of a power delegated to it by a Commission to which this Part applies - the PFC is one of them - 'and this proviso shall be deemed to have been an integral part of this Clause as from Merdeka Day [ie 31 August 1957.]"

[7] If this additional proviso applies, then clearly, as the plaintiff was dismissed by an authority in pursuance of power delegated to it by the PFC the dismissal was lawful. Mr Lim on behalf of the Government argued before us that it does apply, but Mr Rajah on behalf of the plaintiff argued that the amendment does not apply to this case.

[8] Thus the issue here is, does the amendment apply to this case?

[9] In Iznan, [1975] 2 MLJ 61 PC too, a constable was dismissed by a CPO who had been delegated power to dismiss but not appoint constables, and it was held by both the trial judge and this court that the dismissal, being contrary to art 135(1), was wrongful. However by the time that case reached the Privy Council (3)the additional proviso to that article had been added by Parliament and there the Government tried to rely on the amendment but were not allowed to do so. Lord Fraser, giving the advice of the Privy Council, observed:

"There is one final matter to which their Lordships must refer. Mr Farquharson sought leave to present an entirely new argument based upon the Constitution (Amendment) Act 1976 (Act A354) which came into force on August 26, 1976. This argument is nowhere stated or even adumbrated in the appellant's printed case, and no formal notice had been given to the respondent's advisors or to the officials of this Board that leave to present the argument would be sought, although a period of more than five months had elapsed since the Amendment Act came into force. Their Lordships were informed by Mr Farquharson, and they of course accept, that informal notice had been given to the respondent's advisors a few days before the hearing but Mr Rajan explained that he personally had first heard of the matter when he arrived in London about three days before the hearing. Mr Rajah objected to the argument being presented without proper notice and without having been formulated in writing.

Their Lordships are of opinion that it w