When dismissing the application for leave under Article 4 clause (4) of the Federal Constitution, I indicated that I would state my reasons. I now proceed to do so.

The applicant, a Hindu by religion is the Vice-Chairman of the Hindu Sangam, Seberang Perai, Penang. His application is for leave to commence proceedings in the Supreme Court for three declaratory orders and one order for consequential relief. Mr. V. Muthusamy, counsel for the applicant has however withdrawn two of the prayers in the notice of motion leaving only the following two prayers: --

(1) a declaration that the Hindu Endowments Ordinance 1906

[Straits Settlement Cap. 175] is invalid and void;

(2) such further or other relief or consequential relief.

By his affidavit affirmed on August 16, 1985, the applicant averred that the Mohammedan and Hindu Endowments Ordinance 1906 came into force on January 1, 1906. The Ordinance was enacted by the British Colonial Government of the Straits Settlements of Penang and Malacca to administer Mohammedan and Hindu religious and charitable endowments. Insofar as it affects Muslim endowments, the Ordinance was repealed in the State of Penang by the Muslim and Hindu Endowments Ordinance (Repeal) Proclamation 1967 vide Penang Legal Notification No. 4 dated February 23, 1967, and since that date the statute is known only as Hindu Endowments Ordinance. By Article 74(1) and item 15(c) of the Federal List in the Ninth schedule to the Federal Constitution, Parliament may make laws in respect of Hindu endowments, but there is no provision in the Constitution of the State of Penang for the State Legislature to enact laws pertaining to the practice or propagation of the Hindu religion. It is therefore argued that the Ordinance is anachronistic and unconstitutional and ceases to be in force on or after Merdeka Day. Further, since the State Legislature has no power to enact laws pertaining to religion other than Islam, the Ordinance is inconsistent with Articles 3, 11 and 12 of the Federal Constitution and is void pursuant to Article 75 which provides that, "If any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void."

From the above averment, it is manifestly clear that the applicants argument on the unconstitutionality of the Ordinance is based on the assumption that the Ordinance [S.S. Cap. 175] is a State law, as there is no question that Parliament and not the Legislature of the State of Penang is competent to legislate law on "Hindu Endowments" under item 15(c) of the Federal List in the Ninth Schedule to the Federal Constitution. Now, S.S. Cap. 175 being a Straits Settlements Ordinance is a pre-Merdeka law. Indeed it is already in existence even before the Federation of Malaya Agreement 1948. Under items 74 and 78 of the Second Schedule to the 1948 Agreement, S.S. Cap. 175 the subject matter of which concerned Hindu Endowment Boards, charities and charitable institutions, became a federal law, although the exercise of executive authority of the Ordinance could be conferred on a State to the extent permitted by the second column of the Schedule. Thus, vide Legal Notification No. 152 dated April 7, 1949 in exercise of the powers conferred by section 3 of the Delegation of Powers Ordinance 1946 artd vested in him by virtue of section 4(d) of the Transfers of Powers Ordinance 1948, the then High Commissioner delegated to the Resident Commissioner of Penang and Malacca the exercise, within their respective settlements, of the powers conferred on the High Commissioner by the provision of section 3 of S.S. Cap. 175. Consequently, from April 7, 1949 the executive powers conferred by section 3 of the Ordinance was transferred to the State, although the Ordinance itself remained a federal law. This transfer of executive power to the State is in accordance with Clause 18 of the Federation of Malaya Agreement wh