Wednesday, 25 July 2012

Law cannot sort out everything all of the time......

Some things are just non-justiciable - not for the Courts and not for the general law.  Questions of national security are often held to be non-justiciable.  Equally our Courts will not adjudicate on disputes between soverign states.

Religion is also one such area.  In this case the Courts were asked to adjudicate on doctrinal matters relating to the Sikh faith.  In an excellent judgment, Mummery LJ explained how the Court could not get involved:

First, non-justiciability is a salutary principle of judicial self-restraint. It ensures that judges do not overreach themselves and that they abstain from deciding questions that are neither appropriate for, nor capable of decision by, judicial method. Judges are not capable of understanding and deciding everything and it is not their function to do so. Judges are not omniscient. The courts they sit in are courts of law. There are matters on which a court is not competent to speak with authority, because of the limitations inherent in the nature of the judicial process, and therefore should not speak. That is so where the questions are not matters of law at all, such as subjective inward matters incapable of proof by direct evidence or by inference.

In my judgment, this court should put a halt to this case now. It is being asked to pronounce on a matter on which it cannot speak and should not pretend to speak with authority. The court risks diminishing respect for its own authority, as happened, for example, to the 19th century jurisdiction of the Judicial Committee of the Privy Council, when, in a more religious age, it gave appellate decisions (often ignored) in its ecclesiastical jurisdiction on points of the interpretation of scripture, doctrine, sacraments, ritual and vestments that arose in religious controversies in the established church. Those unfortunate and rather pointless battles in the courts have been rightly described as a cross-fire of jurisdictions that were a gold mine for barristers.

The parties and their numerous supporters who filled the court during the hearing should not conclude from this that the courts are letting them down. I would hope that the court is doing them a favour. The costly crudities, the outmoded methods and the unwelcome and often unpredictable outcomes endured in adversarial litigation are to be avoided, if at all possible. Experience teaches that litigation is not always a good way of resolving a dispute, as shown by the Free Church case. It is not the only way of resolving disputes. The parties here would be well advised to engage in some form of alternative resolution procedure. The continuation of these proceedings will only inflict on them and their communities further waste of time and money in the fruitless pursuit of a judicial determination that cannot be made

Voluntary procedures are available through mediators, including specialists in disputes involving religious charities. Legal procedures may also be available through the scheme-making statutory powers of the Charity Commission. The present litigation has no realistic future in the courts and must be brought to a halt now.

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