Judges should keep out of religion: Court of Appeal declares doctrinal issues to be non-justiciable
In a landmark judgment handed down this week, the Court of Appeal has clarified the importance of judicial restraint when invited to adjudicate upon disputes amongst faith communities which involve matters of doctrine or religious belief.
In imposing a stay on proceedings arising out of the governance of two Gurdwaras used by members of the Sikh community as places of religious worship, Lord Justice Mummery stated that the resolution of who constitutes the “successor” of the original founder depends on the religious beliefs and practices of Sikhs in general and one sect in particular. This and related issues, he declared in a judgment with which Lord Justice Hooper and Lord Justice Pitchford agreed, are not justiciable in the English courts.
The case of Khiara v Shergill was an appeal from the Birmingham District Registry of the High Court. The key question for determination was whether the Ninth Claimant, Sant Baba Jeet Singh Ji Maharaj, is the “Third Holy Saint” and therefore in the designated line of spiritual succession that entitled him to exercise a power conferred by Trust Deeds of two religious charities to remove the Appellants as Trustees and to replace them with his fellow Claimants.
The Appellants contended that the contested claim to be the successor unavoidably turns on matters of religious faith, doctrine and practice on which the parties hold differing inward beliefs and allegiances. A secular court will not adjudicate on the truth of disputed tenets of religious belief and faith, or on the correctness of religious practices: those questions are non-justiciable, because they are neither questions of law nor are they factual issues capable of proof in court by admissible evidence. Judicial method is equipped to deal in hard facts objectively ascertainable, directly or by inference, from probative evidence. A secular court is not equipped to determine the truth, accuracy or sincerity of subjective religious beliefs about doctrine and practice. Such disputes are outside the recognised perimeter of judicial competence.
Lord Justice Mummery noted that the good sense of the judiciary has led to the recognition of boundaries of the constitutional authority and judicial competence of municipal courts in such sensitive areas. The basis of the general principle on which the English courts decline to entertain legal proceedings as non-justiciable was analysed by Lord Wilberforce in his Opinion in Buttes Gas and Oil v Hammer (No 3)  AC 888. He identified, as one of the factors for judicial self-restraint or abstention, the absence of “judicial or manageable standards by which to judge these issues” creating what he described as a “judicial no-man’s land”. He said that the principle is not one of judicial discretion: it is “inherent in the very nature of the judicial process”.
A Lord Justice Mummery stated:
“In my judgment, the authorities on the role of the courts in litigation about religious affairs establish, with a reasonable degree of certainty, that the courts abstain from adjudicating on the truth, merits or sincerity of differences in religious doctrine or belief and on the correctness or accuracy of religious practice, custom or tradition.”
In reviewing the 260 pages of the House of Lords’ decision in General Assembly of the Free Church of Scotland v Lord Overtoun  AC 515, Lord Justice Mummery emphasised that the courts do not decline to decide cases about civil rights, such as property and contract, or statutory or employment rights, just because there is a religious element. The importance of the decision, he remarked, is that it upheld the principle that members of a body of believers are not legally entitled to discard defining tenets of belief without thereby becoming liable to forfeit the right to use trust property held to promote the tenets of belief that it has discarded.
Lord Justice Mummery observed:
“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.”
Here the Court was being asked to pronounce on matters of religious doctrine and practice which relate to the validity of the disputed claim of the Ninth Claimant, who lives in the Punjab, to be the holy and spiritual leader of the Nirmal Sikhs and the successor to the First Holy Saint. As Lord Justice Mummery asked rhetorically, “How can the court possibly decide that kind of question with any degree of confidence or credibility?” Having heard the evidence from the witnesses about whether the Ninth Claimant is the “successor” and why they believe, or do not believe, “by what objective criteria” he again asked “is the court to decide, on the balance of probability, whose evidence is the more truthful?” In Lord Justice Mummery’s view, the question of succession is essentially a matter of professed subjective belief and faith on which secular municipal courts cannot possibly reach a decision, either as a matter of law or fact. He concluded:
“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 requisite authority. The court risks diminishing respect for its own authority, as happened, for example, to the Nineteenth 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.”
At the conclusion of his judgment, Lord Justice Mummery observed:
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.”
Mark Hill QC was leading counsel for the Appellants in the appeal, instructed by Seymours Solicitors LLP of Coventry. He specialises in matters of law and religion.
The neutral citation reference is  EWCA Civ 983. For the full transcript of the judgment click here: http://www.bailii.org/ew/cases/EWCA/Civ/2012/983.html