I regret the way that Justice Moldaver phrased his question. Admittedly, however, as a non-Witness he couldn’t have known better. Gnam made it seem that the Organized book, which every Witness has access to, is an equal reflection of the contents in the Shepherd book. This is simply untrue. Only a Witness who is privy to both books would know this. The Organized book is a watered down version of the Shepherd book.

That said, a better way of phrasing Justice Moldaver’s question would have been thus:

Having regard to the importance of a members standing in the church, in conjunction with the investments made by said members, is it not the case that every member has sufficient interest in this book, this in respect of its contents and procedures, as to warrant its general circulation and availability? Do the rank-and-file members of the church, in fact, have access and permission to this book? I ask this in light of the fact that, so far as I can see, it appears that, in his originating affidavit, Mr Wall sourced this book from the internet and not the church.

That, I submit, would have been a better question.

Justiciability and Jurisdiction

This case turns on two issues, namely, justiciability and jurisdiction. These two concepts have significant overlap, but, nevertheless, remain distinct. In fact, a measure of confusion and uncertainty permeated throughout the hearing as to which of the two was being addressed at any given time.

Justiciability can be divided into two aspects, namely, 1) procedural justiciability, and 2) substantive justiciability. Regarding the former, it entails three features, namely, standing, mootness, and ripeness.[5] Of primarly concern to us, however, is substantive justiciability. As my professor, Moolman, put it:

“[S]ubstantive justiciability concerns the subject matter of the claim, and whether it is competent for the courts to decide claims of that sort. There are some issues that are not appropriately decided by the courts at all.”[6] (Italics mine)

One such issue (or subject-matter) that is not competent for courts to decide is religion. Religion, therefore, is not justiciable; it is sheltered from judicial intervention. This is the case because – frankly speaking – everyone is endowed the right to believe whatever the hell they want to believe as a matter of religious faith (at least in most constitutional democracies).

Jurisdiction, on the other hand, really has to do with the power of the particular court to hear the matter. Jurisdiction is determined by various factors such as, inter alia, 1) the location of the offending act, 2) the quantum that the plaintiff is seeking, 3) the residence of the defendant, and 4) the constitutional powers of the court. Thus, where one court might lack jurisdiction, another court might possess it.

In summary, then, where a matter is not justiciable, then, as a general rule, no court may entertain the matter (it is axiomatic that, in such case, jurisdiction is rendered nugatory). On the other hand, however, just because one court lacks jurisdiction should not be mistaken to mean that the issue or subject-matter complained of is not justiciable. That remains a question of law.

Keeping the above in mind, then, this is why the Respondent’s lawyer, Michael Feder, commenced his replying argument by stating that his client, Wall, does not challenge the substance or merits of the judicial committee’s decision to disfellowship him, and, secondly, that neither is he asking the court to make a determination as to who can be a Jehovah’s Witness.