IN recent memory, we have seen the proliferation of church groups as a result of disputes. We also hear of disputes so severe as to cripple the unity and witness of a particular church.
What kind of legal rights the members of a church have in the event of a dispute depends on how the church is constituted. For example, if a dispute arises in a church that is a registered society, then the Societies Act will apply.
Every church is exposed to litigation or legal processes that may force a legal resolution upon a church in dispute. The obvious danger of this prospect is that disputes are then resolved by legal principles without any recourse to Scriptures.
The authority of the leadership of a church is undermined as leaders will have to be subject to Court orders or directives of authorities.
To protect the independence and integrity of churches and their system of church government, it is essential that churches should not be subject to the jurisdiction of the courts.
In the context of Malaysia, if there is litigation involving a church it would mean in practical terms that the fate of the church would be decided by non-Christians (in most cases, Muslims). To minimise this danger, certain measures should be considered:
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Dispute Resolution Procedures should be drafted and incorporated into the constitutional documents of churches. This should state clearly that in the event of a dispute, certain internal mechanisms should be invoked or resorted to. Courts will honour such provisions and require a litigant to "exhaust all internal remedies" before coming to Court.
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Alternatively, Arbitration Clauses could also be inserted into constitutional documents of churches to require that disputes must be referred to arbitration. The identity of the arbitrator could even be described, for example a specific committee or tribunal. Some churches may like the idea of an outside arbitrator. Thus, arbitrators could be denominational committees serving churches of that denomination. Or, an inter-denominational committee set up by NECF Malaysia could offer its services to arbitrate in cases of specific church disputes.
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Leadership and succession issues should also be clearly described in constitutional documents of churches. This will prevent a challenge to a properly constituted leadership of a church. It will also prevent, in the case of litigation the Court forcing its own nominated leadership upon a church.
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Property issues also must be clearly defined in the constitutional document of a church. A suggested approach is to treat all gifts as irrevocable and vesting in the corporate body (or what’s left of it). The identity of the church has then to be clearly defined as the group that subscribes to the articles of faith and accepts the duly constituted leadership of the church.
