cormacburke.me.ke

[English version: Studia canonica, 25 (1991), pp. 509-517]

I. The Facts

            1. EM, the petitioner in this case, a widower with three children who was born in 1907, and MH, the respondent, met in 1972, in Ireland (where she lived) while he was on a visit there from the United States. They were married in her parish church on 14 January 1974, when he was 66 years old and she, 49. He claims that she agreed they would return to the United Stales to live there after her father died; but in fact did not fulfill his promise. The marriage broke up in 1978, and he returned to the United States.

            On 17 June 1988, he initialed proceedings for nullity at the diocese of X where the was domiciled. The Tribunal of X then appealed to the diocese of the respondent for competence to handle the case under c. 1673,3° . When the Regional Marriage Tribunal of Y replied that this was not possible because the parties did not live in the territory of the same conference of bishops, X appealed again, on the basis of 4° of the same canon - that X was the tribunal of the place in which most of the proofs were to be collected — and was granted competence.

            2. The respondent initially declared that she did not want to have any part in the proceedings. The acts carry a transcription of evidence purporting to be from the petitioner, his three children and a friend (1,47-75): but these declarations are not signed by him or by any of the witnesses. In July 1988, the respondent asked the Tribunal to be informed of the grounds on which the declaration of nullity is being sought. The officialis replied that it was "an inability to establish a matrimonial community of life and love on the part of both parties" (I, 82). It should be noted here that the dispositive part of the sentence states the grounds as "Inability to establish consortium vitae coniugalis on the part of the petitioner" (I, 83); while in communicating the decision to the parties, the Officialis says that the grounds were: "Inability to establish and fulfill the essential obligations of matrimony" [without saying on whose part] (I, 84-85). An affirmative decision was handed down by a one-judge tribunal on 29 December 1988. There is no record of any intervention by the defender of the bond, apart from a note on the dispositive part of the Sentence: "D/B Remarks: No objection to an affirmative decision" (I, 83)/

            On 7 February 1989, the respondent's civil lawyers wrote to X the first of a series of letters on her behalf, saying that she wishes to appeal the decision. They claim: "It appears that the decision was made in this matter, firstly without fully acquainting Mrs. M of the full facts. She does not appear at any time to have received a complaint from her husband and is not aware of the substance of any complaint made to you, other than the grounds stated in your decision of 29 December last" (I, 86). On 12 July 1989, she appealed to the Roman Rota.

            3. On a first examination or the acts of the case, the defender of the bond of this Apostolic Tribunal, having noted the absence of several important documents, raised the question of the possible nullity of the X sentence. The missing documents were requested from X and, after they were received, the defender of the bond formally proposed a "querela nullitatis."

            We must now resolve this incidental question, answering the doubts proposed in the decree of the Ponens of 22 October 1990: 1) whether the sentence of 29 December 1988, handed down by the Tribunal of X, is null; and if not: 2) whether the said sentence should be immediately confirmed or rather sent forward fur ordinary examination in second instance.

II. The Law

            4. Truth is so much at the heart of justice that, as St. Thomas says, "at times justice is called truth" (II-II, q. 58, art. 4, ad 1). Those entrusted with the administration of justice logically need a deep respect for the truth and a great spirit of service in its regard. "The administration of justice entrusted to the judge involves a mission of service towards the truth" (John Paul II, Address to the Roman Rota, 4 February 1980, in AAS, 72 (1980), p. 176). Matrimonial causes in particular, since they are so tied up with both private and public good, "require a specially diligent search after the truth" (John Paul II, Address to the Roman Rota, 26 January 1989, AAS, 81 (1989), p. 925).

            5. The judge's commitment to truth is particularly expressed in both objectivity and impartiality (cf. A. Stankiewicz, "I doveri del giudice, in Il processo matrimoniale canonico, Libreria Editrice Vaticana, 1988, pp. 129-132). He stands in a special relation of trust towards the truth; and in living these obligations of objectivity and impartiality, he becomes someone to be trusted. People have the right to see that concern for truth in the judge; and the judge, precisely because — and insofar as — he is seen to be objective and impartial, has the right to be trusted.

            6. The Church's law attaches special importance to the "right of defense;" so much so that if it has been substantially violated, then a sentence in the case is irremediably null under c. 1620, 7": "A sentence is vitiated by irremediable nullity if [...] the right of defense was denied to one or other party." This, it should be noted, is a new provision which was not present in the previous Code, and which of course derives from the broader (and also new) constitutional right expressed in c. 221, §§ 1-2. Canon 1620, it is true, does not specify what is essential to the right of defense, or what constitutes such a denial of it as to provoke the nullity of a sentence; but this can be gathered from the main procedural norms given in the Code. As we read in a recent rotal decree: "The right of defense demands that each party has the possibility of contracting the demands or assertions of the other. This possibility necessarily demands knowledge in the first place of the object of the controversy, and then of the proofs brought forward by the other side, along with the opportunity of presenting one's own. One must have the opportunity to develop an argument on the basis of one's own proofs, and to rebut the proofs advanced on the other side. And one must finally have an opportunity to answer the arguments presented by the other" (c. Davino, Decree of 15 January 1990, no. 7).

            7. In its efforts to pinpoint what is essentially involved in the right of defense, jurisprudence has recently received noteworthy and authoritative guidance. In his 1989 address to the Rota, Pope John Paul II underlined the importance of the question and dealt with significant aspects of it: "Full respect for the right of defense has its particular importance in causes for the declaration of nullity of marriage, both because these so deeply and intimately affect the persons of the parties involved, and because they deal with the existence or otherwise of the sacred bond of matrimony"; and, more broadly still, he recalled that the principle (enunciated in c. 1598), "ius defensionis semper integrum maneat" — the right of defense must always remain intact and be fully respected - "ought to guide the whole judicial activity of the Church" (AAS, 81 (1989) pp. 925 and 922).

            8. A person is evidently deprived of his right of defense if he has no proper knowledge of what is alleged by the other party, and what he has adduced by way of proof. One of the first points made by the Pope referred to this: "An equitable judgment is inconceivable without the concrete opportunity granted to each party in the case to be heard and to be able to know and contest the claims, proofs and deductions of the other party, or those brought forward «ex officio»" (ibid., p. 923). Hence the need at the introduction of a case, and even before the joining of the issue, for a precise libellus, so that what is being claimed can be not only clearly put before the proper court, but also made known to the other party (to whom the libellus must be communicated - c. 1508, § 2). So, c. 1504 states: "A libellus which introduces a suit must: 1° express before which judge the case is being introduced, what is being petitioned and by whom the petition is being made; 2° indicate the basis for the petitioner's right and at least in general the facts and proofs which will be used to prove what has been alleged."

            9. Once the case has been sufficiently instructed, a most important moment is that of the publication of the acts. Canon 1598, § 1, states: "After the proofs have been collected the judge by a decree must, under pain of nullity, permit the parties and their advocates to inspect at the tribunal chancery the acts which arc not yet known to them." The reason is succinctly stated in a decision c. Egan: "as often as the proofs are not published, that is, as often as they are kept secret from one or other of the parties, any sentence based on them is rendered totally null, because of a denial of the legitimate right of defense (cf. F. Roberti, De processibus, vol. II, Romae, 1926, no. 435, p. 157; M. Lega et V. Bartocetti, Commentarius in iudicia eccclesiastica, vol. II, Romae, 1941, p. 902; F.X. Wernz el P. Vidal, De processibus, Romae, 1949, no. 576, pp. 542-543)" (decision of 29 May 1980, in SRR Dec., 72 (1980), p. 415).

            A certain exception is envisaged in the canon, which continues: "however, in cases concerned with the public good, in order to avoid very serious dangers, the judge can decree that a given act is not to be shown to anyone, with due concern, however, that the right of defense always remains intact."

            10. The possibility of not allowing the interested parties access to the complete acts is very clearly qualified in the canon: it must be for exceptional and grave reasons ("in order to avoid very serious dangers"), in which case the judge can decree that "a given act" is not to be shown to anyone. This deliberate use of the singular ("aliquod actum") indicates that the canon does not contemplate, but rather excludes, the possibility that a judge can deny access to the whole of the Acts (cf. the decree coram the undersigned Ponens, of 21 June 1990, no. 7). The Pope made specific reference to this canon in his 1989 address, and warned against the danger of turning the exception into a general rule: "Here we are dealing with a right both of the parties and of their advocates. The same canon allows indeed for a possible exception: in cases related to the public good, the judge, in order to avoid very grave dangers, can direct that some particular act not be made known to anyone, always however fully safeguarding the right of defense. With regard to this possible exception just mentioned, it is necessary to observe that it would be a perversion of the norm, as well as a grave error in interpretation, if the exception were to become general practice. Therefore one must faithfully observe the limits indicated in the canon" (AAS, 81 (1989), p. 924).

            11. In the same address, the Pope also emphasized that a court of first instance does not respect a person's right of defense if it does not indicate to him or her the different ways in which the decision can be contested, including the possibility of appealing directly to the Roman Rota. "In order to guarantee even more (the right to defense, the Tribunal is obliged to indicate to the parties the ways in which the sentence can be impugned (cf. c. 1614). It seems wise to recall that the tribunal of first instance, in its fulfillment of this duly, ought also to indicate the possibility of having recourse to the Roman Rota, already for the second instance" (ibid., p. 925).

            12. Many other norms in the Code of Canon Law are designed to facilitate and safeguard the judge's mission in the service of justice and truth. Since he is to judge on the basis of "the acts and the proofs" (cf. cc. 1606 and 1608, §2), it is most important that what appears as evidence in the acts is truly what each witness in fact affirmed or intended to express. While the usual requirement is that the deposition attributed to each witness be signed by him or her, c. 1473 disposes that, "whenever the signature of the parties or witnesses is required for judicial acts and a party or a witness cannot or will not sign, this is to be noted in the acts; both the judge and the notary are to attest that the act has been read to the party or witness verbatim and that the party or witness either could not or would not sign." This could not be clearer; it applies when the witness cannot or will not sign (not therefore when the judge simply fails to asks for a signature!), and this fact must be attested to by both the judge and the notary. Not to observe these norms is to undermine the truth and trustworthiness of the acts.

            13. The fact that evidence is taped does not nullify the requirement that it must be written down (c. 1567, § 2), read to or checked by the witness, and signed by him or her, by the judge-auditor and by the notary (c. 1569). If these requirements are not fulfilled, depositions could be invalid under c. 124, § 1.

            14. The Church has always maintained that ecclesiastical courts are not subject to their civil counterparts; a claim that has seldom gone undisputed, and that is probably going to be accepted even less by modern civil regimes. Ecclesiastical courts, however, no less than civil courts, are subject to natural justice. Given the likelihood that contact and divergence between the ecclesiastical and civil systems will intensify, it seems important that canon law shows that its norms and practice are in full harmony with natural justice. It is true that many civil lawyers today tend to ignore natural law and consider positive law as their only criterion. By no means all, however, are of a positivist mind; many retain a keen sense of natural rights and justice. In dialogue with civil lawyers, therefore, when these use natural law arguments, ecclesiastical judges cannot cause any impression that such arguments carry no weight with them. Otherwise they would tend to discredit canon law and Church tribunals before civil lawyers who possess a sense of how justice and true human and natural rights are inseparably linked.

            15. It is in itself to be deplored if the faithful attempt to bring an ecclesiastical judge before a civil court. Their action gives scandal; and if it is quite irresponsible, they could be held liable for penalties under c. 1375. However, apart from the fact that the party having recourse to the civil courts is usually unaware of the canonical dispositions on this matter, it must be remembered that theirs might be an understandable, if not completely excusable, response to an obvious and deplorable violation of their ecclesial and human rights perpetrated by personnel of a Church tribunal (cf. decree c. Stankiewicz, of 20 January 1983, no. 17, in Monitor ecclesiasticus, 109 (1984), p. 256).

            16. Thus, while the Pauline exhortation to the faithful not to take their disputes before the civil authorities (I Cor 6), still carries moral weight, one could scarcely expect Christians to sense its force if they found that canon law practitioners show less awareness than civil lawyers of the natural rights of the faithful. If this were to occur, who could then say that a party is not justified in having recourse to a civil court, to seek redress against a canonical decision; and who could be surprised if the civil court upholds their claim? The conditions of modern society — both civil and ecclesial — make the possibility of this happening more likely than before.

            The ecclesiastical courts could then scarcely afford to ignore the civil decision, with the case probably going to the Apostolic Signatura, which might well find itself in the position of having to uphold the civil judgment.

            17. "A party can freely appoint a personal advocate" (c. 1481,§ 1). Many of the faithful are probably not conscious of this right, and may well think that they are obliged to accept an advocate suggested by the Church tribunal. They should be clearly informed of their right as a matter of course. Canon 1490 states that "permanent advocates are to he appointed in every tribunal [...] to exercise the function of advocate or procurator on behalf of parties who prefer ["malunt"] to choose them especially for marriage cases." (The English-language translations of the Code made by the Canon Law Societies both of America and of Great Britain and Ireland, say "who wish to choose them;" but this docs not quite give the nuance of the latin "malunt," which stresses rather the preference or choice before the parties). They should therefore be helped to be fully aware that they have a choice — i.e., between no advocate, a Tribunal advocate, or one otherwise selected by them.

            18. Canon 1483, when compared to c. 1657 of the old Code, shows a certain liberalization regarding the qualifications called for in an advocate. It is more readily allowed that he be a non-Catholic; and while he is required to be "peritus" or properly competent, it is no longer absolutely stated that this must be in canon law. "The advocate must be a Catholic unless the diocesan bishop permits otherwise, must have a doctorate in canon law or be otherwise truly expert and must be approved by the same bishop." Careless vernacular translations can narrow the scope of this. as for instance when one Spanish version says: "el abogado debe ser [...] doctor, o, al menos, verdaderamente perito en derecho canónico." This was indeed the tenor of the equivalent 1917 canon ""debet esse doctor vel alioquin vere peritus, saltem in iure canonico;" the new Code, however, introduces a subtle but important difference ("doctor in iure canonico, vel alioquin vere peritus"), asking simply for true expertise without restricting it to the field of canon law. Before the bishop gives his approval to a party's choice of an advocate, he will wish to be assured that the latter possesses sufficient knowledge of canonical procedure and substance so as to be able to represent his client fairly and properly before an ecclesiastical tribunal; but, provided the lawyer is "otherwise expert" (as is presumably true in the case of a competent civil lawyer), he cannot be rejected on the simple grounds that he has no formal canonical qualification.

            19. Trust in one's lawyer is like trust in one's doctor; it is a very important and a very personal thing, where people tend to have strong preferences. The new Code has liberalized people's right to choice of an advocate, and it is the responsibility of ecclesiastical authorities to inform them of these broader rights, and to facilitate whatever reasonable preference each one may have. Not to do so could cause the faithful to lose confidence in the mode of working and in the personnel of tribunals of the Church.

III. The Argument

            20. In the acts originally sent to the Rota, no copy of the decree of publication of the process was to be found, even though the index gave a date (1 December 1988) as that on which it was issued. After a request sent to the Tribunal of X, a copy was received of a document presented as being the decree, but which however carries no date. Even if we allow that this decree was issued on 1 December 1988, it clearly does not fulfil the requirements of c. 1598.

            a) In this decree, the judge says: "Under the provisions of c. 1598, § 1, we reserve judgement upon a petition of the parties to inspect the acts in the office of the Tribunal until and unless such a petition is received, which petition must be submitted in writing within fifteen working days of reception of this decree, and, under provision of said canon, is subject to denial in whole or in part." This decree therefore neither allows nor denies the parties direct access to the acts; but rather declares that, if they petition such access within 15 days, their right will be granted or denied by another decree. The decree, therefore, inasmuch as it regards the parties, cannot be held to be a decree of publication according to c. 1598, § 1, at all.

            b) There is no indication anywhere in the acts that this decree was intimated to the respondent; from her lawyer's letter of 6 March 1989 (I, 89), it appears that it was not.

            c) In it the judge states, "We grant to the advocates permission to inspect [...] the Acts." In relation to the respondent, this is meaningless, since the Court had not indicated to her that she should nominate a lawyer nor had it assigned, or offered to assign, one to her. In effect, therefore, there was no publication to her, not even through a legal representative,

            d) The actual affirmative decision was taken on 29 December 1988; so even if the respondent in Ireland had received this decree, there was, practically speaking, no time to allow her, "within 15 working days" from its reception, to apply for permission to inspect the acts, and much less to "propose additional proofs to the judge" (c. 1598, §2).

            e) When the judge says that the petition of the parties to inspect the acts under c. 1598, "is subject to denial in whole or in part," he is exceeding his powers under the canon which, as we have seen in the section on law, allows for the reservation of some (individual) document; not of the acts as a whole.

            21. All of the above makes it quite clear that the respondent was deprived of the possibility of seeing the acts; therefore there was a grave violation of the right of defense, and the sentence is irremediably null under c. 1620, 7° .

            22. What we have said so far is sufficient to ground our decision; but some other points should be noted:

            a) Since no libellus was sent with the original acts, this was another document that had to be requested from the Tribunal of X. What X subsequently sent does not qualify to be termed a libellus, since it is just the petitioner's answers to a questionnaire, where he simply explains the difficulties that occurred in the marriage and its breakup. It does not even clearly petition for nullity and no grounds are given on which an annulment could be based (II, 18). The judge himself, speaking of this "libellus", describes it as "too lengthy and vague" (II, 2). Certainly it does not express "what is being petitioned," nor "indicate the basis for the petitioner's right" (c. 1504). It seems therefore that the case was accepted without any true libellus being presented.

            b) The so-called libellus was not in fact sent to the respondent, which was one of main complaints made — quite rightly — by her lawyers (1, 86). The judge, in admitting that the libellus was not sent to her, gives as an excuse: "It was that the libellus was too lengthy and vague to be given to an uninformed lay-person, let alone the respondent; [...] the petitioner in his libellus makes some allegations concerning the sexual relationship between the petitioner and the respondent. It was felt that these reasons met the requirements of c. 1508, § 2" (II, 2). The canon in question reads: "The introductory libellus is to be joined to the citation unless for serious reasons the judge determines that the libellus is not to be made known to the respondent before the latter makes a deposition during the trial." It is debatable whether the reasons quoted by the Tribunal of X are the sort of "serious reasons" contemplated by the canon. It should be remembered that the respondent is the first (not the last) person with a right to know the contents of a libellus. This is also a reason why the judge should require that it not be vague; in this way it can be understood by a "lay-person," if necessary with the help of an explanatory note added by the Tribunal itself.

            c) In communicating the decision to the respondent, the X Court stated: "The law requires that this case be reviewed by the appellate Tribunal of X.X." (I, 85). From what we have quoted above of Pope John Paul's 1989 address to the Roman Rota, it is clear that the Tribunal, in not informing the respondent of her right to appeal directly to the Rota, was guilty of a further failure to respect her right of defense.

            d) The petitioner's "evidence" is not signed by him. We are told he "directed the auditor to sign his name on the oath form" (1,45-46). The same is true in the case of the other witnesses (1,52-54; 60-61; 67-68; 73-74). The important provisions of c. 1473 have not been observed here.

            e) It is true that the respondent, from the start, did not show a very cooperative altitude; but it was abundantly clear that she was against the case. In view of this. the Y Regional Tribunal, to protect her rights, should not so easily have consented under c. 1673 to allow X competence to try the case.

            f) The sentence was based on the petitioner's "inability to offer commitment to another person" (I, 100), because of his being "not capable of developing intimate relationships" (ibid., 99). These are grounds that are inadequate to meet the requirements of c. 1095; and are without support in established jurisprudence.

            23. There is a further major aspect to the case which, while again not touching on the merit, illustrates points of broad importance that we have mentioned in the section on law. To our mind, the Court of X did not show proper prudence in its reaction to the intervention and remarks of the respondent's civil lawyers.

            24. When the respondent was informed of the decision by the Court of X (I, 85), she replied through her solicitors, who stated that "she wishes to appeal the decision" (1, 86). X answered that they must show a mandate from her, which was quite true; but also insisted that, according to c. 1483, they would need to be "expert in canon law". Her attorneys reply: "The grounds that we are appealing [...] are not grounds that are governed by the canon law, they are grounds that are governed by common law and the law of natural justice. It appears from the correspondence that you have adjudicated on this matter and made a decision without properly informing our client as to the basis to the complaint made against her. In our view it is incumbent on any person adjudicating on a matter such as this to be satisfied that the person against whom an order, as in this case for the annulment of a marriage, has been made, be fully acquainted with the complaint made and the reasons for making the order of annulment. It is our view therefore that it is pointless advising our client that she should appoint somebody versed in canon law when the basis of the appeal is as stated by us" (I, 89). This is an incontestable statement of elementary juridical principles, which underlie the relevant dispositions of canon law on the right of defense. The Officialis of X contests this. He writes to Y asking the Officialis to explain to her lawyers, "their inability to participate in this matter solely on the basis of the principles of common law" (I, 90). In so doing, he is ignoring not only the truth of their basic claim, but also the fact that (whatever about the technical requirement for a mandate) they are her legal representatives.

            25. The Officialis of Y replies to X trying to point out precisely that one cannot contest the right of one of the faithful to invoke natural justice. He says: "I would like to make the following points: 1. Her solicitors acting on her behalf [...] state clearly that she wishes to appeal the decision and they mention, other things, an issue of natural justice. Therefore, irrespective of the appointment of any advocate, it would seem that this is her decision."

            26. Y properly reminds X that it is up to the respondent "to determine the court of second instance "whether the tribunal of appeal in the States or the Roman Rota." He then also reminds him that the point made by the solicitors — her right "to be fully acquainted with the complaint made and the reasons for making the order of annulment" — was stressed by the Pope in his address to the Rota that year.

            "If I may suggest one solution, if you let her know directly the precise ground on which the marriage was annulled — whether it was her own inability or that of her husband — and the reasons in law and in fact on which that decision was based, and also that she can appeal against this either to the local Appeal Tribunal or to the Rota, this would certainly satisfy the demands of natural justice" (1,92).

            "[...] I should also add that [...] in this country certain groups would love to discredit the Church's tribunal system, and to be able to show that it is some kind of a star-chamber procedure that denies one's right in natural law to defend oneself. I enclose a summary of the Pope's address to the Rota" (1, 93).

            27. It was in fact only two months after this correspondence, on 8 June 1989, that the Tribunal of X sent the respondent the full sentence, and informed her that she could appeal to the Rota (1, 96).

            28. The complications into which the matter could have run are borne out in the final letter her lawyers write: "We want to be perfectly clear that the case we are making on behalf of our client is that she received no documentation whatsoever as to what the allegations were against her. These have now been supplied to her, but you have already made a decision in this matter without properly informing her of the basis of the complaint. In fact our client contemplated applying to the High Court in this country for Judicial Review of the matter, and we have little doubt if she took this course the entire decision made would be reversed" (1, 102)

            29. Wherefore, having considered the law and the facts in this case, we the auditors of the turnus, in the presence of God and having invoked the name of Christ, reply to the doubts put to us:

            to the 1st): in the affirmative, in other words, the sentence of X Tribunal of 29 December 1988 is irremediably null;

            to the 2nd): the question does not arise.

            30. If the parties wish to pursue the case, this should be done before the present Apostolic Tribunal.

            Given in the Tribunal of the Roman Rota, 15 November 1990.

            Cormac Burke, Ponens

            Thomas G. Doran

            Kenneth E. Boccafola