cormacburke.me.ke

[English version: Studia canonica, 26 (1992), 490-496]

I. The Facts

            1. The sentence of 30 April 1991 of the Tribunal of X, declaring the nullity of the marriage of 20 July 1963 between CW and MP, was confirmed four days later, that is, on 3 May 1991, by the Interdiocesan Appeal Tribunal. On 22 May following, the respondent proposed a plaint of irremediable nullity against the sentence on the grounds of denial of the right of defense (c. 1620, 7° ). The presiding judge of the appeal court, in a letter of 4 June 1991, appeared to reject the plaint without giving it any judicial treatment. The respondent then appealed to the Supreme Tribunal of the Apostolic Signatura which decreed on 29 November 1991 that the case be entrusted to the Roman Rota in order to examine the plaint of nullity and - insofar as the nullity of the decision or decisions be established - to judge the merit of the case in first or in second instance; and likewise, if necessary, to consider the request for a new examination of the case.

II. The Law

            2. The Second Vatican Council is marked by its particular insistence on human rights and dignity. So the Constitution on the Church in the Modern World speaks of "the unique dignity of the human person, who stands above all things and whose rights and duties are universal and inviolable" (GS 26). This keen awareness of the dignity, rights and duties of each of the faithful was meant to characterize post-conciliar reforms, also those to be undertaken in revising the Code of Canon Law. The Preface to the 1983 Code recalls in fact how the main guidelines for the work of revision, approved by the 1967 Synod of Bishops, included the following: "Because of the basic equality of all the faithful and the diversity of offices and responsibilities..., the rights of persons should be properly defined and given adequate protection. As a result the exercise of authority ought to appear all the more clearly as a service, recourse to it facilitated, and abuses eliminated" (AAS LXXV (1983-II), p. xxii).

            The exercise of judicial authority in the Church should therefore constitute - and be seen to be - an impartial service of justice. Since the contentious canonical process arises precisely because rights are in dispute, each of the parties to the dispute is equally and fundamentally entitled to the defense of his or her legitimate rights. Hence the logic of c. 1620, 7º (one of the most noteworthy innovations of the new Code), which lays down that "if the right of defense was denied to one or other party", any Sentence subsequently given is vitiated by "irremediable nullity".

            3. Pope John Paul II dealt with this matter in his 1989 Address to the Roman Rota, with special reference to causes for the declaration of the nullity of marriage (AAS, vol. 81, pp. 922ss). Dwelling on basic aspects of the question, the Pope insisted: "An equitable judgment is inconceivable without the «contradictorium», that is, the concrete opportunity granted to each party both 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»" (ib. 923). This being a principle of natural justice, it is reflected in long-standing jurisprudence. So we read in a decision c. Wynen of March 9, 1955: "That each party, whether Petitioner or Respondent, in a criminal as well as in a contentious process, has the right of defending himself or herself, either personally and directly or through an Advocate, and that this right derives from natural law, is so obvious and certain that it no longer needs proof. Only the parties themselves can renounce this right, by acquiescing to the justice of the Tribunal; ... while natural law does not require that the parties actually defend their cause, it does demand that the possibility of defense be granted to them" (RRD, vol. 47, p. 220). For "a judgment or a judicial discussion is not conceivable without the "contradictorium", that is, the opportunity granted to each party to defend himself or herself against the charges and statements of the other party. But how can this be done unless each knows the essence of the case being made on the other side? ... Hence publication of the acts pertains to the substance of the trial" (Lega, Comment. in iud. eccl., vol. 2, p. 900). Or in another decision c. Mattioli of Feb. 26, 1954: "There is no judgment without a judicial argument, and there can be no argument where the matter to be discussed is not made fully known, in its entirety, to each of the parties who are necessarily involved in the trial" (vol. 46, p. 176). And more recently: "The right of defense is substantially made up of two elements, the right to the «contradictorium» and the right to a judicial hearing. Therefore a person is certainly deprived of the substance of his right of defense if, because of the behavior of the Tribunal itself, he cannot oppose the action brought to court by the opposite party, nor impugn the proofs gathered during the instruction, nor make his own judicial declaration nor present his arguments regarding the issue before the court. It is certain therefore that a sentence would "be one-sided" (decision coram Brennan, Nov. 27, 1958: vol. 50, p. 661), if the other party were kept in the dark during the whole of the process about the grounds of nullity or the arguments advanced to prove it. For that sort of exclusion of a party from the canonical process prevents a processual relationship from being validly instituted" (Decree c. Stankiewicz, Jan. 20, 1983, in Monitor Ecclesiasticus 1984, p. 249). "The right of defense consists in the concrete and practical granting not just of an abstract right or the mere possibility of defending oneself, but also of the exercise of the right or the possibility of exercising the right of one's own defense. The granting of a right without the concrete possibility of exercising it, is the same as the denial of the right itself. Hence if a party is actually denied the exercise of the right of defending himself or herself in judgment, the sentence handed down is to be considered null in virtue both of natural law as well as of positive law contained in c. 1620, 7º" (Decree coram Boccafola, July 25, 1989).

            4. The publication of the Acts is absolutely essential if each party is to be in a position to know the proofs and arguments adduced by the other, and to have the opportunity of rebutting them with counter-arguments, further evidence, new witnesses, etc. So, c. 1598 lays down: "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 are not yet known to them".

            Referring to this norm, the Pope insisted that "Here we are dealing with a right both of the parties and of their advocates" (AAS, ib. 924). It is not enough that the Advocate for each of the parties (if in fact each has an Advocate) can inspect the Acts. The faculty of viewing the Acts is already possessed by the Advocates in virtue of c. 1678. Canon 1598 therefore is enunciating a right (corresponding, we repeat, to natural justice), which pertains to the parties in particular, and of which they cannot be deprived without grave prejudice both to them and to the whole canonical process.

            5. It is true that in the matter of the publication of the Acts, c. 1598 allows for a possible exception: "in cases that concern the public good, the judge, in order to avoid very serious dangers, can decree that a given act is not to be shown to anyone, always fully safeguarding however the right of defense". The Pope commented on this in the following terms: "With regard to this possible exception, it is necessary to remark that it would be a distortion of the legal norm and also a grave error of interpretation, if the exception were to become general practice. One must therefore abide faithfully by the limits indicated in the canon" (AAS, ib. 924).

            6. The limits indicated in the canon are three: firstly, it must be a question of avoiding "very serious dangers"; secondly, it is some "given" or particular act that can be reserved; thirdly, the right of defense must in any case be fully safeguarded. Where tension can arise in practice is between the first and the third point of limitation. The exceptional step of not allowing publication of some act (and the Pope insists that it must remain an exception) tends of itself to encroach on the right of defense. It follows that the more it inclines to do so, the more immediate (and not just remote), the more real (and not just hypothetical), and the more genuinely serious (and not just moderate or slight), must be the dangers threatened.

            7. The second limitation merits special attention, also because it offers no doubt in interpretation. Even when the Judge achieves harmony between the first and third points, the canon simply authorizes him to declare that a particular act ("aliquod actum") be treated as reserved or confidential. Here a clear limit is indicated which the law does not allow the Judge to exceed.

            8. Some Tribunals have at times inserted a statement into the decree of publication, according to which any request by a party to examine the Acts "is subject to denial in whole or in part". The Apostolic Signature has pronounced such a statement "inadmissible" (cf. Decree of Oct. 5, 1989: P.N. 21.163/89 V.T.) because it clearly exceeds the terms of c. 1598, which simply contemplates the possible reservation of a given act. Therefore, even in the presence of apparently grave reasons, the law does not permit or countenance the withholding of the whole of the Acts from the party or parties. Any disposition to such an effect necessarily provokes irremediable nullity of the sentence.

            9. The issue of "confidentiality" is both important and complex. It is clear that those who are not parties to a case but must necessarily intervene in it (judges, officials, lawyers, notaries, etc.), are bound by a strict professional duty not to reveal anything that could infringe on the rights of parties or witnesses. The witnesses certainly have a special right that their evidence not be revealed to anyone outside the court proceedings. However it is the parties who are obviously in a unique position, and whose rights have to be the judge's special concern. A matrimonial case touches the fate and status of both parties in a matter of the greatest personal importance; and so they are entitled in natural justice to be fully acquainted with the evidence according to which the judges will decide this point of their destiny. Hence the parties' right to 'publication' of the Acts of the case, under c. 1598.

            One should of course note that while "making public" and "keeping reserved or confidential" appear to be opposed concepts, they are referred by the law in question to different categories of persons. As the Pope states in the Address already mentioned: "it should be quite clear that the 'publicity' of the canonical trial as far as the parties are concerned does not affect its reserved nature as regards all others" (AAS ibid. 925). It is to the parties that the Acts must be made public; this is their right. It is in relation to all others - all who are neither a principal nor an officer in the trial - that they must be kept confidential and not disclosed.

            Confidentiality here denotes an attribute of the Acts; and corresponds to a "duty of confidentiality" on the part of all involved in the case. It is true that this objective confidentiality of the Acts implies a "right to confidentiality" on the part of a witness; a right, in other words, that what he or she says in evidence should not be disclosed to anyone outside the case. That right is clear and undisputed.

            10. What is not clear is that the "right to confidentiality" can be invoked in the sense of the "right to give secret evidence" - which may well tell against the very interests of one of the parties to a case (interests that are the precise object of the judgment to be handed down) and is in any case given on the express condition that the person in question should not know of it. The acceptance and use in trial of such "secret evidence" is completely repugnant to the modern mind and to the contemporary sense of justice. Evidently such a "right" is in no way countenanced by c. 1598. Confidentiality therefore precludes other persons from access to the acts, for they have no right to know them. It cannot bar one or both of the parties from such access, for they have a strict and inviolable right to this direct knowledge. Not to respect this right would be to countenance a sort of secret chamber process whereby evidence could be used against a person of which he or she is unaware and has therefore no opportunity of rebutting.

            The Pope insisted on these points: "Ordinarily the faithful approach an ecclesiastical Tribunal for a solution of their problem of conscience. For this reason they often say things that they would not otherwise have said. The witnesses also frequently testify under the at least tacit condition that their evidence will be used only for the ecclesiastical trial. The Tribunal - for which the search for the objective truth is essential - must not betray their trust by revealing to outsiders what should remain secret" (ibid. 925-926). If the Tribunal would obviously incur a grave betrayal of trust in revealing to outsiders what should remain secret, it just as obviously fulfills its simple duty in allowing the parties access to what they have a strict and natural right to know.

            Regarding the witnesses, they are entitled, as the Pope says, to make an explicit condition (and if it is not made explicitly, the Tribunal can presume it to be made tacitly) that their evidence will be used "only for the ecclesiastical trial". Their evidence is sought precisely because it is hoped it will be useful to the court proceedings. Evidence of witnesses whose testimony is not likely to be of use is not normally sought. The Judge has the obligation moreover to ensure that, so far as possible, the questions put to the witnesses and the answers provided by them are truly pertinent to the matter of justice before the Tribunal. And he should further bear in mind the Pope's words in the address already referred to: "One obviously must explain to the witnesses the true sense of the law in question, and emphasize too that a member of the faithful, legitimately convoked by a judge with competence, is bound to respond and to tell the truth, unless he or she is exempted by the law. Besides, a person should have the courage to assume responsibility for what he says, and has no need to be afraid if he has really told the truth" (ibid. 926).

            11. The issue of "confidentiality", for all its importance, must be seen in perspective. To protect witnesses from possible future liability, arising out of the evidence they give, is a legitimate and proper concern of a Tribunal; but it is one which is clearly subordinate to the Tribunal's actual duty to safeguard due process in the present trial. If priorities are respected, a court cannot sacrifice the justice and integrity of the current judicial hearing to possible issues - however delicate - that may arise at some future time. To invert priorities here - i.e. to allow the witness's relative right to confidentiality to take precedence over the party's absolute right to publication - is to run the gravest danger of provoking the nullity of a sentence.

            12. While it is easy to exaggerate the possible future dangers that might result from publication of the acts to the parties, it is at the same time clear that the Tribunal must take all reasonable steps to avoid such dangers. The following measures might be suggested:

            a) witnesses should be reminded that the Tribunal is more interested in knowledge and facts than in mere opinion; what mainly matters is what the witness knows to be true; and, as the Pope recalls, the person speaking the truth has little to fear;

            b) witnesses should be told from the outset of the natural and fundamental right of both parties to be informed of all the evidence adduced;

            c) if there is some particular statement or document that a witness strongly feels ought not be communicated to one or both parties, he or she should be requested to indicate it specifically and to give the reasons why it should be treated with reserve;

            d) the Court can then prudently decide whether such a particular item of evidence is to be treated as reserved under c. 1598: weighing both the importance of the evidence itself as well as the reasonableness of the witness' fear of very grave danger resulting from its publication to the parties;

            e) it seems that another option is open to the Court: to decree that such specific evidence should also be published to the parties, while simply the name of the witness giving the evidence be reserved.

            13. This last suggestion, though not directly contemplated by c. 1598, is a measure that would appear to fall within the spirit of the canon, as providing a just solution to the practical problems involved. To all intents and purposes, it eliminates the dangers feared by the witness, while at the same time it respects the parties' rights to know the full substance of what is testified. The relative 'anonymity' accorded to the witness is not ideal; but (especially since the cases we are dealing with are always exceptional) possibly represents the most equitable manner of harmonizing interests and rights.

            14. In the unlikely event that a particular witness were called to give evidence and refused to accept the equitable approach of the above measures, this arguably provides good reason for excluding him or her from the trial (cf. c. 1555). It is clear that the fairness of a trial is less prejudiced by the absence of one such witness than by the inadequate protection of the rights of the parties themselves.

            15. Another norm of great importance to the right of defense is contained in can. 1614: "The sentence is to be published as soon as possible with an indication of the ways in which it can be challenged; it has no force before publication even if the dispositive section has been made known to the parties with the permission of the judge". The canon is quite clear; without publication the sentence is not null, but is rendered ineffective and absolutely so: "it has no force". The Pope, in the same address already referred to, gives the basic reason. "How in fact could one of the parties defend himself or herself in appeal against the sentence of the lower court, if he or she were deprived of the right to know its motivation both in law and in fact?... One cannot understand therefore how the sentence could be confirmed on the appeal level without the required publication" (AAS. ibid. 924).

            16. A practice of appointing an Advocate for the Petitioner, but not for the Respondent, is questionable from the point of view of canonical equity. There is no good reason why the Petitioner should enjoy greater help; and the canons generally presuppose the presence of an Advocate for each party (cc. 1490; 1559; 1678). Even if the Defender of the Bond conscientiously fulfills his own peculiar mission, this does not necessarily coincide with the defense of the rights of the Respondent, nor does he have as keen a personal interest in the matter as does the latter. In a case where the Respondent were opposing the petition for a declaration of nullity, one would obviously be on the level of travesty if a Court claimed that the defense of the Respondent's interests was carried out by a Defender of the Bond who had in fact completely neglected his own proper mission.

III. The Argument

            17. On 4 March 1991, the same day as the tribunal was constituted, the single judge, having accepted the petition, sent a letter of "citation" to the respondent in which, with no mention of the grounds of nullity advanced, he invited her to give her evidence over the phone at a time to be arranged.

            On 18 March 1991, the judge declared the respondent absent from the trial; and on the following day he issued the decree of joinder of the issue, without making any notification of this to the respondent. On 12 April 1991 the respondent spoke on the phone with a notary of the tribunal, to say that she was available that day to give her testimony by phone, and also indicated on what other days and times she could speak by phone with the judge. The judge however found the times indicated too restrictive. The respondent received no further notification from the judge, except about the two affirmative decisions given in the case.

            The decree of publication was issued on 26 April 1991. In it one reads: "It is decreed that the acts of this case be available for inspection at the tribunal solely by the duly appointed procurator-advocates for the parties for a period of ten days from the date of the communication of this decree." Within four days, however, the single judge handed down an affirmative decision.

            18. As is clear, the decree of publication was given against the norm of c. 1598, as we have explained it in the law section. It represents a significant violation of the respondent's right of defense, and provokes the irremediable nullity of the sentence.

            19. This is sufficient to settle the question referred to us. However, without wishing to reiterate all that is to be found in the decree of the Apostolic Signatura of 29 November 1991, we could usefully note some further points.

            On 3 May 1991, just four days after the sentence (which was not notified to the respondent), the decree of confirmation was given. The acts of second instance consist of one single page, that is, of the decree of confirmation alone, without any presence of or reference to the animadversiones of the defender of the bond of this grade (cfr. c. 1682, § 2).

            When the respondent in a letter of 22 May proposed a plaint of nullity against the sentence of first grade, the judicial vicar of the appeal tribunal replied to her in a letter in which the plaint appears to be rejected without any judicial treatment. Some statements of this letter cannot but cause surprise.

            The judge writes: "Since the acts of the case contain confidential information obtained with a promise to keep it confidential, the sentence is not made available to either party[...]." In actual fact only one witness gave evidence; and her testimony was taken over the phone. Nowhere in the transcription is there any suggestion of or request for "confidentiality"; nor does the evidence given contain any element which might be considered "confidential" for the purposes of c. 1598, or from whose communication to the respondent any serious dangers might reasonably be feared to materialize. The law contains no provision in virtue of which "confidentiality" can be invoked to justify non-publication of the sentence, contrary to c. 1614. In having recourse here to the concept of "confidentiality," the judicial vicar does not show awareness of its limits and complexity, as we have sought to illustrate them in our in iure considerations.

            The respondent complains that no advocate was appointed for her. In his letter the judicial vicar seems to suggest that the defender of the bond was fully able to defend her interests in the case. But the defender of the bond actually made no argument for the bond. The judicial vicar also writes to the respondent: "Your own response to the Y Tribunal seemed to clearly indicate [...] that you would not be viewed as a contentious participant." We find no such indication in the respondent's reply to the Tribunal of Y.

            20. 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:

            1) the sentence of Tribunal X of 30 April 1991 is irremediably null; the decree of confirmation of 3 May 1991 of the Interdiocesan Appeal Tribunal is therefore also null;

            2) the question of a new proposition of the case does not arise;

            3) if the petitioner wishes to pursue the case, it should be heard before the present Apostolic Tribunal, in first instance.

            The present decree is to be notified to the Apostolic Signatura, and to all concerned, for all the effects of law.

            Given in the Tribunal of the Roman Rota, 11 June 1992.

            Cormac Burke, Ponens

            Thomas G. Doran

            Kenneth E. Boccafola