AT times, I have been approached by Catholic faithful citing some grievances against fellow Catholics—fellow laypersons, or religious, or at times even clerics. What brings them to consult a priest is oftentimes their desire to resolve the matter amicably—intra Ecclesia—rather than suing in a civil court. What they don’t know is that even within the Church, the canonical mechanism exists for legitimate redress.
After exhausting the extra-judicial means to resolve a con¬flict, the faithful—or canonical juridic person—who esteems that a legit¬imate interest has not been satisfied, can exercise his right to action by presenting his cause before a judicial tribunal. What follows is a series of acts aimed at obtaining a reso¬lutory decision from the tribunal. This is the judicial pro¬cess.
1. The Canonical Judicial Process (Processus)
In Canon Law—similar to civil law—a process is a series or succes¬sion of formal juridic acts, carried out before a tribunal of justice, by virtue of a pretension—understood as a claim, formu¬lated according to form and with fumus boni iuris—by a subject confronted by another, aimed at obtaining in a binding way the declaration or acknowledgment, juridical constitution, or the im¬position of a conduct, in relation to persons and matters subject to the jurisdictional power of the Church. This exhaustive definition attempts to capture the following essential elements of the process.
a) Procedural: The process entails a established way of proceeding (modus procedendi), wherein the series of juridic acts follow each other in an ordered way—i.e., some are necessary an¬tecedents, while others are obligatory consequences.
b) Processal: These acts are processal inasmuch as they are celebrated before a tribunal of justice and proceed in a con¬tentious manner.
c) Fumus boni iuris (an apparent legal sense): This series of acts starts with one inchoative act of formal claim—commonly called the libellus or charge—among the requisites for which is that it have founda¬tion in law (cc.1504, 1° and 1505, §2, 4°).
d) Confrontational: The process is always confrontational—i.e., it is between parts (also called parties) who do not have to be actually against each other, but are formally positioned confrontationally with respect to each other. This contradictorium is at the core of the process and its presence in each stage of the process is the theoretical basis for its claim to the truth—i.e., such contradictorium is what enables the court, fallible as it may be, to arrive at the moral certainly of having reached the truth of the matter by the time of sentencing, since both parts would have exerted everything possible to demonstrate the two sides of the contention.
e) Aimed at getting a judgment: The series of acts which constitute a process pretend to obtain from the judicial tribunal a decision which binds the opposed parties, and—in some cases and in an indirect and conditional manner—even third parties.
f) The content of the decision can be of different sorts, con¬gruent with the content of the original claim of the actor or plaintiff in his charge or libellum. Thus the decision can be:
(i) Declarative—merely declaring juridic facts or rights pre-existent to the process (c.1400, §1, 1°).
(ii) Constitutive—constituting new rights or juridic situations, by creating, modifying or extinguishing pre-existing juridical phenomena.
(iii) Condemnatory—imposing certain conducts or duties (c.1400, §1, 2°), e.g., penalties.
g) Limited Scope: On the one hand the canonical process is limited to persons and things subject to the jurisdictional power of the Church (cc.1400-1401). On the other hand, it is also limited in scope to that aspect of juridical reality which is defined in the dubium or litiscontestatio. In other words, the process will focus only on what the Tribunal has established, early on in the proceedings, to be the bone of contention, avoiding other issues—or even the introduction of certain evidences—as irrelevant to the particular case.
2. The Basic Elements of the Process
In a schematic way, we can consider five basic ele¬ments of the process, which comprise the subject matter of Part I of Book VII (on Procedural Law) of the Code of Canon Law:
1) Material Object: The matters that can, in general, be addressed by a tribunal (c.1400).
2) Active Subject: The judge or tribunal before whom the case is presented. Can.1401 states the general princi¬ple that the Catholic Church does indeed have the right to hear certain cases; and cc.1404-1475 (Titles I-III) treat this matter more in detail.
3) Form: The procedure or solemnities that are followed in the adjudication of certain matters. Can.1402 states the general rule.
4) Passive Subject: The petitioner or respondent whose case is being heard. This matter, along with the procurators and advocates for the parties, is treated in cc.1476-1490 (Title IV).
5) Formal Object: The precise claim or counter-claim made by the parties in a particular process. This matter is treated in cc.1491-1500 (Title V).
3. Processal Principles in General
As a specific instrument for the establishment of justice in any juridic order, we can speak of the process being informed by the following principles.
a. Oral vs. Written System
1) Written Process. This arose in Europe from the common law (ius commune)—based on Roman Law—moved by the desire to foster impartiality on the part of the judge: to minimize direct contact between the judge and the parts.
2) Oral Process. This was the opposite tendency, moved by reasons of expeditiousness, which became the ordinary way.
3) Conjugation of both principles in the modern process. The modern process gives preference to one and the other princi¬ple depending on its aptness for the specific phase of the pro¬cess:
a) There is a preference for the written mode in the more complicated phases requiring accuracy of documentation:
(i) Petition—since it is usually complicated.
(ii) Testimonies—are taken down in writing, since the sentence (and possible appeal) has to be based on them.
b) On the other hand, there is a preference for the oral mode where immediacy bet¬ween the judge and the parts or witnesses is desirable—i.e., for agility and judicial accuracy:
(i) Interrogation (examination and cross-examina¬tion) of witnesses.
(ii) Presentation of proofs.
b. Principles Relative to the Processal Initiative. We can distinguish three levels:
1) Opening of the Process. The instance of the part in¬choates the process; the opening of the process ex officio does not happen in Canon Law (c.1501).
2) Impulse of the Process. The impulse or propelling of the pro¬cess through its different stages belongs, in principle, to the parts, who should be the ones to propel the process (c.1452, §1). However, in cases that affect the public good, the judge ex officio should propel the process so that it does not lapse.
3) Presentation of Proofs. In principle, the parts should present the proofs. However, the judge should make up for any negligence of the parts, both in the presentation of proofs and in the interposi¬tion of exceptions.
c. Principles of Preclusion and Concentration
1) Principle of Preclusion. This refers to the extinction of a facultative right (faculty) to carry out a processal act once the time limit or period for it has lapsed, and the process has moved on to the next phase. A part who does not make use of a faculty within its time limit looses the right to exercise it.
2) Principle of Concentration. This refers to the tendency to con¬centrate all the processal acts in one audience (so as to coun¬teract the principle of preclusion).
d. Principle of Publicity and Secrecy
1) Principle of Secrecy. The subjects and the acts in the trial are bound by secrecy with respect to third parties who have no legitimate interest in the cause (c.1455).
2) Principle of Publicity. An ecclesiastical trial is much more private regarding third parties than are most civil trials—to which private citizens and the press, and sometimes even tele¬vision cameras, have access (c.1470). For the most part, ecclesiastical trials are held in closed chambers, with just the judge (or tribunal) and a notary present, while the parts and witnesses make their deposition one by one.
Sunday, August 16, 2009
Friday, August 14, 2009
The Canonical Process (Part II)
At times, I have been approached by Catholic faithful citing some grievances against fellow Catholics—fellow laypersons, or religious, or at times even clerics. What brings them to consult a priest is oftentimes their desire to resolve the matter amicably—intra Ecclesia—rather than suing in a civil court. What they don’t know is that even within the Church, the canonical mechanism exists for legitimate redress.
After exhausting the extra-judicial means to resolve a con¬flict, the faithful—or canonical juridic person—who esteems that a legit¬imate interest has not been satisfied, can exercise his right to action by presenting his cause before a judicial tribunal. What follows is a series of acts aimed at obtaining a reso¬lutory decision from the tribunal. This is the judicial pro¬cess.
4. Kinds of Processes
a. Ordinary Processes
There are two types of ordinary processes contemplated in the CIC, conceived in their regulation with reference only to formal categories and independently of the juridic matter, which have to be submitted to them. Thus, both types of processes can be used for all types of objects of litigation.
1) Written Contentious Process, which has the following characteristics:
a) Written, as the name implies, which means that all the elements of the process are in written form.
b) Divided into preclusive periods, each with a time limit. Certain processal acts can only be carried out within a given period, since the subsequent period offers other processal possibilities (cc.1501-1655).
2) Oral Contentious Process, which is characterized by the following:
a) Predominantly oral, although there are some conces¬sions to writing, especially in the introduction of the cause (c.1658).
b) Concentration of the processal confrontation in one session—or in a few if one is not enough—in the presence of a tribunal as designated by cc.1661 and 1662. This session is called an audience, and is regulated by the cc.1656-1670 (aside from many canons in the regulation of the written process, which are also applicable to the oral one).
c) More agile and rapid process, and therefore more economical.
d) Less thorough than the written process. Hence, the CIC excludes from this type of process the causes of matrimonial nullity (c.1690).
e) Always celebrated with a single judge in the first instance (c.1657). Thus, causes that need to be heard by a col¬legiate tribunal—like the cause of matrimonial nullity—are ex¬cluded from the oral contentious process.
b. Special Processes
Part III of Book VII of the CIC designates with the term special processes those types of processes that receive special regulation by virtue of the matter, which constitute the object of such processes. The special regulation aims at offering the peculiar mat¬ter in each case a specific and suitable treatment to facilitate a more rigid and correct resolution. Examples of special processes are:
a) Matrimonial cases (cc.1671-1707).
b) Nullity of sacred ordination (cc.1708-1712).
c) Penal processes (cc.1717-1728).
d) Reclamation of damages (cc.1729-1730).
5. The Pastoral Character of the Judicial Function in the Church
The Second Vatican Council, in Lumen Gentium n.27, at the same time that it teaches that Bishops have the sacred right before men, and duty before God, to judge within their respective competencies, also declares that to them is entrusted fully the pastoral function—i.e., the habitual and daily care of their flock. No ecclesial function is excluded from this principle of power-service which belongs to the Hier¬archy. This includes the judicial function.
At first glance, there seems to be two divergent principles bearing on the processal activity in the Church:
1st, The Institutional Finality of the Judicial Process—which is directed always to ascertain the truth and to apply justice, regardless of its consequences (cf. the classic personification of judicial justice as a blindfolded woman).
Certainly, the ecclesiastical judge or tribunal cannot violate justice on the grounds of pastoral concern. Thus, for example, he cannot decree the nullity of a prior marriage where there is validity—even for the sake of regularizing an existing union—since that would be to falsify reality. Neither can he disregard procedural norms, since these guarantee the protection of the equality of the parts and the processal options they enjoy.
2nd, Canonical Equity and Salus animarum. The Code, in its last canon—which is at the same time the last canon of the Book De Processibus—clearly declares the paradigm for the conduct of the ecclesiastical judge: with due regard for canonical equity and having before one’s eyes the salvation of souls, which is al¬ways the supreme law of the Church.
Despite the seeming divergence between the strict pretension of the processal activity and the pastoral care of souls, such pastoral concern is shown by the ecclesiastical judge or tribunal in the following:
1) Expeditious Processing—The effort to expedite matters, avoiding that processes take longer than one year in the first instance, or six months in the second instance (c.1453).
2) Flexibility in Processing—The authority given to the Judge to do away with procedural norms which do not affect the validity of acts in the oral contentious process (c.1670).
3) Effort to find a pacific solution—arrived at through consensus preferably before the start of the process or in any moment afterwards but before the sentence is dictated.
4) Care for procedural correctness—of all processal activi¬ty, thereby avoiding falling into procedural nullities.
5) Caution in the investigation prior to penal cases, to protect the good name of the accused (c.1717).
With all the foregoing discussion, it should become obvious to the ordinary faithful that Canon Law indeed has the necessary institutions and mechanisms for the protection of the rights of all the faithful, whether they are laypersons, members of institutes of consecrated life or clerics. What is important at the present time is a greater education on the rights and duties of all the faithful, so that all might indeed work together in harmony, for the upbuilding of the Mystical Body of Christ which is the Catholic Church.
After exhausting the extra-judicial means to resolve a con¬flict, the faithful—or canonical juridic person—who esteems that a legit¬imate interest has not been satisfied, can exercise his right to action by presenting his cause before a judicial tribunal. What follows is a series of acts aimed at obtaining a reso¬lutory decision from the tribunal. This is the judicial pro¬cess.
4. Kinds of Processes
a. Ordinary Processes
There are two types of ordinary processes contemplated in the CIC, conceived in their regulation with reference only to formal categories and independently of the juridic matter, which have to be submitted to them. Thus, both types of processes can be used for all types of objects of litigation.
1) Written Contentious Process, which has the following characteristics:
a) Written, as the name implies, which means that all the elements of the process are in written form.
b) Divided into preclusive periods, each with a time limit. Certain processal acts can only be carried out within a given period, since the subsequent period offers other processal possibilities (cc.1501-1655).
2) Oral Contentious Process, which is characterized by the following:
a) Predominantly oral, although there are some conces¬sions to writing, especially in the introduction of the cause (c.1658).
b) Concentration of the processal confrontation in one session—or in a few if one is not enough—in the presence of a tribunal as designated by cc.1661 and 1662. This session is called an audience, and is regulated by the cc.1656-1670 (aside from many canons in the regulation of the written process, which are also applicable to the oral one).
c) More agile and rapid process, and therefore more economical.
d) Less thorough than the written process. Hence, the CIC excludes from this type of process the causes of matrimonial nullity (c.1690).
e) Always celebrated with a single judge in the first instance (c.1657). Thus, causes that need to be heard by a col¬legiate tribunal—like the cause of matrimonial nullity—are ex¬cluded from the oral contentious process.
b. Special Processes
Part III of Book VII of the CIC designates with the term special processes those types of processes that receive special regulation by virtue of the matter, which constitute the object of such processes. The special regulation aims at offering the peculiar mat¬ter in each case a specific and suitable treatment to facilitate a more rigid and correct resolution. Examples of special processes are:
a) Matrimonial cases (cc.1671-1707).
b) Nullity of sacred ordination (cc.1708-1712).
c) Penal processes (cc.1717-1728).
d) Reclamation of damages (cc.1729-1730).
5. The Pastoral Character of the Judicial Function in the Church
The Second Vatican Council, in Lumen Gentium n.27, at the same time that it teaches that Bishops have the sacred right before men, and duty before God, to judge within their respective competencies, also declares that to them is entrusted fully the pastoral function—i.e., the habitual and daily care of their flock. No ecclesial function is excluded from this principle of power-service which belongs to the Hier¬archy. This includes the judicial function.
At first glance, there seems to be two divergent principles bearing on the processal activity in the Church:
1st, The Institutional Finality of the Judicial Process—which is directed always to ascertain the truth and to apply justice, regardless of its consequences (cf. the classic personification of judicial justice as a blindfolded woman).
Certainly, the ecclesiastical judge or tribunal cannot violate justice on the grounds of pastoral concern. Thus, for example, he cannot decree the nullity of a prior marriage where there is validity—even for the sake of regularizing an existing union—since that would be to falsify reality. Neither can he disregard procedural norms, since these guarantee the protection of the equality of the parts and the processal options they enjoy.
2nd, Canonical Equity and Salus animarum. The Code, in its last canon—which is at the same time the last canon of the Book De Processibus—clearly declares the paradigm for the conduct of the ecclesiastical judge: with due regard for canonical equity and having before one’s eyes the salvation of souls, which is al¬ways the supreme law of the Church.
Despite the seeming divergence between the strict pretension of the processal activity and the pastoral care of souls, such pastoral concern is shown by the ecclesiastical judge or tribunal in the following:
1) Expeditious Processing—The effort to expedite matters, avoiding that processes take longer than one year in the first instance, or six months in the second instance (c.1453).
2) Flexibility in Processing—The authority given to the Judge to do away with procedural norms which do not affect the validity of acts in the oral contentious process (c.1670).
3) Effort to find a pacific solution—arrived at through consensus preferably before the start of the process or in any moment afterwards but before the sentence is dictated.
4) Care for procedural correctness—of all processal activi¬ty, thereby avoiding falling into procedural nullities.
5) Caution in the investigation prior to penal cases, to protect the good name of the accused (c.1717).
With all the foregoing discussion, it should become obvious to the ordinary faithful that Canon Law indeed has the necessary institutions and mechanisms for the protection of the rights of all the faithful, whether they are laypersons, members of institutes of consecrated life or clerics. What is important at the present time is a greater education on the rights and duties of all the faithful, so that all might indeed work together in harmony, for the upbuilding of the Mystical Body of Christ which is the Catholic Church.
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