Protection of Rights: Experiences with Hierarchical Recourse and Possibilities for the Future

PROTECTION OF RIGHTS: EXPERIENCES WITH HIERARCHICAL RECOURSE AND POSSIBILITIES FOR THE FUTURE Kurt Martens* Introduction One of the most eagerly awaited innovations to be inserted in what would become the 1983 Code of Canon Law was, without any doubt, the proposed law on administrative procedures, hierarchical recourse, and administrative tribunals. Even before Blessed Pope John XXIII announced on January 25, 1959 that he would not only convoke an ecumenical council, but would also organize a synod for the diocese of Rome and revise the 1917 Code of Canon Law,1 canon lawyers had pointed to the lack of protection of rights in the Church’s legal system, complaining especially about excessive discretionary power exercised by the executive branch.2 It should be noted, however, that an efficient system of protection of rights against the executive branch had existed in the Church for about 800 years: the extrajudicial appeal or appellatio extrajudicialis , whereby an aggrieved party could appeal an administrative decision to a judge or tribunal. This form of protection of rights was forThe Jurist 69 (2009) 646–702 646 * Associate Professor, School of Canon Law, The Catholic University of America, Washington D.C. 1 John XXIII, Sollemnis Allocutio ad Emos Patres Cardinales in Urbe praesentes habita, die XXV ianuarii anno MCMLIX, in coenobio Monachorum Benedictinorum ad s. Pauli extra Moenia, post Missarum sollemnia, quibus Beatissimus Pater in Patriarchali Basilica Ostiensi interfuerat, AAS 51 (1959) 65–69, esp. 68: “Pronunciamo innanzi a voi, certo tremando un poco di commozione, ma insieme con umile risolutezza di proposito, il nome e la proposta della duplice celebrazione: di un Sinodo Diocesano per l’Urbe, e di un Concilio Ecumenico per la Chiesa Universale. . . . Esse condurranno felicemente all’auspicato e atteso aggiornamento del Codice di Diritto Canonico, . . .”. 2 For examples of such concerns, see Corrado Bernardini, “Problemi di contenzioso amministrativo canonico specialmente secondo la giurisprudenza della Sacra Romana Rota,” in Acta Congressus Iuridici Internationalis. VII saeculo a decretalibus Gregorii IX et XIV a codice Iustiniano promulgatis, Romae 12–17 novembris 1934, IV (Rome: Pontificium Institutum Utriusque Iuris, 1937) 357–432; Ignatius Gordon, “De iustitia administrativa ecclesiastica tum transacto tempore tum hodierno,” Periodica 61 (1972) 296–298; Klaus Mörsdorf, Rechtsprechung und Verwaltung im kanonischen Recht (Freiburg im Breisgau: Herder, 1941) 188–189. mally abrogated in 1908. We will get back to this toward the end of our contribution. Before the actual revision process started, ten guiding principles for the revision of the Code of Canon Law were approved.3 Their primary goal was to ensure that the new code would be more than a technical revision of the 1917 Code of Canon Law: the new code would first and foremost reflect the new ideas of the Second Vatican Council. Two of these guiding principles deal with the protection of the rights of the faithful and are thus important for the purposes of this contribution. One of the projected innovations of the new code was an elaborate administrative procedure, including the establishment of administrative tribunals . The initial expectations were quite high; however, the final outcome of the revision process in the area of administrative procedures and tribunals was rather disappointing for many canonists: the projected administrative tribunals were not included in the Code of Canon Law. Only two references—canon 149 § 2 and canon 1400 § 2—are the sole remaining witnesses of a proposed sophisticated system of protection of rights, combining hierarchical recourse and appeal to an administrative tribunal. We will not discuss in detail why the proposed elaborate administrative procedure was notably downsized. Pope Paul VI had the intention to promulgate ad experimentum the new law on administrative procedures, evenbeforethenewcodewouldbereadytobepromulgated.Theplanwas almost realized: the motu proprio was ready in 1973, but for two details: the signature of the Holy Father, and the date of promulgation.4 We will first look at the 1967 synod of bishops and the approval of the ten principles for the revision of the Code of Canon Law. Then we will turn to the current law on hierarchical recourse or recourse against administrative decrees (cc. 1732–1739). We will also consider the procedure before the second section of theApostolic Signatura, and especially its new lex propria. We will next consider the...