The 'Ius Defensionis' in 'Mitis Iudex Dominus Iesus'

Abstract

The right of defence is a fundamental human right which cannot but be recognised and integrated within the Church’s procedural system, since its absence would violate one’s right and cause the irremediable nullity of the sentence. So much so that canon 1620, 7o of the 1983 Code of Canon Law states: “A sentence suffers from the defect of irremediable nullity if: … the right of defence was denied to one or the other party.” The Code of Canon Law together with other Papal allocutions, canonical instructions and Jurisprudence of the Roman Rota give particular importance to the right of defence. To this end, Pope John Paul II noted in his 1989 Allocution to the Roman Rota on the right of defence that “[I]t is not the function of positive law to deprive one of the exercise of the right of defense, but to regulate it so that it does not degenerate into abuse or obstructionism, and at the same time to guarantee the practical possibility of exercising it.” Chapter One entitled ‘The right of fair hearing (ius defensionis) in the canonical process for a declaration of nullity’ delves into the importance in ascertaining that the right of defence is respected by reference to a number of papal allocutions and jurists. This chapter examined the 1917 Code of Canon Law, the 1983 Code of Canon Law as well as the Dignitas Connubii to determine as to whether this right was given its due importance also by making reference to conciliar and post-conciliar documents, papal allocutions and jurisprudence. Furthermore, this chapter analysed the right of action and defence in the various stages of the canonical process. Chapter Two entitled ‘The Reformed Process for the Declaration of nullity of Marriage’ seeks to examine the twenty one canons which were promulgated by Pope Francis and which replaced the previous canons that regulated the procedural norms for the declaration of marriage nullity and established faster canonical procedures, with particular reference to the three major changes, namely; the composition of the ecclesiastical tribunals under the Mitis Iudex Dominus Iesus, the abolition of the double conforming sentences by virtue of which the Mitis Iudex Dominus Iesus replaced the traditional structure of the double confirming sentences and practically decreed its abolition and the re-affirmation of the right to appeal and the ‘Processus brevior’. Chapter three entitled ‘The Ius Defensionis in the procedural reforms introduced by Mitis Iudex Dominus Iesus’ examines whether the right of defence has been negatively affected as a result of the reformed procedures introduced by means of the Mitix Iudex Dominus Iesus which were all brought about with the intention of hastening marriage nullity cases.