NEWSLETTER NO. 145 MARCH 2006
1. Address to Rotal Auditors
[Pope Benedict XVI] (28th January, 2006)
2. The Right of the Parties to
Inspect the Acts and its Relation to the Validity of a
Definitive Sentence in a Marriage Nullity Process [Prof.
Augustine Mendonca]
3. Review: "Elements of Proof
in Simulation Cases" by Francis G Morrisey [Paul Robbins]
4. Address of Episcopal
Delegate to 2006 AGM of Interdiocesan Tribunal of Second
Instance [Rt Rev John Jukes, OFM Conv.]
5. Studies in Church Law - a
new periodical [Mgr Gordon Read]
6. Letter concerning the
General Instruction to the Roman Missal & "Celebrating the Mass"
[Fr John Hadley]
7. Response to Fr Hadley's
Letter [Mgr Gordon Read]
8. Dubium concerning c. 638; &
Reply [Rt Rev John Jukes, OFM Conv.]; & Reply to the reply (22nd
January, 2006); & Further comment by Bishop Jukes (25th January,
2006)
On Saturday 28 January 2006 in the Sala
Clementina the Holy Father had his annual meeting
with the Judges, Officials and their Collaborators of the Roman
Rota. It is interesting to compare the press comments on the Pope’s
Address with the actual text of the Address. When the Address was
first given to the press there were headlines such as “Pope urges
speed for nullity cases”; or “Pope shows warmer approach to nullity
than predecessor”. This Editor saw and heard a variety of so called
questions and comments on the Address. However, it took some time
for the official English text to become available. The official
translation was in L’Osservatore Romano on 8 February 2006.
It was quaint to read the official text and then to wonder what text
the press had been commenting upon. It was also interesting to read
that the press comments had played scant, if any, attention at all,
to the Instruction Dignitas Connubii. After all it was this
document upon which the Holy Father was commenting. He probably did
this as an express tribute to his predecessor in whose reign the
Instruction was published.
The Address of the Holy Father commented on the fact that the laity
involved in such processes were less concerned with niceties of the
law than with the reception of Holy Communion. He indicated that
time and time again there had been reference to this matter at the
General Synod on the Eucharist. He also highlighted what is a
completely false (although much mentioned) opposition between the
law and the pastoral concern of the Church.
He points out that love for the truth is the fundamental meeting
point between the law and the pastoral ministry. He stresses again
that no trial is against the other party. The trial is intended to
declare the truth. It is perhaps inescapable that the Holy Father
should refer to his Eighteenth Century predecessor and the
definition of the role of the Defender of the Bond in 1741!
He says “It is nonetheless a grave obligation to bring the Church’s
institutional action in her Tribunals ever close to the faithful.
Beside pastoral sensitivity must be directed towards avoiding
nullity of marriage when the couple seeks to marry, and it must
strive to help the spouses solve their possible problems by finding
a path to reconciliation. That same pastoral sensitivity to the real
situations of individuals must nonetheless lead to safeguarding the
truth and applying the norms prescribed to protect it during the
trial”. (See Document No. I).
The CLSN has already dealt, on several
occasions, with the background to Canon 1598 of the New Code, as
well as with its practical application some twenty years after the
promulgation of the Code. The whole of this is directed towards the
legitimate right of defence of the parties in a nullity case; and
disregard for the provisions of Canon 1598 can result in the nullity
of sentence of the case in question.
All those involved in Tribunal work know the situation of the
violent and abrasive Respondent. This situation gives rise to
problems. There is a need to cite the Respondent in every case; and
this can result in hardship, even harm, for a vulnerable Petitioner.
This may even be the reason why a Petitioner does not continue with
the case. The other problem concerns the ability of both the parties
(here, of course, the Respondent) to read all the evidence in a
case. However, both these elements (the need to cite the Respondent;
and the requirement that the Respondent can read the evidence) are
present ad validitatem. The absence of the last element has
given rise to cases alleging invalidity of sentence at the Rota.
(The existence of the clause in Canon 1598 about a particular act
not being shown to the Respondent, or the parties, has not so far
been deeply explored; (cf. also Dignitas Connubii article
234).
Of course, into Dignitas Connubii has been woven the
particular disposition that in cases of great difficulty and danger,
the parties are not shown the acta; and the acta is
shown only to the Advocates for the parties; but with the Advocate
taking an oath of secrecy (article 234); and the Advocates being
bound by a serious obligation not to hand over the acts to the
parties. However, these new provisions have not yet been tested by
Rotal Decisions. Rotal Decisions so far have decided upon cases
where the acta, as such, has not been available to the
Respondent.
It should also be said that apart from violence anticipated from
(often) a psychopathic Respondent, another concern of Tribunals has
been the civil law situation (i.e. where evidence from the witnesses
might be used as a basis for suing a party or a witness or even a
Tribunal. However, (certainly in this country) it is quite clear
that evidence given in good faith in Tribunal procedures cannot
cause actions against witnesses, the party or the Tribunal itself.
Professor Augustine Mendonça has written about some matters relating
to nullity of sentence through a denial of the right of defence
(usually) to the Respondent. He has analysed two rotal cases (both
of them in several instances and hearings). These two cases are the
Halifax-Edmundston case of 17 May 1988 and the Camden-Newark case
(See Document No.II which reprints the article of Professor Mendonça
published in Studia Canonica, vol.33/2 1999. The Editor of CLSN
thanks the Editor of Studia Canonica and Professor Mendonça for
permission to reproduce the article.
Father Frank Morrisey, OMI, gave a paper
on the above topic in May 2005 in North Dakota; and this was then
reprinted in the Newsletter of the Canon Law Society of Australia
and New Zealand. It will be recalled that Paul Robbins of the
Liverpool Tribunal gave a paper to the Northern Province some years
back on the matter of Total Simulation. Consequently, it seemed
appropriate to ask him to comment on the Morrisey paper (although
the latter goes into the matter of Partial Simulation as well.
Father Morrisey does not extend his review to include the vista
which was drawn by Paul Robbins. However, an area which is of
considerable interest in the Morrisey paper concerns the intention
contra bonum fidei. Prior to the wedding day the partners are
not married and are not “bound to fidelity in the same way as they
are after the exchange of consent”. Since consent is an act of the
will “surely the consent includes the requirement of a will to be
faithful?” The question is then asked: If the act of the will on the
wedding day does not positively include those elements essential for
marriage, including the will to be faithful, how can there be a
valid consent? (See Document No. III).
There is only one interdiocesan Tribunal
in the country, and it acts as the Second Instance
Court for the Province of Southwark (comprising the Dioceses of
Southwark, Portsmouth, Arundel & Brighton and Plymouth). Besides
having a President it also has an Episcopal Delegate. The Episcopal
Delegate is Bishop John Jukes, OFM. Conv. There is an Annual General
Meeting of the Interdiocesan Tribunal which is addressed by the
Episcopal Delegate. The paper given by Bishop Jukes at the AGM is at
Document No. IV.
Perseverance and hard grind, as well as
a full measure of optimism, must have been assembled in floods and
centred around the editorial board of the new periodical from
Bangalore: Studies in Church Law. But, of course, the greatest
admiration must be paid to the Editor, Father Victor D’Souza. The
periodical had its birth at the Centre of Canon Law Studies at St
Peter’s Pontifical Institute in Bangalore, which was erected in
1988. Studies in Church Law represents a milestone in the growth and
development of St Peter’s Institute. The Editorial Board positively
glitters with names from the canonical firmament; and the array of
titles of articles and authors in this first issue is guaranteed to
catch even the meanest eye. The Editor, his Assistants and the Board
are warmly to be congratulated on this remarkable product. Monsignor
Gordon Read has given an overview; and takes a closer look at some
of the contents. (See Document No. V).
The September 2005 (No.143) issue of the
Canon Law Society Newsletter had a comment and analysis on the above
documents by Monsignor Read. Encouragingly, this drew a comment from
Father John Hadley, the parish priest of Narborough in
Leicestershire. These comments were put to Monsignor Read; and both
items have now been included as Document No. VI (a) and (b)
Interpretation of An interesting exchange took place over the Canon
638 §§3 & 4 interpretation of Canon 638 §§ 3 &4. This has been
brought to the attention of the CLSN by Bishop John Jukes who was
originally approached by a Canonist involved in this matter of
interpretation; particularly to do with the Constitutions of an
Institute of Diocesan Right. Following the dubium to Bishop Jukes (2
January 2006), he replied on 11 January 2006. However, this did not
seem to satisfy his interlocutor and hence the Bishop was approached
again on 22 January 2006; and the Bishop made a further response on
25 January 2006. (See Document No. VII).
The President of the US Bishops’
Conference is asking Diocesan Bishops to become involved in
supporting a Federal Constitutional amendment concerning marriage.
The amendment is to define marriage as “consisting only of a union
between a man and a woman”. The Protection of Marriage Amendment
will be introduced in the US Senate in June 2006. (Source: Zenit 4
April 2006: ZEO6040423).
The 41st Canon Law Society of Great
Britain and Ireland Annual Conference will take place in the Sligo
Park Hotel, Sligo, between 15 and 19 May 2006. Amongst the papers at
the Conference there will be one given by Father John Kennedy of the
Congregation for the Doctrine of the Faith on Priviledge of the
Faith Cases; and by Father Augustine Mendonça on Dignitas
Connubii.
The 40th Annual Conference of the
Society of Australia and New Zealand will take
place between 18 and 21 September 2006 in Canberra ACB.
The 41st CCLS Convention will take place
in Montreal, Quebec between 2 and 5 October 2006.
The Convention of the CLSA for 2006 will
take place between 9 and 12 October in the Renaissance Worthington
Hotel, Fort Worth Texas. This hotel was where President John F
Kennedy spent his last night before his assassination in 1963.
In January, Bishop Charles Henderson was
diagnosed with Cancer; and eventually he had to be moved to St
Thomas’ Hospital. Despite his worsening condition, a friend drove
him the short distance from the hospital to the Consecration of the
newly appointed Auxiliary Bishops, Patrick Lynch and Paul Hendricks.
The hospital brought forward his radiotherapy treatment to enable
him to be present. Eventually, as his conditioned worsened, he
returned to his beloved Blackheath and died there on 10 April 2006
at Park House, four days short of his 82nd birthday. Bishop Charles,
apart from having had a very distinguished life in his own Diocese
of Southwark, was a well known Canon Lawyer. The news of his death
came just as this number of the CLSN was being completed. A formal
obituary will appear in the June number of CLSN.
Hearty congratulations to Monsignor
Gordon Read who was appointed a Domestic Prelate in July 2005.
