The last two weeks focused on the sixth principle that influenced the 1983 Code, namely, defining and safeguarding the rights of persons in the Church. Today’s post begins the seventh principle, namely, the protection of subjective rights. The seventh principle continues the sixth.
The seventh principle states: “In order that such objectives may be appropriately implemented, it is necessary that particular attention be given to the organisation of a procedure which envisions the protection of subjective rights. Therefore, in renewing the law, attention should be paid to those elements which are most especially lacking in this area, i.e. administrative recourses and the administration of justice. To achieve this, it is necessary that the various functions of ecclesiastical power be clearly distinguished, i.e. the legislative, administrative, and judicial functions. What individual functions are to be exercised by which governmental organs is also to be defined.”
The protection of subjective rights fits into the spirituality of canon law because when subjective rights are protected it improves respect for human dignity and vocation, increases growth in the formation and freedom of conscience, increases access to pastoral care and sacramental support, leads to the cultivation of humility and obedience in truth, promotes ecclesial communion, improves witnessing to the gospel of justice and love, enhances inner peace and healing, deepens one’s relationship with God, and ultimately, improves the journey of holiness.
There are several dimensions of this seventh principle, all geared towards protecting subjective rights.
First, ecclesiastical power is to be distinguished. Hence, unlike the 1917 Code, the 1983 Code clearly distinguishes ecclesiastical power into legislative, executive, and judicial (Can. 135). Legislative power concerns the development, promulgation, and interpretation of laws. Executive power concerns ordinary administration or the application of the law. Judicial power concerns the power judges use to resolve controversies and make decisions, based on law and fact, which are binding on the parties involved in the case. Second, the administration of justice concerns the exercise of judicial power, namely the formal resolution of disputes through ecclesiastical tribunals (courts) in accordance with judicial procedure.
Third, recourse against administrative decrees is the ordinary means by which a person aggrieved by a singular administrative act can seek its correction, suspension, or the repair of any damage it causes. Decrees issued by the pope and ecumenical council are excluded (Can. 1732). It could be a hierarchical recourse when a petition is made to a higher ecclesiastical authority requesting the revocation, amendment, or nullification of an individual administrative act issued by a lower authority. Unlike a judicial appeal made to a tribunal of a higher instance concerning a judicial act (e.g, a sentence of a tribunal), a recourse is an administrative appeal directed to a hierarchical superior concerning an administrative act.
Canon 1733 provides that one who considers oneself to be aggrieved by a decree should try as much as possible to avoid contention with the author of the decree. Instead, they are to take care to seek an equitable solution through mutual consultation, especially through mediation and the efforts of wise persons, to avoid or settle the controversy (§1). The Episcopal Conference can require that each diocese establish a permanent office or council for this purpose. In the absence of this, the diocesan bishop can also do the same (§2).
Before one proposes a recourse, the person must request in writing the revocation or amendment of the decree from its author. Proposing this petition also means that the person is requesting a suspension of the execution of the decree (Can. 1734 §1). This request must be made within the peremptory time limit (else the person forfeits the opportunity to do so) of ten days from the legitimate notification of the decree (Can. 1734 §2). These norms do not apply when it concerns recourse to the bishop against decrees issued by authorities subject to him or when a recourse has already been made (Can. 1734 §3).
The author of the decree, through a new decree, can reject the petition or amend the earlier one. The time limit to make a recourse runs from the notification of the new decree. If the author does not issue a new decree within thirty days, the time limit for making a recourse begins to run from the thirtieth day (Can. 1735).
Canon 1737 §1 stipulates that anyone who contends to have been injured by a decree can make recourse for any just reason to the hierarchical superior of the one who issued the decree. The recourse can be proposed before the author of the decree, who must immediately forward it to the competent hierarchical superior. The recourse must be done within fifteen days, else the person forfeits the opportunity to make the recourse. The time begins to run from the day when the person was notified of the decree (Can. 1737 §2).
The hierarchical superior varies according to the matter in question, the author’s status, and whether it concerns institutes of consecrated life or societies of apostolic life. Hence, the superior could be the supreme moderator of an institute or society, the diocesan bishop or the dicasteries of the Holy See. The Apostolic Signatura only hears recourses against decisions of dicasteries (Praedicate Evangelium, 197).
One must add that the metropolitan archbishop is not the hierarchical superior of suffragan bishops in his province, in the sense required for administrative recourse, because a metropolitan cannot revoke, amend, or suspend a decree of a suffragan bishop. The reason is that a hierarchical superior must possess executive power over the author of a decree, that is, someone who can change, revoke or nullify the administrative act in question. The metropolitan has only limited oversight over suffragan dioceses in his province and does not have the power of governance in them, except as determined by law (Can. 436). The same applies to the president of the episcopal conference (Can. 455 §4). Unless there is a specific and special mandate to intervene, it also applies to the apostolic nuncio, who is “to assist bishops by action and counsel while leaving intact the exercise of their legitimate power” (Can. 364, 2°).
The person making the recourse always has the right to use an advocate or procurator (Can. 1738). After considering the recourse, the hierarchical superior can do any of the following: confirm the decree, declare it invalid, rescind or revoke it, amend it, substitute it or obrogate (replacing it with a new one contrary to the former) (Can. 1739).
May God continue to help us🙏🏾
K’ọdị🙋🏾♂️
