Folia Theologica et Canonica 6. 28/20 (2017)

IUS CANONICUM - Kurt Martens, Hierarchical recourse as a dialogue between particular church and universal Church? Difficulties, challenges and opportunities

HIERARCHICAL RECOURSE AS A DIALOGUE BETWEEN PARTICULAR CHURCH... 81

The idea of a specific procedure, aimed to protect subjective rights and elaborated in principle seven, was to avoid every suspicion of arbitrariness. Therefore, appeals should be possible so that everyone who feels that his right has been violated by a lower authority can appeal to the higher authority. A true need was felt for the creation of administrative tribunals. Furthermore, legislative, executive (or administrative), and judicial power should be better distinguished and it should be determined what body exercises what power. The new Code should contain rules on administrative procedure and on the nature of the cases that can be brought before the administrative tribunal.

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 - canons 149 § 2 and 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, even before the new code would be ready to be promulgated. However, the idea was abandoned in favour of the promulgation of one complete and revised Code of Canon Law.12 13

Much can be said about the formulation of principles six and seven. They, too, must be seen in the correct context. The analysis of Zenon Grocholewski offers some perspectives.1'' He focuses on principle 7, the most concrete one with regard to the protection of rights. When the principles were approved, the protection of rights was at that moment insufficient. This idea was shared by numerous canonists, and the necessity for establishing a network of administrative tribunals was felt.14 The statement is based upon his analysis of the seventh principle, which states that the new Code of Canon Law should contain the rules for appealing administrative decisions to those tribunals.15 The proposal contained in the seventh principle is mainly due to two considerations: ( 1 ) the lack of possibilities for the faithful to have recourse against administrative decisions, and (2) the strong conciliar emphasis on the dignity of the human person and

12 For more details, see Martens, K., The Law that Never Was, 178-222.

13 Grocholewski, Z., Il sistema dei ricorsi e la giurisdizione dei tribunali amministrativi, in Ca- nosa, J. (a cura di), ! principi per la revisione del codice di diritto canonico. 461-499.

14 Grocholewski, Z., Il sistema dei ricorsi e la giurisdizione dei tribunali amministrativi, 463.

15 Grocholewski, Z., Il sistema dei ricorsi e la giurisdizione dei tribunali amministrativi, 463- 464.