Note: Avoiding the requirements of Mitis would not be easy for bishops
If Pope Francis’ Mitis Iudex becomes law it will require, among other things, that arch/bishops personally assess, and in some cases adjudicate, certain kinds of marriage nullity petitions. Now obviously some, perhaps many, prelates will feel (based on their lack of advanced canonical training, and/or their personal indisposition toward juridic work, and/or their concerns for negative implications to their wider pastoral work that having to choose between types of petitions and individual parties in annulment cases will inevitably provoke) inadequate to this task. Already I am hearing, however, that arch/bishops looking to avoid their looming judicial and procedural responsibilities under Mitis may simply dispense themselves from it and/or delegate their responsibilities to others.
I am not so sure.
First, the new duties to be imposed on arch/bishops under Mitis seem plainly judicial (as opposed to legislative or executive) in nature. As a general rule, however, judicial duties in the Church may not be delegated to others. Canon 135 § 3. Note, for example, that tribunal judges are appointed to office and therefore judge cases by ‘proper’, not delegated, authority. Canons 1420-1421. Bishops who are used to delegating executive power in the Church (Canons 136 et seq.) might overestimate their ability to delegate these new judicial responsibilities to others.
Second, Mitis seems plainly to establish a procedure for arch/bishops to follow in regard to processing certain nullity cases. But procedural laws in the Church are generally not susceptible to dispensation. Canon 87 § 1. In light of, moreover, Francis’ express and repeated calls in Mitis that bishops take a direct role in judicial matters, arch/bishops dispensing themselves from the requirements of Mitis would be, to say the least, anomalous.
Third, the Christian faithful have a fundamental right to have their cases judged in accord with law. Canon 221 § 2. It would be difficult, I suggest, to reconcile an arch/bishop’s refusal to accept and judge petitions qualified for same under Mitis with the plain provisions of Mitis itself and with the principles of judicial and procedural canon law reflected in the Code of Canon Law.
As for the expedient to which some prelates loath to act under Mitis might be tempted (namely, that of not ‘feeling’ that this case or that meets the substantive or procedural requirements of Mitis even though, by any honest reading of Mitis, they would so qualify), well that’s a constant problem for the administration of justice in a Church that largely depends on human beings performing their ecclesiastical duties with integrity. I can only respond that Mitis might be flawed law but, as things stand now, it will soon become real law and will bind in the way that real law binds.
All of which boils down to, again: a delay in implementing Mitis must be secured until a much wider pool of qualified and experienced voices are allowed to discuss these and many other issues raised by it.