Tribunal’s ban on pro-divorce lawyer (2)

Mgr Anton Gauci (Policy Ordered By Holy See, May 7) wrote about the decision to withdraw Deborah Schembri’s warrant to plead before the Ecclesiastical Tribunal.

As a layman both in legal and ecclesiastical terms, I would not, for one moment, dispute Mgr Gauci’s interpretation of the Church’s action in this matter. If he says that the Church was internally obliged to act in the way it did, I am prepared to take his word for it.

But it is important to remember that that is only part of the story. There is another (vastly more important and far-reaching, in my view) side to the issue.

According to the agreement reached between the Church and the Maltese government in the mid-1990s, (a) any person seeking an annulment can opt to appear before an ecclesiastical tribunal and thus force the other party to appear there as well, and (b) the decisions of the Ecclesiastical Tribunal have an effect in civil law as well. The Church entered into this agreement willingly.

Given this situation, the Church has no right to set unilateral and arbitrary rules about which legal representatives may or may not appear before its tribunals. If it wants to be present in civil law, it has to conform to the norms acceptable in that forum. And, in a non-theocratic and democratic state, it is not even remotely acceptable that people may be barred from appearing before a tribunal on account of their personal beliefs. Any restriction that is not based solely on professional competence and integrity is discriminatory, oppressive and almost certainly in breach of constitutional rights.

Many have asked why nobody has challenged this situation in the appropriate courts. The answer, on reflection, is not that hard to find. It is a legal principle (again, I speak as a layman) that only persons “who have an interest” may plead before the courts. In this case, this means either the couple petitioning for annulment (or one of them) or their lawyer/s.

The petitioning couple, by definition people going through the trauma of a failed marriage, are certainly not going to do something which will immeasurably complicate their case and lengthen it by umpteen years, for a legal principle which they may not even understand.

The lawyer will know that, even if he/she were to win the right to appear it would be, at best, a Pyrrhic victory as there would be 1,000 ways for the tribunal to make his/her life difficult.

The situation cries out for some lawyer who is ready to put the principles of simple justice and fairness before his or her personal interests and test this retrograde and oppressive situation before the appropriate courts. I have faith that such people do exist – they have been responsible for all true reforms.

Will nobody step forward?