DEFENDER OF THE BOND. - The office of the d. of the b., together with that of the promoter of justice, who intervenes in contentious and penal cases of public interest, may be said to be analogous to that of the public prosecutor in a civil judicial system: moreover, such offices or organs cannot be considered in canon law as emanations of the executive power, since for the law of the Church the principle of a clear separation of powers does not appear to hold.
The d. of the b. is a special organ created for the purpose of providing, as the word says, for the defense of the bond in cases concerning marriage (nullity or dispensation from a marriage ratified and not consummated) and Holy Orders.
The intervention of the d. of the b. in the trial in the aforesaid cases is obligatory and, in its absence, the process is null, as regards the acts performed without the prior citation of the same d. of the b. (CIC, can. 1587). This nullity can, however, be healed in the case where the d. of the b. who was not cited intervenes spontaneously in the trial.
Note further that to the d. of the b. who, though cited, has not appeared, the acts performed in his absence must be communicated, so that he may put forward the deductions and conclusions that he deems appropriate.
According to can. 1588, a single person may attend to the functions of d. of the b. and promoter of justice, unless the cumulation is prohibited or is not practically feasible, as happens in the case where the promoter of justice impugns the validity of the marriage. The activity of the d. of the b. (unlike that of the promoter of justice) is a bound activity, since he is always obliged to conclude pro validitate vinculi, with the reservation, it is understood, of the promoter of justice's right to request, if need be, for reasons of public interest, that the nullity of the bond itself be declared instead. Conversely, over the d. of the b. the bishop exercises none of that auctoritas which is proper to him in regard to the promoter of justice (cf. can. 1954 § 3 nn. 1, 2 and 3).
Among the duties of the d. of the b. is, besides the fundamental one of doing whatever is necessary for the defense of the bond, that of lodging an appeal against the first sentence declaring nullity (even if preceded by another that has rejected the plea of nullity). He may further appeal from a sentence pro nullitate that confirms another sentence of the same nature.
The d. of the b. (like the promoter of justice) is appointed by the bishop, who selects him from among the priests of the diocese who have the requisites prescribed by can. 1589 (unblemished reputation, knowledge of canon law and gifts of prudence and justice). Such appointment may be made either in a general way for any proceeding in which he must take part, or may be limited to individual proceedings.
See, moreover, on the duties of the d. of the b. relating to the conduct of the process, the norms contained in cann. 1672, 1743, 1759, 1773, 1830, 1863, 1968, 1969, 1981, 1984 and 1991. They concern both the investigative phase (such as, for example, the obligation to be always present during the interrogation of the parties and during the examination of witnesses and experts, and that of presenting to the judge the interrogations to be put to the parties and to the witnesses) and the hearing (such as, for example, the obligation for the d. of the b. to present his own deductions or animadversions).
The d. of the b. has the right to be heard last in the discussion of the case and has the faculty to continue, on his own account, when the public interest requires it, proceedings that have lapsed through peremption owing to the contumacy of the plaintiff (can. 1850) and to lodge a complaint of falsity against sentences issued without observance of the prescribed forms (can. 1897 § 1).
The d. of the b., just like the promoter of justice, may be removed from office for just cause, by the bishop (can. 1590 § 2), and is furthermore liable to the penal sanctions provided by can. 1625 for judges.
In cases of dismissal from the process of perpetual vows for an exempt clerical religious order, functions analogous to those of the d. of the b. are exercised by the defender of the religious profession (CIC, cann. 655 § 2 and 1589 § 2).
Bibliography8 works
Fernando Della Rocca