– Prof. Augustine Mendonca
It was just over a year ago that I received the formal invitation to make this presentation and at the time a tentative title for it was suggested to reflect its intended content, that is, “The Bishop as the Mirror of Justice and Equity in the Particular Church.” The development of events of the recent past in the United States and the world all over made me really uncomfortable with the subject matter and even tempted me to re-consider the topic and to venture into some other aspect of justice and equity in the Church. Despite the emotional reactions engendered in my own psyche by these development, I said to myself, the opportunity given to us to reflect on this issue personally and collectively may help us, canon lawyers, to evaluate or re-evaluate our own consciences in regard to the ministry we are called upon to offer to the people of God who come to us seeking justice and, in many instances, mercy and charity. Therefore, I take this as a challenge and will try to reflect with you some of the theological and canonical principles related to Episcopal ministry which should mirror in all its aspects true justice and equity. The principal hypothesis of my study is that the Church is the mirror of justice and equity because, the Church as the Body of Christ, the Bride of Christ, should reflect the ministry of Jesus, the ministry of redemption, the ministry of God’s justice and forgiving mercy. The Church is a sacrament, a mystery which reveals to us humans God’s redemptive action carried out through the sacrifice of his only son. Any person who represents this Church of Christ cannot but reflect this identity and mission of the Church. Therefore, when a bishop carries out his ministry entrusted to him by the Church, he must mirror true justice and equity in his relationship with his people.
My presentation will be divided into four sections: First, we shall try to understand the meaning of justice and equity in the tradition of the Church. Second, the goal of the Second Vatican Council was to present to the modern world an image of the Church that would be a true reflection of the mission entrusted to it by Jesus. We all are well aware that the ecclesiology presented in conciliar document is essentially different from the one we had known prior to the council. The council certainly embraced the biblical models of the Church rather than the predominantly sociological and civil law or political models advanced by the First Vatican Council. This shift in its self-perception based on the biblical models has forced the Church to
re-evaluate its “own nature universal mission.” The Church has come to the realization of the fact that its essential task is to make Jesus present to and in the world particularly by sharing the redeeming love he has for humanity. In all its actions, the Church must reflect the very person of Jesus Christ. This will be the focus of the second section. Third, the conciliar vision of the Church necessitated a review of the nature and scope of Episcopal ministry. The bishop could no longer be seen as an autocratic monarch whom everybody feared and revered, but one who is a genuine reflection of Jesus, the good Shepherd, who came into our world “not to be served but to serve.” This image of a bishop invariably has practical pastoral and juridical consequences. We shall elaborate on these aspects of Episcopal ministry in the third section. Fourth, the failure on a bishop’s part to incarnate this Christ-like image in his actions will necessarily call into question his commitment to justice and equity. Therefore, in the fourth section, I will discuss some concrete cases which reveal on the bishops’ part real lack of a true sense of justice and equity, which must be the hallmarks of episcopal ministry. This will be followed by some personal reflections on the topic of justice and equity in our own ministry of interpreting and applying the Church’s law to concrete cases.
At this point I would like to share with you something that happened a couple of years ago at a canon law convention where I had to give a paper on a similar topic. The title of the presentation was “The Bishop as father, brother and friend to his priests.” To be very honest with you, the paper was a bit too heavy for the audience because it did not directly concern them, all priests! During the question period someone pointed out that the presentation should have been made to bishop rather than to an audience that consisted mainly of priests. I agreed wholeheartedly with the observation, but added a comment to the effect that the paper could be brought by those present to their bishops for their reflection or it might become useful to those in the audience who might one day become bishops. I have the same feeling today in making this presentation. Our audience is quite similar to the one I had at that meeting excepting this one is much less clerical. It is my hope that we will be able to reflect candidly on the issues discussed in this paper so that we might be able to offer, when called upon, proper advice and guidance to our bishops.
1 – Justice and Equity
I have no doubt that you have heard a lot of learned discourses on the concepts of justice and equity. Permit me to share with you a few reflections on these virtues which should become an integral part of our life and ministry.
Black’s Law Dictionary describes justice as: “Proper administration of laws. In jurisprudence, the constant and perpetual disposition of legal matters or disputes to render every man his due.”1 This purely legal description conveys the classical concept of justice. Justice presupposes subjective rights and appropriate laws that govern their exercise. In a situation of conflict those who apply the law are bound to administer it with fairness and impartiality giving every person his/her due.
1. Black’s Law Dictionary, Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, by Henry Campbell Black, 6th ed., St. Paul, MN, West Publishing Co., 1990, p. 864.
The Catechism of the Catholic Church describes it as a cardinal human “moral virtue.” It consists in the constant and firm will to give their due to God and neighbor. Justice towards God is called the ‘virtue of religion’. Justice toward human being disposes one to respect the rights of every person and to establish in human relationships the harmony that promotes equity with regard to persons and to the common good. The just person, often mentioned in the Sacred Scriptures, is distinguished by habitual right thinking and the uprightness of one’s conduct toward his/her neighbour. “You shall not be partial to the poor or defer to the great, but in righteousness shall you judge you neighbour” (Lev. 19: 15). “Masters, treat your slaves justly and fairly, knowing that you also have a Master in heaven” (Col. 4: 1).2 Justice, therefore, is not something that rests on the pages of learned books, but it is essentially an inner disposition which inclines a person, especially a judge or a person in authority, to respect and to give, in a situation of conflict, what rightfully belongs to someone. When administered fairly, justice becomes the foundation of peace. In his Message for the Celebration of the World Day of Peace 2002, Pope John Paul II made the following insightful statement:
True peace, therefore, is the fruit of justice, that moral virtue and legal guarantee which ensures full respect for the rights and responsibilities, and the just distribution of benefits and burdens. Because human justice is always fragile and imperfect, subject as it is to the limitations and egoism of individuals and groups, it must include and, as it were, be completed by the forgiveness which heals and rebuilds troubled human relations from their foundations.3
The Holy Father ended his message of peace saying, “No peace without justice, no justice without forgiveness.”4 This message quite clearly affirms the principle that in concrete human situations strict justice needs to be blended with mercy and charity. And this, in my opinion, is the essence of true equity.
Black’s Law Dictionary describes equity as: “Justice administered according to fairness as contrasted with the strictly formulated rules of common law […] The term ‘equity’ denotes the spirit and habit of fairness, justness, and right dealing which would regulate the [relationships] between [human beings].”5 This description of equity goes beyond the strict notion of justice justice. Still equity remains within the realm of justice, but it transcends pure legality and empowers a person into applying the law in accord with the concrete circumstances of a given case. It presupposes that at the centre of a case and law there is always a human being who must be judged by taking into account all his/her historical and personal circumstances. The description given by Aristotle seems to express best the meaning of equity (epikeia). In his book I of Rhetoric, Aristotle says:
2. Catechism of the Catholic Church, Revised edition with amendments following the publication of the Editio typical, containing extended subject index and the Reader’s Guide to Themes, Ottawa, Canadian Conference of Catholic Bishops, 1999, no. 1807, pp. 400-401.
3. JOHN PAUL II, Message for the Celebration of the World Day of Peace, 1 January 2002, Vatican City, Libreria editrice Vaticana, 8 December 2001, p. 2.
4. Ibid., p.7.
5. Black’s Law Dictionary, p. 540.
Equity bids us be merciful to the weakness of human nature; to think less about the laws than about the one who framed them, and less about what he said than about what he meant; not to consider the actions of the accused so much as his choice, nor this or that detail so much as the whole story; t ask not what a man is now but what he has always or for the most part been. It bids us benefits rather than injustice conferred; to be patient when we are wronged; to settle a dispute by negotiation and not by force; to prefer arbitration to litigation – for an arbitrator goes by the equity of a case, a judge by the law, and arbitration was invented with the express purpose of securing full power of equity.6
This notion of equity was received into the Roman Law which became the fundamental source for its canonical understanding. In Roman Law, equity was regarded as a virtual rooted in law and it provided relief from the rigidity of positive law; in case of deficiency in the law, it became the suppletory source of law; it sought after a more reasonable or humane solution to strictly legal problems.7 This understanding of equity became part and parcel of ecclesiastical legislation beginning from Gregorian reform through Gratian’s Decretum and then the Decretals.8 In other words, the notion of equity rooted in Roman Law became strongly entrenched in canon law. In his rotal allocution of 8 February 1973, Paul VI alluded precisely to this point, that is, the influence of Roman Law notion of equity on canonical jurisprudence: “In canon law, equity – which Christian tradition received from Roman jurisprudence – is characteristic of its precepts and the norm of their application; an attitude of mind and spirit that tempers the rigor of the law.”9 Then he went on to explain the role of equity in the application of ecclesiastical law as follows:
From its beginning the Church absorbed into its life all that was noble, just and beautiful in societal life and in human aspirations. In this way it made God’s charity shine forth in humanity divinized by the Spirit of love. Equity represents one of the loftiest human aspirations. If societal life requires the determination of human law, nevertheless the norms of law, inevitably general and abstract, cannot foresee the concrete circumstances in which the laws will later be applied. Faced with this problem, jurisprudence has sought to amend, to rectify, and even correct the rigor of the law. This is done through the operation of equity, which somehow embodies human aspirations for a better kind of justice.10
6. ARISTOTLE, Rhetoric, I, 13 [1374a], English translation from W. Rhys ROBERTS, in Jonathan BARNES (ed.), The Complete Works of Aristotle, translated by W.D. ROSS, revised by J. O. URMSON, vol. II Bollinger Series LXXI, Princeton, NJ, Princeton University Press, 1984, p. 2189, Quoted here from Vicente Ruga UY, The Principle of Equity in the Code of Canon Law: An Historical and Canonical Study, JCD diss., Romae, Pontifical Studiorum Universitas a. S. Thomas Aq. In Urbe, 2001, pp. 16-17.
7. See UY, The principle of Equity in the Code of Canon Law, pp. 26-29.
8. For a brief historical summary of these development, see ibid., pp. 43-59.
9. PAUL VI, Allocution to the Roman Rota, 8 February 1973, in AAS, 6591973), p. 99; English translation in William H. WOESTMAN (ed.), Papal Allocutions to the Roman Rota 1939-1994,Ottawa, Faculty of Canon Law, Saint Paul University, 1994, p. 118.
The principle of equity is now an integral part of the Church’s legal system. This development has been frequently acknowledged by recent popes in their allocutions. Thus, for example, in the same rotal allocution cited above, Paul VI described how this principle should be applied by any judge or any ecclesiastical authority in a given situation. He said:
Motivated by canonical equity, the judge will take into account all the promptings of charity and seek to avoid the rigor of the law and the rigidity of its technical expressions. He will avoid the letter of the law that kills by imbuing his intervention with charity that is the gift of God’s freeing and life-giving Spirit. He will take into account the human person and of the demands of a given situation, which may compel the judge to apply the law more severely, but ordinarily they will lead him to exercise it in a more human and compassionate manner. He must take care not only so safeguard the juridic order but also to heal and educate, thus giving proof of authentic charity. The pastoral exercise of judicial power is medicinal rather than vindictive.11
These statements of Paul VI highlight two important juridic principles:
First, there is implicit admission here that legal formulae are ordinarily constructed in an abstract manner and, therefore, they do not foresee every situation involving their application. Hence their intended meaning and applicability should be reflected upon within the context of a concrete case. However, we should note that the principle of equity does not grant any competent authority the so-called free-hand or discretionary faculty for making arbitrary decisions. Rather it should be seen as a virtue which inclines the authority to respond to the intrinsic value of the law being applied to a concrete case. Equity presupposes the existence of a law that is not clear and explicit about a particular matter which is under consideration.
Second, jurisprudence plays a crucial role in amending, rectifying, and correcting the “rigor of the law.” All persons exercising authority in the Church, especially in pronouncing decisions which affect the lives of the Christian faithful, must have a genuine appreciation of the principle of equity and foster it in their hearts. In his very first rotal allocution of 17 February 1979, Pope John Paul II emphasized this point when he said of the ecclesiastical judge: “The ecclesiastical judge, therefore, will not only bear in mind that ‘the primary requirement of justice is to respect persons’ […], but will also look beyond justice and strive for equity and, beyond this, for charity.”12 Therefore, to judge according to “what is just and equitable” is no longer an option but a duty incumbent upon every person who exercises authority in the Church. In other words, the way of “justice and equity” is the way of the Church and of those who represent it.
11. AAS, 65 (1973), p. 101; WOESTMAN, Papal Allocutions to the Roman Rota, p. 120.
12. JOHN PAUL II, Allocution to the Roman Rota, 17 February 1979, in AAS, 71 (1979), P. 424; English translation in WOESTMAN, Papal Allocutions to the Roman Rota, pp. 154-155.
2 – The Church as the Mirror of Justice and Equity
In an article published in 1997, Tarcisio Bertone, the Secretary of the Congregation for the Doctrine of Faith, recounts as episode which is apropos to our discussion. It seems one day he was at St. Peter’s Square in Rome when a woman walked up to him and said: “I have come to know that you are going to Cagliari to give a conference on Justice in the Church. Well, I tell you that there is no justice in the Church!”13 I am sure that all of us can understand the implication underlying this comment. However, it is important to note here that the woman spoke of there being no justice “in” the Church and did not say “the Church is unjust.” What this implies is that it is not the Church as such, the Body of Christ, that is unjust, but those who represent the Church are unjust or even evil. In other words, it is possible for some of us who are entrusted with the ministry of administering justice to be unjust. The council alluded to this fallible aspect of the Church when it said in GS that “down through the centuries there have been among its members, both clerical and lay, some who were disloyal to the Spirit of God,”14 which is certainly true even today!
This candid admission by the Church of its own human nature accords credibility to its teaching and witnessing to the redemptive love of Christ. Despite the sinfulness of its members, the Church, “[p]roceeding from the love of the eternal Father, […] founded by Christ in time and gathered into one by the Holy Spirit,”15 cannot fail in its mission. This saving mission of the Church rooted in its being “the universal sacrament of salvation”16 consists in at once manifesting and actualizing the mystery of God’s love for human beings. Thus the direct object of the Church’s saving mission is every human being. This truth has been frequently emphasized in several conciliar documents, especially in Gaudium et spes. In it we read: “[…] the Council lays stress on the respect for the human person: everyone should look upon his neighbour (without any exception) as another self, bearing in mind above all his life and the means necessary for living it in a dignified way lest he follow the example of the rich man who ignored Lazarus, the poor man.”17 It reiterates this point by saying that in the pursuit of its salvific purpose, the Church not only communicates divine life to people but in a certain sense it casts the reflected light of that divine life over all the earth, “notably in the way it heals and elevates the dignity of the human person […].”18 The council proclaims that this teaching on the dignity of the human person is derived directly from the Gospel. It says:
13. Tarcisio BERTONE, “La Chiesa e I’impegno per la giustizia – legalità, giustizia, moralitrà -,” in La giustizia nella Chiesa: fondamento divino e cultura processualistica moderna, studi giuridici XLV, Città del Vaticano, Libreria editrice Vaticana, 1997, p. 8.
14. See SECOND VATICAN COUNCIL, Pastoral Constitution on the Church in the Modern World Gaudium et spes (=GS), no. 43, 7 December 1965, in Austin FLANNERY (Gen. ed.), Vatican Council II, Vol. I, The Counciliar and Post Conciliar Documents (= FLANNERY I), New rev. ed., Northport, NY, Constello Publishing Company; Dublin, Ireland, Dominican Publications, 1996, p. 945.
15. GS 40; in FLANNERY I, p. 939.
16. SECOND VATICAN COUNCIL, Dogmatic Constitution on the Church Lumen gentium (=LG), 21 November 1964, n. 48; in FLANNERY I, p. 407.
17. See GS 27; in FLANNERY I, P. 928.
18. GS 40; in FLANNERY I, p. 940.
There is no human law so powerful to safeguard the personal dignity and freedom of man as the Gospel which Christ entrusted to the Church; for the Gospel announces and proclaims the freedom of the children of God, it rejects all bondage resulting from sin, it scrupulously respects the dignity of conscience and its freedom of choice, it never ceases to encourage the employment of human talents in the service of God and human being, and, finally, it commends everyone to the charity of all.19
That every human being is the object of the Church’s redeeming mission has been the constant teaching of the Church, especially of universal magisterium. For example, in his encyclical, Centesimus annus, celebrating the hundredth anniversary of the encyclical Rerum novarum of Pope Leo XIII, John Paul II says:
During the last hundred years the Church has repeatedly expressed her thinking, while closely following the continuing development of the social question. She has certainly not done this in order to recover former privileges or to impose her own vision. Her sole purpose has been care and responsibility for man, who has been entrusted to her by Christ himself; for this man, whom, as, the Second Vatican Council recalls, is the only creature on earth which God willed for its sake, and for which God has his plan, that is, a share in eternal salvation. We are not dealing here with man in the “abstract,” but with the real, “concrete,” “historical” man. We are dealing with each individual, since each one is included in the mystery of Redemption, and through this mystery Christ has united himself with each one forever. It follows that the Church cannot abandon man, and that “this man is the primary route that the Church must travel in fulfilling her mission … the way traced out by Christ himself, the way that leads invariably through the mystery of the Incarnation and the Redemption.20
This implication of these conciliar and magisterial statements seems clear, that is to say, at the center of the Church’s mission entrusted to it by Christ is the human being, the only creature of God bearing his “image” or “likeness.” This divine predilection for the human being endows each person with the inalienable right to be treated with respect and dignity. The Church and those who hold positions of authority in it cannot and should not overlook this fundamental truth.
19. GS 41; in FLANNERY I, p. 941.
20. JOHN PAUL II, Encyclical letter Centesimus annus, 1 May 1991, in The Encyclicals of John Paul II, edited with introductions by J. Michael MILLER, Huntington, IN, Our Sunday Visitor, Inc., 1996, p. 643.
From what has been said so far we can conclude that the concepts of justice and equity are intrinsically linked to the dignity of the human person as historically and culturally defined. They are also equally linked to the inviolability of the human person and to the rights and obligations inherent in every person. These fundamental principles derived from natural law and from the Gospel teaching and the Church’s consistent proclamation regarding them, became the focal points for discussion during the revision of both the Latin and Eastern Codes. In fact, the General Assembly of the Synod of bishops made the issue of rights in the Church its principal concern when it published the ten fundamental principles guiding the revision of the Code.21 In his apostolic constitution Sacrae disciplinae leges, John Paul II stressed “that the mutual relationships of the faithful may be regulated according to justice based upon charity, with the right of individuals guaranteed and well-defined.”22
The spirit of the conciliar teaching is clearly reflected in cc. 221 (CCEO c. 24) and 223 § 1 (CCEO c. 26 § 1) which lay down the fundamental principles governing the vindication and defence of one’s rights according to the norms of law. These principles may be summarized as follows:
First, all Christ’s faithful, irrespective of their social or ecclesial status, have certain inalienable rights in virtue of their personhood rooted both in natural law and in ecclesial law by baptism.
Second, nobody has the right to deny or unduly restrict the exercise of those rights without a serious and just cause.
Third, even when an action is considered necessary to curtail the exercise of such rights, Christ’s faithful have the right to defend and vindicate them before the competent ecclesiastical forum in accordance with the law.
Fourth, when judged before a competent court, they have the right to be judged in accord with the provisions of law, to be applied with equity. It is in this principle that we find the blending of justice with equity; and the Church correctly recognizes this as a right.
Fifth, the application of penalties must be done in strict compliance with the norms of law. This implies that the first consideration to be given by the judge in imposing or declaring ecclesiastical penalties is for the well being of the person concerned, without, of course, neglecting the common good.
21. SYNODUS EPISCOPORUM, “Principia quae Codicis iuris canonici recognitinem dirigant a Synodo Episcoporum probata,” 7 October 1967, in Xaverius OCHOA (ed.), Leges Ecclesiae post Codicem iuris canonici editae, vol. III Leges annis 1959-1968 editae, Roma, Commentarium pro Religiosis 1972, no. 3601, col. 5253-5257, especially principles 5, 6, and 7.
22. See JOHN PAUL II, Apostolic Constitution Sacrae disciplinae leges, 25 January 1983, in Code of Canon Law, Latin-English Edition, New English Translation, prepared under the auspices of the Canon Law Society of America, Washington, DC, Canon Law Society of America, 1999, p. xxxi. The English translation of canons used in this study is from this source.
Sixth, a person’s rights are not absolute. They are justiciable only within the context of the common good. Therefore, the law expressly states that, in exercising their rights, Christ’s faithful, both individually and in associations, must take into account the common good of the Church, as well as the rights of others and their own duties towards others.
Any person or institution entrusted with the responsibility of making decisions which involve fundamental human dignity and rights of persons in the Church ought to keep in mind these principles when exercising or fulfilling their functions. This is particularly true of a bishop. It is certainly not an easy task because issues of rights are truly complex. Sometimes we may be correctly tempted to ask: How do we mete out justice and equity in complex cases in which opposing rights and obligations militate against each other? Is it really possible to find justice applied with mercy and compassion in some of the cases we are presently facing?
3- The Bishop as the Reflection of Christ and of the Church
In his intervention at the Tenth General Ordinary Assembly of the Synod of Bishops held last year in Rome, A. M. Ruoco Varela, the Archbishop of Madrid, said that “the reform of the Church and a truly catholic reform if episcopacy have always taken place together in the history of the Church.” He went on to say that this is what happened at Vatican II because at the center of the conciliar teaching is “the theology of episcopacy and canonical and pastoral renewal of the figure and ministry of the bishop in the Church.”23 It was perhaps for this reason that the Second Vatican Council has been dubbed as the “bishops’ council.” In all its aspects, the image of the bishop depicted in the conciliar teachings reflects the image of Jesus, the Good Shepherd.
The Church’s redemptive mission is shared by every baptized person, but in a special way by those who are gifted with the authority to shepherd the people of God. This authority, the council stated, is vested in the supreme pontiff and the bishops, “so that all who belong to the People of God, and are consequently endowed with true Christian dignity, may, through their free and well-ordered efforts towards a common goal, attain salvation.”24 The fullness of the sacrament of Orders received in their episcopal consecration endows the bishops “together with the function of sanctifying, the duty also of teaching and ruling, which, however, of their nature can be exercised only in hierarchical communion with the head and members of the college.” Emphasizing the ontological effect of Episcopal consecration, the council said that “the grace of the Holy Spirit is given, and a sacred character is impressed in such wise that bishops, in a resplendent and visible manner, take the place of Christ himself, teacher, shepherd and priest and act as his representatives (in eius persona).”25
23. See Antonio Maria RUOCO VARELA, “Theologie de I’episcopat et renouveau canonique,” in L’Ossrvatore romano, Edition francaise, 30 octobre 2001, p. 12.
24. LG 18; in FLANNERY I, p. 369.
25. LG 21; in FLANNERY I, pp. 373-374.
After explaining at length the different munera of the bishops, the council stated: “Sent as he is by the Father to govern his family, a bishop should keep before his eyes the example of the Good Shepherd, who came not to be waited upon but to serve (cf. Mt. 20:28; Mk. 10:45) and to lay down his life for his sheep (cf. Jn. 10:11). Taken from among men and oppressed by the weakness that surrounds him, he can have compassion for those ignorant and erring (cf. Heb. 5:1-2). He should not refuse to listen to his subjects whose welfare he promotes as of his very own children and whom he urges to collaborate readily with him.”26
The decree on the pastoral office of bishops in the Church Christus Dominus taught that one of the tasks bishops have is to explain “how high a value, according to the doctrine of the Church, should be placed on the human person, on his liberty and bodily life.”27
In describing his relationship with his people, the decree said that “the bishop should be with his people as one who serves, as a good shepherd who knows his sheep and whose sheep know him, as a true father who excels in his love and solicitude for all, to whose divinely conferred authority all readily submit.”28 These characteristics should shine also in his relationship with his priests. They should be the objects of his particular affection: “He should regard them as sons and friends. He should always be ready to listen to them and cultivate and atmosphere of easy familiarity with them, thus facilitating the pastoral work of the entire diocese.29 The decree paid special attention to those priests who might be in “some kind of danger” or who might have “failed in some respect.” The bishop is to treat them with compassion and be helpful to them.30
After discoursing eloquently on the dignity of the human person in Chapter I of Part One of GS, the council emphasized the role of bishops in promoting and safeguarding human dignity by preaching the message of Christ in such a way that the light of the Gospel will shine on all activities of the faithful. The council urged all bishops to be mindful of building up by their daily behaviour and concern an image of the Church capable of impressing people with the power and truth of the Christian message.31 This message would naturally include the Church’s utmost respect for human dignity and human rights. The bishops have the responsibility of actualizing this message in the real world through their words and deeds.
26. LG 27; in FLANNERY I, p. 383.
27. SECOND VATICAN COUNCIL, Decree on the Pastoral Office of Bishops in the Church Christus Dominus (= CD), 28 October 1965, in FLANNERY I, p. 570.
28. CD 16; in FLANNERY I, p. 572.
29. CD 16; in FLANNERY I, pp. 572-573.
30. Ibid.; in FLANNERY I, p. 573.
31. GS 43, in FLANNERY I, pp. 944-945.
In accord with directive of the council stated in Christus Dominus 44, the Congregation for Bishops promulgated the Directory on the Pastoral Ministry of Bishops Ecclesiae imago in 1973. It was intended to be a vade mecum for better exercise of the bishops’ proper pastoral ministry. The directory urged the bishop “to fashion himself in a special way after Christ both in his personal life and in the exercise of his apostolic ministry, in order that the mind of Christ (cf. 1 Cor 2:16) may pervade his whole way of thinking, feeling, and all his dealings with people.”32 It identified a series of supernatural and human virtues a bishop should cultivate in order to make his ministry truly fruitful. It said, for example, that the bishop should “religiously observe the norms of justice and take care that others observed them too.” He should know how “to combine gentleness with fortitude, the ministry of mercy with the authority to govern.” He is also warned that certain evils “are removed not roughly or harshly or in a tyrannical way, but rather by teaching than commanding, more by admonition than by threat.” In the exercise of his sacred power “he should show himself rich in kindliness and courtesy, like Jesus the perfect man, meek and gentle, exhorting the faithful, ‘through the gentleness and mildness of Christ (2 Cor 10:1)’.” His dealings with his flock should be characterized by patience, prudence and genuine solicitude for their well-being. A bishop must avoid “everything which smacks of imperious domination or mere juridical procedures as well as the exaggerated fatherly approach commonly referred to as paternalism.”33 The directory provided a list of concrete guidelines for proper pastoral action on the part of the bishop. But one thing stands out clearly in all the directive contained in it, that is to say, the bishop must be a man who acts justly and equitably in his dealing with his people keeping always before his eyes their eternal salvation.
One of the dominant themes of the Tenth General Ordinary Assembly of the Synod of Bishops was “justice.” The figure of the bishop was repeatedly presented in floor interventions as the “promoter of human dignity” and “defender of the rights of every human being.” In their final message,34 the synod members declared that the modern bishop should not only be holy, but should practice the “Gospel poverty” in imitation of Christ: we should be poor in the face of our brothers and sisters marked by a style of life which draws people to Jesus the Lord. The bishop is the father and brother of the poor. When it is necessary, he should not hesitate to raise his voice on behalf of the voiceless so that their rights will be recognized and respected.”35
J. F. Rigali, the Archbishop of St. Louis, USA, likened the bishop to “a living image of Jesus Christ.” He said that the bishop is a “sign of the love of Jesus Christ,” “a sign of the compassion of Christ.” He is the servant of hope because he is the “herald of divine mercy and forgiveness.”36 V. K. Yao, the Archbishop of Bouaké, Ivory Coast, called the bishop “an icon of Christ.”37R. P. Maloney, The Superior General of the Congregation for Missions, USA, entreated, “Be a father and brother to the poor in your diocese,” “Be a father and brother to the priests of your diocese.”38 S. Vrablec, the Auxiliary Bishop of Bratislava-Trnava, Solvakia, clearly implied in his intervention that the bishops should “see human beings with the eye of Christ and live out their apostolate according to the intentions of Christ.”39 In other words, a true theology should identify the figure of bishop with the person and mission of Christ.
32. GS 43, in FLANNERY I, pp. 944-945.
33. Ibid., pp. 20-23.
34. See SYNODE DES EVEQUES, “Message au people de Dieu,” in L’Osservatore romano, Edition francaise, 6 novembre 2001, pp. 21-23.
35. Ibid., n. 15, p. 22.
36. See Justin Francis RIGALI, “Signe d’unité de I’Eglise universelle.” In ibid., 16 October 2001, p. 8.
37. See Vital Komenan Yao, Vivre, c’est transmettre I’Evangile,” in ibid., p. 16.
38. See Robert P. MALONEY, “Pères et frères des pauvres,” in ibid., 23 October 2001, p. 19.
39. See Stefan VRABLEC, “Voir avec Ies yeux du Christ,” in Ibid., 6 novembre 2001, p. 9.
A direct reference to the defence of rights of the Christian faithful was made in the intervention of Julian Herranz, the President of the Pontifical Council for the Interpretation of Legislative Texts. He said that the life of a bishop should be characterized by prayer, deep intimacy and friendship with Jesus. “This response to our vocation,” he stated, “will assist us in exercising justice in our ministry.” Then he went on to speak of ecclesial justice in the Church, more precisely the duty of bishops to guarantee and promote the rights of lay faithful in the life and mission of the Church. These rights have been expressed in the law of the Church for the first time in more than 100 canons of the Code of Canon Law and the Code of Canon of the Eastern Churches. He referred specifically to canons 213 (the right of faithful to receive assistance from sacred pastors out of the spiritual goods of the Church), 217 (the right to Christian education) and 221, §1 (the right to defend their rights in the competent ecclesiastical forum). He added, “pastoral justice demands effective defense of these rights on our part.” One of the areas of justice he alluded to was lack of tribunals or properly functioning tribunals to deal correctly and swiftly with contentious cases, particularly marriage nullity cases.40
It is evident from several other interventions that “justice” in the Church was one of the most important themes that dominated the assembly floor. It is also clear how important a role a bishop is required to play in promoting and defending the rights, especially of the poor, the suffering and the alienated. Christ is the hope for a world beset with violence and injustice. A bishop is an image or icon of Christ. Therefore, the bishop is the sign of hope, the one whose essential function it is to defend the dignity and rights of all human beings. Does this teaching so forcefully stated by the Synod members reflect in the actions and decisions of the bishops?
4 – The Bishop as the Mirror of Justice and Equity : Practical Reflections
In recent months voices have been raised all over the world critical of the way in which some bishops have been exercising their Episcopal authority. For example, at the close of a four-day convention of the National Federation of Priests’ Councils held in April of this year, its president Fr Robert Silva of Stockton, CA, stated that the scandals of sexual abuse have exposed flaws in a monarchical, top-down, authoritarian style of governance which has persisted in many dioceses despite the aggiornamento envisioned at Vatican II. He said, “I do think, we can’t let the bishops determine our lives […]. The bishops are wonderful, because they are priests. But priests have to take responsibility for their lives. This is new territory for us. We need to speak more and more and more – and rationally, intelligently, and partner with the bishops in developing new ways of being a priests in society.” Alluding specifically to the way the bishops have handled sexual abuse cases in the United States, Silva argued that the scandals have not arisen because the Church does not have policies or procedures. He said: “The Code of Canon Law is actually really, really good […] If people would follow the code, they would be OK. They didn’t follow the code.”41 Although the suggestion that the Codes of Canon Law have or had all the answers to the complex issues involved in the sexual abuse cases seems very simplistic, the point that many bishops even today are either ignorant or are too busy or simply don’t are to know and apply the law properly to concrete cases is I believe, is well made. This is not the first time that we have heard such a comment. From consultations and complaints we receive so frequently we are aware that there is a real need for bishops around the world to know the law or at least have expert advice before making important decisions which affect the lives of the faithful and the Church.
40. See Julian HERRANZ, “Guarantir et promouvoir le droit des fidèles laїcs,” in ibid., 23 octobre 2001, pp. 23-24.
41. As reported by Michael SWAN in The Catholic Register, Week of 5 May 2002, p. 10.
Today more than even before, people have become very sensitized to their rights and obligations within the society and within the Church. We can no longer presume to walk over their natural and ecclesial rights and go unquestioned. This is what is happening in our Church today. If people feel that their rights have been violated they go to court, even to civil court, if necessary, to find redress. This is quite evident from the number of complaints brought before the Holy See in recent years.
In order to confirm this observation, I reviewed the annual report of the Holy See, especially as related to the activities of the Apostolic Signatura for the six year period beginning in 1994 to 1999.42 Although the details of the statistic of cases either reviewed in Congresoo or judged by the plenary bench of the Signatura’s tribunal are not clear, it seems that of the approximately 89 recourses received and presumably examined at the Second Section of the Signatura for these six years, 34 concerned bishops’ decisions. And of the 46 definitive decisions rendered by the Signatura’s collegiate panels, 19 dealt with bishops’ decrees. These numbers confirm the frequency of recourses the faithful are now bringing before the Apostolic Signatura seeking justice and equity from the Church. The largest number of recourses reviewed in Congresso were against the bishop’s decision to suppress parishes and in some instances to reduce the churches to profane use (16). This was followed by those against the decrees of removal of parish priests from parishes (8), transfer of parish priests (3), declaration of impediment to exercise sacred orders (2) and suspension a divinis (2) and other recourses involved a precept (1), denial of office in the diocese (1) and incardination (1). During the same period, the collegiate panels pronounced 8 definitive decisions on recourses against decrees of suppression of parishes or change of name parishes (churches), 5 against removal of parish priests, 2 against transfer of parish priests, 2 against declaration of impediment to exercise priestly ministry, and 1 against suspension a divinis, and 1 involving a precept with a threat of latae sententiae suspension.43 more recourses are referred directly to different dicasteries of the Holy See, and many of them do not reach the Signatura. Although most of the recourses are rejected at the level of in Congresso as having no foundation for further review, the Signatura always seems to examine recourses with an open mind. Several of the Signatura’s decisions have favoured the recurrents against their bishops and at least three times the Signatura has overturned its own definitive decisions by granting restitution in integrum in the interest of justice and equity. The increase in the number of cases referred to the Holy See by the faithful is indicative of an ethos in which the faithful clearly feel that they too have rights in the Church and they are confident that they can find justice and equity in the Church which they may not find in their own bishops.
42. At the time of researching data for this study only the volumes of 1994-1999 reports were available.
43. These statistic are drawn from L’Attività della Santa Sede nel 1994, Città del Vaticano, Libreria editrice Vaticana, 1995, pp. 1204-1209; ibid., 1995 , pp. 845-849; ibid., 1996 , pp. 824-826; ibid., 1997 , pp. 938-940; ibid., 1998 , pp. 882-885; ibid., 1999 , pp. 935- 938.
On 25 May 2002, three decrees of the Congregation for the Clergy were posted on the website and these concerned the recourses three priests had placed against their bishops’ decisions barring them from priestly ministry. According to the information provided on these cases, the Congregation overturned all three decisions of the bishops.
In the first cases,44 the Ordinary of the place decreed on 17 July 1998 that his pastoral office required of him to protect the unity of the people of God and to build up of the Body of Christ. Therefore, “Remedial considerations arising from that responsibility lead me to derogate from the normal diocesan custom and withdraw as from this date [17 July 1998] your faculty to celebrate the Eucharist publicly, to hear confessions and to preach … These remedies will remain in force for such time as is necessary for the public good of the Church.”
When a request for revocation of the decree was denied by the bishop the priest recourse before the Congregation for the Clergy. The argument supporting his recourse was that “no motives were expressed in his decree and that a basis for the removal of my faculties had not been canonically proven.” All attempts by the Congregation to have the controversy settled outside of the contentious forum were in vain.
The acts of the case revealed that the ordinary had used a confused mixture of civil and canonical procedures together with local ecclesiastical procedures unknown to canon law, and matters pertaining to actions within the Sacrament of Confession reserved to the Congregation for the Doctrine of the Faith. The Ordinary had used canon 1717 and 1722 as legal basis for his investigation and eventual decision. A Commissioner was appointed to investigate the truthfulness of the allegations. The Congregation pointed out clear violations of canons 221, 51, 39 and 1717 and 183, § 2 by the Ordinary.
44. CONGREGATIO PRO CLERICIS, 23 August 2001, Prot. No. 2001/1099. See htt://webmail.aol.com/msgview.adp? folder = Uk VBRA = = &uid=3084658.
In his letter dated 29 October 1996 the Ordinary had decreed: “[I] hereby rescind all the faculties of the Archdiocese for this period of leave, including the faculty to hear confessions and the faculty to assist marriages, I also remove your faculty to preach during this time … You may celebrate Mass privately, but only in circumstances that could lead no one to presume that you have the faculties of the Archdiocese. Should you be asked to supply any priestly ministry, you are to state that you are unavailable for supply … You may not reside in the XYZ presbytery, nor indeed within the boundaries of the XYZ parish. You are required to leave the parish before noon tomorrow … I emphasize that these actions in no way signify that there has been a decision whether or not the allegations against you have been made out …” As the Congregation understood it, the Ordinary seems to have applied canon 1722 without a clear canonically recognizable administrative or judicial process for the application of the provision of a perpetual nature.
There was no evidence in the acts that an administrative or judicial process was actually initiated or had been decreed by the Ordinary. The provision of canon 1722 had been applied to the priest on 14 March 1997, with no indication of the activity of the Promoter of Justice at that time as is required by the same canon. Hence again a procedure, sui generis, was operative.
Despite the resignation of the priest from the office of parish priest or his advanced age, the Ordinary continued to uphold the removal of faculties, sine die, citing remedial considerations. The priest was not seeking restoration to active pastoral office, but merely the restoration of full faculties of the Archdiocese. The Congregation felt that if remedial concerns were the reason for the continuation of withdrawal of the faculties then it would appear that such “remedial” expiation had already occurred since the first imposition of this situation by the Ordinary on 14 March 1997 and which had continued, without suspension, despite pending appeal.
The confused mixture of procedures used in effectively depriving the priest of active ministry; unclear and undefined accusations which kept on changing; the fact that the said accusations, if true, were already prescripted in accord with the norm of law; the good name of the priest was tarnished by information circulated by the Archdiocese contrary to the prescripts of canons 1717, §2 and 220; the decree of 17 July 1998 did not meet the requirements of canon 51, nor was it arrived at following appropriate canonical process; canon 1722 was improperly applied and outside of recognizable process thereby violating canon 221, §3 as well.
Therefore the Congregation declared on 23 August 2001 that the Decree of the Ordinary dated 17 July 1998 was null and void and without juridical effect because of serious flaws in procedendo in this particular case.
The second case also had a similar history.45 The same Ordinary mentioned above issued another decree on 3 September 1998 stating that in order to protect the unity of people of God and the building up of the Body of Christ, “Remedial considerations arising from that responsibility lead me to derogate from the normal diocesan custom and withdraw as from this date your faculty to celebrate the Eucharist publicly, to hear confessions and to preach.” When a request for an amendment of the decree was refused by the Ordinary, the priest concerned placed recourse on 12 October 1998 before the Congregation for the Clergy alleging that no motives were expressed in the decree and no canonical process had been followed. The priest also sought costs and damages as well as restoration of faculties. The Congregation made several attempts to induce the parties to seek an out of court settlement, but to no avail. Although the priest’s faculties were restored as of 3 September 1999, he was still desirous of pursuing the process in order to defend his innocence of the charges brought against him.
Because it was the same Ordinary involved in the case discussed above who issued the decree in this present case, he had followed the same confused blend of canonical and civil law procedures used in the previous case to arrive at “findings,” (which is in practice a “finding of facts”), upon which he had based the decision in this case.
The Congregation pointed out that the accusations of sexual abuse of the woman complainant by the priest were alleged to have occurred in the 1960s, thus well outside any possible interpretation prescription. Those allegations were in fact at the heart of the Ordinary’s action.
The Congregation expressed serious concerns about the procedural irregularities in the local process on the matter of prescription having precluded any valid subsequent canonical action. Therefore, the decree of the Ordinary dated 3 September 1998 lacked basis in law or in fact. It also did not meet the condition mentioned in canon 51 which requires that “a decree be issued in writing, with the reasons at least summarily expressed, if it is a decision.”
The priest had requested a judicial process which was denied to him in violation of canon 221, §1. The Congregation concluded that the decree of 3 September 1998 was not arrived at following an appropriate canonical process in violation of canon 221, §3.
Therefore, the Congregation declared on 23 August 2001 that the decree of the Ordinary dated 3 September 1998 “is null and void and without juridical effect because of serious flaws in procedendo and in decernendo. Furthermore, because the procedure used was sui generis which compelled the priest recurrent to employ civil advocacy for an adequate defence against the accusations, the Archdiocese was ordered to pay the costs of the priest and an assessment of further damages was not deemed appropriate. The decree of the Congregation also declared that the execution of the Ordinary’s decree was stayed by law itself pending appeal in accord with the norm of canon 1353.
45. CONGREGATIO PRO CLERICIS, 23 August 2001, Prot. No. 2001/0081. See http://webmail.aol.com/msgview.adp?folder=UkVBRA==&uid=3084672.
The third case,46 which originated from the same country as above but from another diocese is more complex both in factual details and in procedural issues involved. In brief, the details of the case presented in the Congregation decree a.e as follows:
By his decree dated 7 August 1998, the Ordinary of the place denied any further ecclesiastical appointment to Fr. Z. subject to the condition of a full psychological appraisal to be carried out by a predetermined professional psychological institute based in the country.
The priest in question was accused in the civil court of sexual abuse. The civil court dismissed the suit as being “unfounded” in civil law. Following this civil court’s decision, the Ordinary of the place stated in his letter dated 19 December 1997: “The weight of information made available to me including significant additional material that I have received during this past month, has been cause of worry concerning you suitability for a further pastoral appointment in this diocese or any other.” With this letter Ordinary decided to initiate an investigation according t the norms of canon 1717, at the same time citing a procedure in accordance with a local policy, and stated, “In light of this new information, I repeat my personal request … that you continue to stand aside from public ministry.”
Canon 221, §3 assures that “The Christian faithful have the right not to be punished with canonical penalties except according to the norm of law.” This canon makes it quite clear that any procedure, employed in an investigation leading to the imposition of a penalty, must be congruent with the norms of the Code of Canon Law. The preliminary investigation set in motion by the Ordinary seems to have followed a course not clearly recognizable as that prescribed by canon law. The Ordinary did not carry out the investigation himself. However, in the circumstance of this particular case, he should have appointed a single Delegate to act on his behalf as envisioned by canon 1717, §2. But the acts of the case had no indication of any such appointment.
The investigation was carried out in the name of the diocese by individuals not appointed in accordance with the law. They had not followed procedures consistent with the norms of the Code. The acts had no identification of the accusers. There was no written sworn testimony from any of the accusers indicating dates, times, places and witnesses of the alleged abuse. Individual accusations could not be verified by recognizable legal means. It seems that the accusations had been taken by the Ordinary at face value overturning any presumption of innocence to be afforded by natural law to any accused. Public statements made by the diocesan officials had apparently harmed the good reputation of the accused (cfr. Canons 220 and 1717, §2).
46. CONGREGATIO PRO CLERICIS, 21 December 2000, Prot. No. 2000/1201. See htt://webmail.aol.com/msgview.adp?folder=UkBRA==&uid=3084679.
The acts of the case contained no decree opening either an administrative or judicial process (cfr. Canons 1720, 1721), thus possibly allowing the application of the provisions of canon 1722 in order to effectively exclude the priest from active ministry through the entire process.
The preliminary investigation was begun in accord with canon 1717 on 19 November 1997 and the Ordinary issued his decision in a decree dated 7 August 1998, in which he required Fr. Z. “as a prerequisite to any further [evaluation of a] psychological nature at an institute named ‘EA’.” This decision was made in contravention of the norms of canons 1717 and following.
The Ordinary cited as basis for his action the assessment of the priest by two experts, which, despite the acquittal of Fr. Z. by civil authorities, reported matters indicative of a problem on the part of the priest and listed other accusation of a “sexual nature,” which were never verified. The only information presented was the word of a “complainant” who would not “formalize the complaint,” nor was the nature of the accusation explained by the report. Another accusation made by a young man was that he “believed” that the priest acted in a manner which was “sexual in intent,” without again there being any verification of the accusation. There were “five other complainants” who alleged that the priest indulged in sexual innuendoes, encouraged group urination and genital size contests, swam naked with boys, insisted that they shower naked in his presence, indicated an interest in and discussed the physical development of some with them.
The Congregation felt that the priest had responded to all these accusations, denying them in writing, and asking for a canonical process in order to prove his innocence, (as he had done in the civil forum, at a personal expense of $75,000). But there was no indication that such an opportunity was ever afforded him.
The Ordinary stated in his decree that the criteria of proof to be applied “is not that of ‘beyond reasonable doubt’ but the lesser standards of ‘balance of probabilities’ and ‘unacceptable risk’.” All these criteria are foreign to canon law and its processes, and no dispensation is possible from such processes.
The Ordinary indicated in his decree (quoting and accepting the report presented to him without questioning), that he had “no choice” but to place the onus on Fr. Z. to establish his personal integrity t the satisfaction of the Ordinary, so that he could confidently reappoint him to priestly ministry and without fear of exposing the community to any risk by so doing. The Resource Group also suggested that the only effective and acceptable way in which Fr. Z. could do this was to prove these matters to the Ordinary’s satisfaction by submitting himself to a comprehensive appraisal by the EA institute. The Congregation did not think that these conclusions were arrived at in a manner consistent with canonical legislation.
Furthermore, the Congregation argued that the priest had been found “idoneus” for ministry at the time of his ordination; he had worked with youth both before and after his ordination without any question being raised as to his behavior; he had successfully defended himself against an accusation of sexual abuse in the civil forum, which action was promoted by officials of his diocese; he has been exonerated by the civil judicial system, had spent $75,000 personally in his own defence; he had defended himself in writing against the accusations presented, sought canonical trial in order to vindicate his rights in the ecclesiastical forum, which was denied him; he had been deprived of his ministry as a priest for a number of years, had suffered loss of his good name, had not received any remuneration assured to him by canon 281, §§1 and 2, and had been forced to seek employment in the secular world as a bus driver in order to support himself and his sick mother.
The Congregation’s decree of 21 December 2000 reads as follows:
“[T]he recourse of Fr. Z. against the administrative act dated 7 August 1998 issued by the Ordinary of the diocese, is upheld due to lack of compliance, in procedendo, with the norms of the Code of Canon Law for canonical process, and in regard to in decernendo, it lacked basis in law and in fact, thus the said decree lacks any juridic effect; furthermore, in keeping with the discipline of canon 128, Fr. Z. is to be restored immediately to the full exercise of his priestly ministry in the diocese and restitution is to be made of that which he was deprived in keeping with the diocesan norms for remuneration of Clergy and canon 281.’
All these three decisions of the Congregation for the Clergy might very well be referred to the Apostolic Signatura. In fact, the latest jurisprudence of the Signatura has declared that cases of the kind presented above are not penal but administrative in nature.47 The prohibition from active priestly ministry is not imposed by the bishop as a penalty but as an application of canon 1044, §2,2°, “The following are impeded from the exercise of order: 2° a person who is affected by amentia or some other psychic illness mentioned in can 1041, 1° until the ordinary, after consulting an expert, permits the exercise of the order.” Therefore, one could reasonably argue that the bishops in these cases were merely trying to prohibit the priests concerned from exercising ministry for the good of the community and of the Church and not imposing a penalty of suspension a divinis. But even in an administrative process, the personal and ecclesial rights of persons cannot be unduly restricted without a grave cause. The right of defence must always be respected and protected even in cases of this kind.
This point can be further illustrated by some concrete examples of how bishops sometimes make decisions and act contrary to the basic principles of justice and equity.
47. See Augustine MENDONCA, “Justice and Equity in Decisions Involving Priests,” in Philippine Canonical Forum, vol. III, January-December 2001, pp. 71-80.
A few years ago a parish priest dismissed a lay Eucharistic Minister from distributing Holy Communion during Sunday Mass because of some disagreement between the two. Feeling unjustly treated by the parish priest, the lay person placed recourse before the Ordinary of the place. This Ordinary referred the matter to the Dean of the deanery for a negotiated settlement of the dispute. The long delays in pursuing the matter and the intransigent attitude of the parish priest led to discouragement on the part of the lay person and the controversy never got settled. The man simply gave up the fight. He could not find justice in the Church even in a simple matter life this. In cases of this kind simple folks are usually left with a feeling that there is nobody in the Church to listen to them when they are unjustly treated by its authorities.
A dispute arose between a parish priest and a lay person. The bishop tried to resolve the conflict but was not successful. The lay person demanded that justice be done. The bishop sent the dossier of the case to the Apostolic Nuncio to be forwarded to Rome. The Nuncio wrote a very nice letter explaining to the bishop that he had the power to deal with the controversy according to the norms of canon law, and only when he has referred to the Holy See. This seems to be a recurring pattern of behaviour on the part of many bishops because they just want to wash their hands and let Rome do their dirty work. The Holy See usually returned such matters back to the Nuncio with the instruction that they be handled first at the local level before sending them on the Rome.
A principal of a Catholic school fully subsidized by the government was dismissed from his position without any due process, whether civil or canonical, and this action by the school board was confirmed by the bishop. Several attempts made by the aggrieved principal and his parish priest to have the dismissal order rescinded and to settle the dispute peacefully proved futile. The bishop rejected all suggestions for a negotiated resolution of the problem. Finally, when he was made aware of the serious violations of basic human rights of the principal as direct consequences of his actions, the bishop agreed to constitute a special commission to investigate the matter. The commission’s findings confirmed violations of the principal’s rights by the decisions of the board and of the bishop. It recommended immediate reinstatement of the principal to his former position and payment of salary for the entire period he had been out of job as a direct consequence of the board’s decision. Fortunately the bishop acceded to these recommendations.
A bishop recently sent a contentious case to the Apostolic Nuncio requesting that it be forwarded to Rome. The Nuncio wrote back saying that before sending any case of a contentious nature to Rome it must be first dealt with by a local tribunal. The bishop replied that it was not a “marriage case,” implying that any contentious case that does not involve a declaration of nullity of a marriage is to be handled by Rome. The bishop had no contentious tribunal in his diocese nor did he seem to be aware of its need. He probably thought that the Pope would take care of such cases. The Nuncio advised the bishop to set up a neighboring diocese for the same when contentious issues emerge in his diocese.
A priest received a rescript of dispensation from his priestly ministry after working for several years in the diocese. He was fortunate enough to find employment which he was able to keep until he reached the age of retirement. But the pension he received from his employment was very meager. Therefore, he approached the bishop for some financial assistance to supplement his pension. He hoped that the bishop would help him out of what he would have received if he had remained in ministry. The bishop’s response was that there was no pension plan whatsoever at the time of his resignation from active ministry. If he had remained in ministry the diocese would have cared for him until his death. Therefore, the bishop refused to offer the priest any financial assistance. Although the bishop certainly had no obligation in strict justice to supplement the priest’s pension, could he have nevertheless helped the priest out of equity and evangelical charity in view of the many years of service he had rendered to the diocese?
There seems to be a wide-spread misunderstanding in the minds of many bishops, especially in developing countries that because their dioceses are still under the Congregation for the Evangelization of Peoples, their faith communities are not parishes or quasi-parishes in any formal sense. Therefore, they appoint so-called parish priests for a time period in accord with their own criteria. The bishops are under the impression that because they do not have so-called parishes they are free to appoint priests for a period of time that suits their need. This is not without serious consequences for the priests’ tenure in office. Priests in Charge,” a category non-existent in canon law. Such an approach essentially means that a priest so appointed can be removed or transferred at will by the bishop. There is absolutely no guarantee of stability in the office of the priest nor of continuity in the pastoral care of the faithful. Rights both of the faithful and of the pastor seem to have little consideration in the method employed in such appointments. Just as appointments are made ad nutum so are removal or transfer of parish priests contrary to the letter and spirit of the law.
A few years ago a bishop promulgated a lengthy general decree through which he intended to appropriate the salaries, retirement benefits, and pension of the priests who were assigned to teaching positions in the Catholic schools and colleges. The priests affected by this decree were receiving their salaries directly from the government. As soon as the decree was promulgated, the priests concerned, through the Apostolic Nuncio of the country, placed recourse against that decree before the Congregation for the Evangelization of Peoples, which after a long time sent an unsigned memo to the bishop through the Nuncio stating simply that the bishop should settle the dispute through negotiation with the priests taking into account the policies, if, any, on similar matters that might be in vogue in the region or in neighboring dioceses. The dispute was finally settled through negotiation and arbitration between the bishop and the priests. There was no doubt in this case that the acquired rights of the teaching priests were going to be automatically curtailed by the bishop. His approach was confrontational and imposing lacking any semblance of justice and equity.
Once some disagreement between a bishop and one of his priests became so serious that the bishop decreed suspension of the priest without any process. The priest sought canonical advice and challenged the bishop’s decree. After learning from a canonical expert that his action was invalid due to non-observance of due canonical process, the bishop withdrew his decree. The priest left the diocese and went abroad on study leave. The bishop lost one of his own priests!
A priest was reported to the bishop by some parishioners that he was preaching some unorthodox view in his homilies. The priest had gone on three months’ vacation with the permission of the bishop. The bishop heard that the priest expressed the same views also during his vacation. Although he was appointed parish priest for a definite period of time, the bishop removed him from his office immediately upon his return from holidays and appointed him to some other office in the diocese without giving any explanation of his decision. What can the priest do in such a situation?
A priest was accused of several canonical delicts. The bishop by precept ordered the priest to mend his ways or else he would be suspended a divinis. When the priest did not heed the bishop’s precepts, he was suspended. Attached to the decree of suspension was a threat by the bishop of dismissal form priesthood. The case was referred to the tribunal for a penal trial as the priest refused to abide by the bishop’s warnings. The tribunal of three judges pronounced and affirmative decision was a precept threatening the priest with dismissal if he failed to amend his way of life. When the priest failed to appeal this decision, a question arose if the priest could now be dismissed by decree in virtue of the precept. As you probably know, the penalty of dismissal from priesthood cannot be imposed by means of a precept. Fortunately the appeal tribunal, when asked of its opinion on the case, indicated to the bishop that the priest could be dismissed from clerical state only through a full penal trial and never by a decree. Some bishops are probably under the impression that they can do all these things without any constraint. Often they seem to act without proper canonical advice.
A bishop had been for years literally alienating diocesan properties without following proper canonical procedures, for example, without seeking the requisite consent of the college of consultors as required by law. He was reminded that his acts of alienation of diocesan property were canonically illegitimate. When the bishop did not heed the canonical advise offered to him, some clerical members of a commission appointed in accord with civil law for the preservation of properties belonging to charitable corporations brought suit against him in civil court. One might just wonder how such a thing could happen. The fact is that this happens quite frequently, and sometimes bishops wake up to find themselves trapped by the legal consequences of their own actions.
These are neither parables nor anecdotes. They represent factual details of actual decisions bishops had made in concrete cases. They reveal several things, such as ignorance of the law, probably lack of interest in law, unavailability of expert assistance in times of need, lack of insight into the serious legal consequences of actions which concern rights of individual and the common good, etc. presentation of these cases is not meant so much to be judgement on the actions of bishops as an individual to reflect upon and come to a genuine appreciation of the role of ecclesial law in the practical governance of particular churches. We all agree that it is human to err, but it takes courage, humility and generosity to acknowledge it and to right the wrong done by one’s actions.
In his presidential address on 13 June 2002, Bishop Wilton D. Gregory, the president of the United States Conference of Catholic Bishops, while acknowledging the gravity of crisis triggered by revelations and cover up of sexual abuse of children and minors by priests, placed blame for the crisis squarely on the bishops’ shoulders saying: “This crisis is not about a lack of faith in God. In fact, those Catholics who live faith actively day-by-day will tell you that their faith in God is not in jeopardy; it has indeed been tested by this crisis, but it is very much intact. The crisis, in truth, is about a profound loss of confidence by the faithful in our leadership as shepherds, because of our failures in addressing the crime of the sexual abuse of children and young people by priests and Church personnel.”48 I think we all can agree with Bishop Gregory’s observation in regard to where the blame for the present crisis in the Church should rest. But it is important to keep in mind that, as I have demonstrated above, there are many areas of Episcopal ministry where the bishops ought to learn to have a feeling for justice and equity. Often their actions have at least an appearance of their ignorance of or distrust toward the law. They seem to forget or at least not appreciate the fact that the law is at the service particularly of the bishops. Although the law does not have answers to all human conflicts, following the law, which is designed to serve the common good, always guarantees its just and equitable administration within the ecclesial community.
The Second Vatican Council, while acknowledging the power of human weakness capable of leading us humans to failure in witnessing to the Gospel message, invites all Christian faithful to purification and renewal in this aspect of our ministry in a very special way. This is what the council says in Gaudium et spes:
Today as well, the Church is not blind to the discrepancy between the message it proclaims and the human weakness of those to whom the Gospel has been entrusted. Whatever is history’s judgement on these short-comings, we cannot ignore them and we must combat then earnestly, lest they hinder the spread of the Gospel. The Church also realizes how much it needs the maturing influence of centuries of past experience in order to work out its relationship to the world. Guided by the Holy Spirit the Church ceaselessly “exhorts he children to purification and renewal so that the sign of Christ may shine more brightly over the face of the Church.”49
48. Wilton D. GREGORY, “A Catholic Response to Sexual Abuse: Confession, Contrition, Resolve,” at http://www.usccb.org/bishops/presidentialaddress.htm. p.1.
49. See GS 43; here the reference is to LG 15; FLANNERY I, p. 945.
A purification and renewal in the understanding of ecclesial law is a need all bishops should urgently heed especially in light of the revelations of mishandling of sexual abuse cases in the United States and in other parts of the world. It is only when there is proper appreciation of the law that we can expect a genuinely just and equitable resolution of conflicts in the Church. Those who clamor for purely pastoral approach to human problems with total disregard for ecclesial law forget the fact that a truly pastoral approach is one which respects the law and fosters its just and equitable application to concrete cases. Unless the bishops come to appreciate this fact, they will continue to disregard the legitimate rights of Christ’s faithful. This does not imply that bishops themselves should be experts in canon law. It is certainly possible for them to foster and promote appreciation of ecclesial law in many different ways.
One of the aspects of Episcopal ministry, in my considered opinion, sorely neglected by many bishops around the globe, is the formation of canon lawyers for their dioceses. For example, as mentioned by Bishop Julian Herranz at the last Synod of Bishops, there are several dioceses around the world which do not have tribunals even to handle marriage nullity cases. This is evident in the indults granted by the Apostolic Signatura to certain dioceses to have their cases judged by some other tribunal. Some of these indults are quinquennial or decennial in length.50 I assume that in granting those indults the Signatura hopes that their beneficiaries would have trained canon lawyers within five or ten years. How can justice be administered in the Church according to the norms of law and principles of equity if there are no persons properly trained in canon law? Should not bishops who do not have any canon lawyers in their dioceses consider it an urgent need requiring immediate attention? If administration of justice with equity is the cornerstone of the Church’s ministry, which is salvation of souls, can the study of canon law be relegated to the lowest category among the priorities of a particular church?
In concluding my reflections, I would like to add that the administration of justice with equity in the Church is not the sole prerogative of the bishop in his particular Church. As canon lawyers, working in different capacities, we too are part of the system designed to offer such a ministry in the name if the bishop. In a sense we become the “image” or “icon” of the bishop in whose apostolate we share. Those of us who work in parishes, in diocesan chanceries and tribunals also need to take stock of our own approaches to justice and equity. It may not be an exaggeration to say that some of us canon lawyers are probably guilty of the same violations of justice and equity we find perpetrated by our bishops. Probably some of our bishops might be able to plead ignorance, although culpable, while we canon lawyers many not be that lucky! Every one of us as canon lawyers must be imbued with a true sense of justice and equity so that our ministry becomes effectively salvific as the final canon 1752 of the Code of Canon Law instructs.
50. See, for example, L’Attovità della Santa Sede nel 1994,