NEWSLETTER NO. 141 MARCH 2005
- Obituary: Pope John Paul II
(Mgr David Cousins)
- Some Canonical Reflections on
the Pontificate of Pope John Paul II (Bishop John Jukes)
- The Holy Father's Address to
the Rota: 29th January, 2005 (Pope John Paul II)
- Reflections on the Bonum
Coniugum as a Heading of Nullity (Bishop John Jukes)
- Canon Law versus State Law:
Letter to The Tablet on the Strasbourg Decision (Rev
Paul Hayward)
- The Canonical Documentary
Process and the Right of Defence [Strasbourg Decision] (Rev
Paul Hayward)
- Hierarchical Recourse:
Graviora Delicta Cases (Mgr Gordon Read)
- Changing the Grounds in a
Marriage Nullity Case (Mgr Gordon Read)
- Proposed Changes to Civil Law
Regarding the Registration of Marriages (Paul Robbins)
- What Kind of Confidentiality
Does Testimony in Marriage Nullity Cases Enjoy? (Mgr Gordon
Read)
- Global Tribunal Statistics
From the Annuarium Statisticum Ecclesiae 2002 (Rev
Peter Kravos)
- Presentation to the Press of
Instruction about Norms in Marriage Cases
- Rotal Jurisprudence 2001:
Error of Person (Canon 1097, §1) OR Error About a Quality of
a Person (Canon 1097, §2) (Brian Sweenet FMS)
Pope John Paul II of happy memory died
at 8.37 p.m English time in his Vatican Apartments in Rome on
Saturday, 2nd April 2005. So many people had been praying for the
good estate of the Holy Father; and many were praying to St Joseph
for the Holy Father. Clearly, he was clinging to life having earlier
dedicated his last days to be part of Christ’s sufferings on the
cross. The announcement of his death by the Vatican was very prompt.
The Vatican had kept the whole of the world informed from moment to
moment about the Pope’s declining health. This is a fact that had
been noted throughout the world by the press.
This openness to the whole of the Church seems to have been of one
piece with the Holy Father being totally open with the whole of the
Church as shown by the extent of his travelling (129 visits) and his
pastoral concern for the places to which he travelled. It was also
shown by his involvement with the political situation in Eastern
Europe and the collapse of communism; as well as the way in which he
unflinchingly proclaimed what he, as a successor of St Peter,
regarded as the truth concerning contraception, abortion, women
priests. Unflinching is the word in which to describe his reign.
The impact he made on the Catholics around the world was quite
unbelievable; but equally was his impact on the non-Catholic
believers as well as non-believers. Those who were involved with his
pastoral visit to England, Scotland and Wales were able to see his
guiding hand; his presence amongst all his congregations and his
viewers. His was a special impact not only upon those of his
generation but also his special impact on the younger generation
(those who had only known one Pope) was so obvious and quite
palpable. May he rest in peace. His obituary by Monsignor David
Cousins appears at Document No.I.
It was Pope John Paul II – also – who
promulgated the Code of Canon Law in 1983. The original Code was
already being revised and prepared when the Pope came to the throne;
and the work of Pope Paul VI continued up to its conclusion with the
final redactions being circulated for consultation up to the end of
the seventies. Then followed the special meeting of Cardinals in
October 1982, which included the attendance of Cardinal Ratzinger
and Cardinal Hume. The version apparently agreed by the end of that
meeting then went to the Pope for consideration; he set up another
small group which examined the Code from beginning to end, and a
number of significant alterations were made in the very last days of
1982. Eventually the Code appeared with an Apostolic Constitution by
John Paul II Sacrae Disciplinae Leges on 25th January 1983,
to take effect from the first Sunday of Advent of 1983. Subsequently
the Holy Father did not hesitate to produce relevant documents
throughout his life time. It is, therefore, most helpful that Bishop
John Jukes, who was associated with the Revision of the Code from
its early days has now written Some Canonical Reflections on the
Pontificate of Pope John Paul II. This was written by the Bishop
to commemorate the 25th Anniversary of John Paul II’s inauguration
as Pope in October 1978. These reflections appear at Document No.
II.
Just before his first spell in the
Gemelli Hospital, the Holy Father gave his Annual Address to the
Auditors, Officials and Staff of the Roman Rota on Saturday 29
January 2005. This address was one of the shortest (if not the
shortest) addresses to the Rota given by the Holy Father in the last
twenty-five years. But regardless of the length, the Holy Father
again stresses the holiness of the marriage bond and the sacred
character and role of those involved in judging the validity of
marriage.
On the occasion of this year’s address, the Holy Father made five
specific points: first, the moral conscience of the parties seeking
nullity must be such as to respect the truth and honesty of the
action itself; second, there is the ever present danger of confusion
of a failed marriage with an invalid marriage; third the importance
of the role of the Bishop in knowing the suitability of his Tribunal
personnel; fourth the genuine desire of the Judge to seek, within
the canonical norms of procedure, and to find the truth; and fifth
the Holy Father stresses the fact that there must be no separation
between juridical norms and the teaching of the Church on marriage.
(See Document No.III).
Having read the Holy Father’s address, it is worthwhile comparing
what he actually said to the Roman Auditors and others present, with
what the press said he said. Even such organs of limpid truth and
objectivity as the English Catholic Press can give a completely
distorted impression of what the Pope teaches. Apparently the press
alleged that the Pope took time off to comment to the Rota on the
vast increase of nullity cases throughout the world, with the
suggestion that the rise in numbers of nullity cases means that
marriages are being dealt with almost by way of divorce. Whereas, in
fact, the truth is that figures show (as published by the Holy See
in 2003) that there is an increase in some parts of the world; a
shrinkage in the British Isles; a slowing down of the increase in
the United States of America; and an overall increase in Italy and
Poland. As usual, the Kennedy case is quoted from the newspaper
library (now some twelve years old). It is surprising that the
Marconi and Marlborough cases are not also recalled. A strict
monitoring of what the Holy Father does say as against what he is
said to have said is obviously vital.
Readers will recall that the December
2004 number of CLSN contains a lengthy article by Professor
Augustine Mendonça. His article was a lengthy analysis of two sets
of Rotal decisions given on the grounds of an intention contra
bonum coniugum.
Because of the importance of these grounds and because of their need
for proper and fully controlled development, the Moderator of the
Inter-diocesan Second Instance
Tribunal of Southwark chose this topic for his address to the AGM of
the Inter-diocesan Tribunal.
Bishop Jukes considers that given the array of existing grounds for
nullity petitions, the question remains whether jurisprudence has
adequately developed enough to affirm the exclusion of the bonum
coniugum as a ground for nullity. The Bishop says that initially
it will be a matter for the Church’s Courts to determine the precise
existence and nature of such a ground. However, the considerations
in Professor Mendonça’s paper in the December CLSN will argue
towards an affirmative answer to the question asked by the Bishop.
(See Document No. IV).
Readers will recall that the December
2003 in number of the CLSN reproduced a decision
from the European Court of Human Rights at Strasbourg (CLSN December
2003, no.126, pp 7-17). Subsequently The Tablet on 9 October
2004 printed an article by Professor Conor Gearty (the Director of
the Centre for the Study of Human Rights at LSE) about the point
involved in the Strasbourg decision. Subsequently a letter appeared
in The Tablet of 16 October 2004 from Father Paul Hayward
which pointed out the misdirections of Professor Gearty’s article;
and an indication of what the matter was really all about. Father
Paul Hayward was asked by the Editor of CLSN to write an article to
explain the real situation. For the sake of continuity, Father
Hayward’s letter to The Tablet of 16 October is reproduced at
Document No.V. Father Hayward’s article is at Document No.VI.
CLSN has already reproduced the motu
proprio called Sacramentorum sanctitatis tutela; together
with the recent presentation made by Monsignor Charles Scicluna. His
paper (also previously reproduced) is called in full “Recourse
against singular or administrative acts of the diocesan bishop
concerning graviora delicta cases: request for revocation or
amendment; hierarchical recourse to the CDF; recourse to Feria IV of
the CDF”. Monsignor Gordon Read points out that this document is of
much wider application and interest than the title suggests. He says
that the application of the document is, of course, specifically for
handling cases reserved to the CDF by Sacramentorum sanctitatis
tutela. However, the first part is a succinct and exceptionally
clear commentary on the whole of the administrative process
contained in Canons 1732-1739, As such the document can be applied
more widely in any form of hierarchical recourse against
administrative decisions or decrees. Monsignor Read sets out a
comment on Monsignor Scicluna’s paper at Document No.VII.
There has recently been some discussion
on the canonical Internet about changing of grounds for
nullity before the end of a case. Usually (and on the advice of a
Canon Lawyer from the Tribunal) a Petitioner sets out the most
likely grounds for nullity in the Libellus; and the Court
then pursues evidence along the lines of those grounds. However, it
can happen that when the evidence of the nominated witnesses (and
the parties) has been taken, it will be seen as if the original
ground was not quite right; and a change should be made or a further
ground added. So far as is known what then usually happens is that
the Tribunal approaches both the parties (or only the Petitioner if
the Respondent is not involved) to suggest a change of grounds.
In most cases this is quite easily done. On the other hand, it may
well be that the suggestion has to be made to the Petitioner that
grounds should be added in him or her. This might receive a negative
reaction; and according to many the case must then proceed on the
original grounds; even if it means a decision against the
Petitioner. A sensitive court might draw back from giving a negative
decision to ensure that the Petitioner is aware of what is at stake
here.
However the situation might arise at the decision stage. At this
point the Judges may have to record that the grounds are wrong or in
the wrong person. At this point there is a consideration of whether
the Judges (as a College) can change the grounds. Monsignor Gordon
Read has considered these points in Document No.VII.
In January 2000, the Government
published a white paper for consultation called Civil
Registration: Delivering Vital Changes. Chapter 3 of this
document concerns marriages. In September 2003 The Department for
Christian Life and Worship (of the Conference of Bishops of
England and Wales) produced a paper for the consideration of the
Bishops’ Conference. The proposed changes were outlined for the
Bishops. The Bishops discussed this. A response was produced by the
Department on behalf of the Conference of Bishops of England and
Wales. Both of these are reproduced at Document No. IX; together
with a commentary written by Paul Robbins.
The details can be studied in Document No.IX. Not a great deal of
this material will constitute too many grave difficulties in the
light of the Church regarding marriage. However, there is an issue
to which Paul Robbins briefly alludes. This has to do with the
actual wording of the Rite of Marriage. Whatever may be included in
the Catholic Rite (by way of its liturgy), it could be the situation
that a civil wedding could be reduced to something like: “do you
take him as your husband?” or do “you take her as your wife?” or
“you are now man and wife”. Questions can be asked such as (a) what
does the person understand by the term take (b) what does the person
understand by husband or wife?
There can be endless speculation as to whether a person would
under-stand that this is “giving consent”. What would be the
evaluation of the validity of a union of two persons in a ligamen
case? Assuming neither party is bound to the form of marriage,
there is now currently an assumption that two persons marrying in a
Register Officer are at least on the face of it marrying validly.
Would these new changes in the wording of the civil marriage rite
alter this assumption? Watch this space for developments.
Sister Veronica Vondenberger, RSM,
writes an Opinion in on Canon 1455 in Roman Replies and CLSA
Advisory Opinions 2002. The Opinion was given in connection with
information which emerged in the evidence of a nullity case which
involved a party’s sexual abuse by a priest. Monsignor Gordon Read
produces a comment on this whole matter at Document No.X
However, two points stand out for separate observations. It is
necessary to be quite certain that the Petitioner has advised the
witnesses that the evidence in the case can be read by both the
parties. It is even worthwhile ensuring – when the witnesses give
evidence – that they are aware that their testimony will be seen by
both the parties by way of the signature of the witness to a
statement to this effect. The other point is that if a person
reveals in the evidence that he/she has been sexually abused by a
priest, it is worthwhile that the Auditor indicates to the witness
or party that they should consider reporting this abuse.
Every year a Tribunal passes on to the
Diocese, Bishop’s Secretary or Vicar General, pages 5 and 6 of the
statistical questionnaire from the Secretariat of State. These are
the figures which are collected by the Editor of CLSN in
January/February for the previous year. These figures are also sent
to the Statistical Office of the Holy See at the Secretariat of
State. These same figures are collated for the CLS and annually
published in CLSN. (The number crunching is done by Father Peter
Kravos, the Judicial Vicar of Leeds). The figures sent to Rome
eventually appear about eighteen or twenty months later in a
publication called Annuarium Statisticum Ecclesiae. This is
the volume which gives all manner of information from the number of
Catholics in a particular country, to the number of priests
studying, to the number of Religious, to the number of youth
centres, hospitals, university faculties and so on.
It will be recalled that the Holy Father was misquoted in indicating
the vast rise in figures for nullity cases. These global statistics
are interesting when put alongside these horror stories. The global
statistics indicate that a number of Catholic marriages rose
globally by 22,050; where as the number of declarations of nullity
decreased by 1243. It is true that when examining global statistics
these figures are very small, but they do indicate a trend. The
global statistics for the Church for 2000 are at Document No. XI.
It will be recalled some years ago that
a draft document was sent to the Bishops of the world to do with
marriage nullity procedure. This was then being spoken of as the
post 1983 Provida Mater (which followed the 1917 Code, in
1936, i.e. some nineteen years after the first Code). This new
instruction Dignitas Connubii about nullity procedure follows
approximately twenty years after the 1983 Code. A press conference
was held to launch the document on 8 February 2005. There is a
lengthy account of who said what at the press launch (see Document
No.XII). A comment on the documents presently being prepared for
CLSN will appear when ready. In the meanwhile, the Document is
available at the St Paul’s Bookshop alongside Westminster Cathedral
(the volume is in Latin and English).
Each year the Holy See publishes
Relazione sull’attività della Rota Romana nell’Anno Giudiziario
2001. This appears in a publication called Quaderni dello
Studio Rotale, 12 (2002), libreria editrice Vaticana,
2003 (pp.171-199). Brother Brian J. Sweeney, FMS has translated this
material. The material itself is interesting in showing the general
directions of Rotal jurisprudence (see Document No.XIII). It has
been reproduced from the CLANZ Newsletter No.2 of 2004.
Father Bill Naylor of the Diocese of
Nottingham has recently completed a Master’s Paper on the
subject of The Nature of the Psychological Impact of the Marriage
Annulment Process within the Catholic Church on Participants. Having
completed his dissertation, Father Naylor is planning further
research and has designed certain questions to assist him in this
research. He has sent these questions far and wide (including CLSN).
It is obviously clear that whatever is gleaned by way of this
research will be of value to the country’s Tribunals.
The Annual Conference of the Canadian
Canon Law Society will be held in Saskatoon, Saskatchewan between
26th and 29th October this year. Quite apart from the canonical
jewels which will there be strewn, the cultural heritage is immense:
“connect to over 6000 years of history and culture at the Wanuskewin
Heritage Park, a United Nations world heritage site which predates
the pyramids of Egypt. Wanuskewin connects you with life and skills,
spirituality and cultures of the Northern Plains peoples…” Clearly
there is more to sample than Canon Law!
In Time of Need: Parishes and Canon
517, §2 contemplates a situation in which, due to a shortage of
priests, the diocesan bishop finds it necessary to entrust a share
of the sacramental pastoral care of a parish to someone else who has
not received the status of priest, or to a community of persons not
covered in Canon 519. This new text builds upon the experience of at
least one North American diocese in an attempt to implement the
Congregation for the Clergy Instruction, On certain questions
regarding the collaboration of the non-ordained faithful in the
sacred ministry of priests, 15 August 1997 in AAS 89 [1997]
852-877.
The text of In Time of Need: Parishes and Canon 517, §2 falls
into two parts: a focus on a parish without a resident pastor and
the teachings of the Church regarding the role of the priest in
parish life. Secondly, it discusses the role of the parish director
for pastoral care and the use of deacons and lay persons to
participate in that pastoral care. The text delicately balances the
requirements of the law and real needs; it avoids implementation of
the notions of convenience or some sort of ambiguous advancement of
the laity. In Time of Need: Parishes and Canon 517, §2 is a
handy and useful resource for diocesan and parish councils as well
as priests, deacons, and laity involved in parish life.
Non-canonists will find the text easily readable and a valuable tool
for individuals and groups whose efforts directly and indirectly
support pastoral care in the their parish or diocese.
Obtainable from CLSA Publications Office, Canon Law Society of
America, 108 N.Payne Street, Suite C, Alexandria, Virginia
22314-2906, USA. price (international) US $15. Credit cards
accepted.
