NEWSLETTER NO. 148 DECEMBER 2006
1. Holydays of Obligation in
England & Wales [Mgr Gordon Read]
2. Archbishop Milingo
Excommunicated [Mgr Gordon Read]
3. The Fight Against
Corruption [Pontifical Council for Justice & Peace] (21st
September, 2006)
4. Corruption and Canon Law
[Mgr Gordon Read]
5. Canonical Refelctions on
the "Difficult" Religious [Rt Rev John Jukes, OFM Conv]
6. Prerequisites for a New
Marriage [Mgr Gordon Read]
7. Music in Church [Mgr Gordon
Read]
8. Exclusion of Bonum
Coniugum - Decision coram Pinto (9th June, 2000)
9. Presidential Visit to
Sister Societies [Rev John Conneely]
10. The Legal Basis of the Title
"Defender of the Faith" [John Duddington]
On 20 July 2006 the President of the
Bishops’ Conference of England and Wales announced radical changes
in the celebration of Days of Obligation through the year. The
change is that the feasts of the Epiphany, the Ascension and Corpus
Christi will all be celebrated on Sundays. The existing discipline
that the feasts of SS Peter & Paul, the Assumption and All Saints
will be celebrated on a Sunday if the feast falls on a Saturday or a
Monday is retained. The new legislation takes effect from 3 December
2006 (first Sunday of Advent).
There is a very complex history of the observance of feast days and
Days of Obligation. This history is not only worldwide, but part of
it also specifically relates to England and Wales. For example,
prior to 1834 the Bank of England observed thirty-three Saints Days
which “were Bank Holidays”. In 1834 these Holydays were reduced (by
the bank) to four (1 May, 1 November, Good Friday and Christmas
Day). The suggestion that the Bishops’ Conference was “falling into
line with the rest of the world” is a clear exaggeration. The
suggestion that the change responds to “a large number of requests”
is certainly not established. Whether the change will achieve this
stated result (as implied in the Bishops’ Statement) is clearly
obscure.
Monsignor Read raises such points about the changes are: the changes
likely to enhance the observance of the remaining feast days (during
the week)? Is the right message being sent out? Does the change
diminish the primary feast of Sunday, given that many “themed”
Sundays now exist in the parishes? Monsignor Read’s comment on the
changes is at Document No.I.
It would be an exaggeration to say that
the most recent stages of the Archbishop Milingo saga has kept the
rest of the world on the edge of their seats. The story is well
known. The Archbishop was called to Rome for reasons disclosed at
the time in 1982, when he was given a special task involved in
migration and tourism. Then on 27 May 2001 he went through a bulk
marriage ceremony and married a Korean woman, Maria Sung (a bride
chosen for him). It was stated that neither could speak each other’s
language. The Congregation for the Doctrine of the Faith made a
public statement about all this on 17 July 2001. At that stage the
Archbishop was given certain instructions (which included separation
from Maria Sung)!
However, later on the Archbishop, on 24 September 2006, ordained
four priests as Bishops. The Holy See then addressed remarks to the
Archbishop indicating that because of this act of defiance of the
law of the Church, he had automatically incurred an excommunication
(latae sententiae) in accordance with Canon 1382. This text
is given in the Zenit of 26 September 2006 (Zenit: ZE06092606). It
was also reproduced in L’Osservatore Romano of 4 October 2006
(No.40, p.12).
Monsignor Read has explored the case very fully. He gives the names
of the four so-called Bishops ordained by Archbishop Milingo.
Monsignor Read also comments that the text of the document of
excommunication was issued by the Vatican Press Office rather than
by the CDF. It is also pointed out that the Church does not
recognise nor does it intend to recognise such ordinations or any
ordinations derived from them, and the Church holds that the
canonical status of the four alleged Bishops is the same as it was
prior to their ordination. (This is the same wording used about the
so-called ordinations to the episcopate carried out at Palma de
Troya. Although this background to the present situation has now
become history, as a result of the actions of Archbishop Milingo,
the Holy See set up discussions about precisely what happened and to
examine the situation that has developed following the disobedience
of Monsignor Emmanuel Milingo. (cf. Tablet, 18 November, 2006,
p.43).(See Document No.II).
One supposes the first representation of
the juxtaposition of corruption and Canon Law is in Part III of the
Godfather! However, the subject of corruption has been studied at
some considerable depth by the Pontifical Council for Justice and
Peace. It has issued a document entitled The Fight Against
Corruption, and it was published on 10 October 2006 (although
the document itself was dated 21 September 2006). The Pontifical
Council had organised an International Conference at the Vatican
between 2 and 3 June 2006. The document was produced by the
President of the Pontifical Council and the Secretary, Cardinal
Renato Martino and Bishop Giampolo Crepaldi. (See Document No.III).
In his commentary on the document, Monsignor Read first quotes (very
helpfully) at length from the Catholic Encyclopaedia: “the term
bribery is ordinarily used with reference to payments or other
lucrative consideration illicitly made in favour of persons whose
duty to the commonwealth binds them to act for the common good”.
Having looked at the whole concept of honesty and justice as they
are expounded in the Catholic Encyclopaedia, Monsignor Read then
starts to look at the Code of Canon Law. One of the special areas in
the Code are the procedural and disciplinary laws concerning the
administration of Tribunals; for example a person who has already
acted in one particular capacity in the case is then appointed to
another capacity which is inimical to the first one. There are
penalties for proven cases of corruption. Simony, of course, is the
oldest form of corruption related to holy matters. The whole scene
in the light of the document from the Holy See is reviewed by
Monsignor Read at Document No. IV.
Religious Superiors not infrequently
have experienced difficulties with their religious subjects; and
when such matters create severe problems of personality, emotional
involvement, obstinacy, genuine misunderstandings and sometimes
simple bloody-mindedness, Religious Superiors have their backs to
the wall; and is tempted to throw his hands in the air. It can
happen that in spite of the Superior spending hours listening to
complaints, seeking advice about the course to be adopted or the
determination as to whether there is a mental or personality problem
present in the Religious – little appears to work to resolve the
situation.
In his sensitive and helpful paper on this matter, Bishop John Jukes
points out that it is the responsibility of the local Superior – in
the spirit and in the letter of the particular law of the Institute
– to find a solution “in these cases, and if the difficulty
continues, then it is essential, for future action to be possible,
that records be compiled of the circumstances, and the actions taken
and the outcome, so as to allow the Major Superior to decide what
further actions might ensue. In my judgement it is not advisable for
the Major Superior to adopt the device of simply transferring the
person to another community”. Bishop Jukes further explores the law
for the assistance of Superiors. All of this makes very clear the
heavy role that a Superior undertakes when appointed or elected to
office. (See the commentary by Bishop John Jukes at Document No. V).
There have always been problems arising
from a person who marries following (part of) a nullity case, but
without all the necessary ecclesiastical requirements for a new
marriage. A not uncommon situation is the marriage of a person
before the whole nullity process has been completed, e.g. marriage
after a first affirmative decision. Two situations are possible: the
second union may be unlawful but in due time when there has been a
second affirmative decision, it could be regarded as a marriage. The
other situation is that after an affirmative decision is given in
First Instance there is a negative decision given in Second
Instance. If a person has married at that stage there are obviously
problems.
Some of these cases ( like the first above) require very different
treatment to the second marriage situation. A great deal of
discussion about the matter has taken place in the canonical “slot”
on the net and it is hardly a surprise that there should be a wide
set of views about the possibilities here. Occasionally such cases
involve the problem of public knowledge; but others do not. The
manner of handling such cases requires experience and a great deal
of commonsense. Experience and commonsense confirms what Monsignor
Read says at the end of his commentary on these particular points
“it is not wise to open a can of worms if you cannot get the worms
back in the can”. (See Document No. VI).
A number of questions have been asked on
the different internet sites about music in Church. The two basic
points have been raised, namely what music may be or should be
celebrated in Church; and when can Churches be used for the
performance of musical pieces. The first of these has most recently
been addressed on a chirograph on Sacred Music in the Church Today;
released in Italian on 3 December 2003. It was then made available
in English on 28 January 2004. There was some correspondence about
this in CLSN recently specially about the revised GIRM, as well as
other earlier documents.
The second question that is raised, and probably of recent date,
frequently concerns the use of Cathedrals and Churches for the
performance of music outside the sacred liturgy. The Congregation
for Divine Worship sent a Declaration to all the Presidents of
Bishops’ Conferences on 5 November 1987. Monsignor Read – has
re-examined the document at some length. However, the message in the
document is that it offers guidance to local Ordinaries. Monsignor
Read says: “I think the document is best regarded as a safeguard and
a protection against inappropriate use, rather than an attempt to
restrict the Ordinary’s right to make a decision based on concrete
local circumstances”. Monsignor Read predicts: “I suspect we have
not heard the last of this topic”. (See Document No.VII).
Little by little, cases to do with the
exclusion of the bonum coniugum are emerging from the Roman
Rota. Two such cases have recently been translated by Professor
Augustine Mendonça and printed in Studia Canonica. The first
of these two such cases was written by Monsignor Pinto of the Rota
on 9 June 2000; it appeared in Studia Canonica, Volume 39,
nn.1-2, 2005 at pages 271-288. This decision is reprinted here by
kind permission of Professor Mendonça and the Editor of Studia
Canonica. A second case on the same grounds coram Civili
(8 November 2000) will be printed in the March number of CLSN.
The Petitioner, even before the wedding, began to be uneasy about
his intended’s coldness towards him. However, the marriage was
celebrated in January 1974; and the Respondent left her spouse four
months later in May 1974; a divorce decree was made absolute on 29
March 1981. The Petitioner then civilly married. In 1996 he brought
a case before the competent Tribunal on the grounds of partial
simulation in the Respondent (exclusion of the bonum sacramenti).
The Respondent, after several unanswered citations, was declared
absent from the process in December 1996. Eventually the Litis
Contestatio was agreed in the First Instance as the grounds of
an intention contra bonum sacramenti and an intention
contra bonum coniugum in the Respondent. The First Instance
Court returned negative decisions on both grounds. The case was then
appealed to the Second Instance; and the Second Instance reversed
the First Instance grounds and, therefore, there were two
affirmative decisions given for the grounds put forward.
The case accordingly was referred to the Roman Rota, which dealt
with the matter on those same grounds. The Third Instance Court
noted, about the First Instance Sentence: “ the principal error of
the First Instance Court seems to consist in this: it denied that
there was proof of a positive act of will on the part of the woman
excluding the good of the sacrament and the good of the spouses
because there was no expressed confession, either judicial or
extra-judicial on the part of the Respondent concerning her
intention to enter upon a non-perpetual marriage and without the
obligation of procuring her own good and that of her spouse in the
communion of life, that is in the partnership of the whole life”.
There were also some divergences between the statements of the
witnesses. But the Rotal Court dealt with these in a very
commonsense and practical fashion; namely indicating there was a
considerable distinction between substantial differences and
apparent ones. “As far as the depositions and declarations of
witnesses are concerned, the undersigned Fathers hold that,
according to the jurisprudence of our Tribunal, the difference
between them is only apparent, and they, in fact, acknowledged and
confirm the Respondent’s intention to simulate, when properly
compared with the accessory circumstances, particularly of the
wedding day and the honeymoon. For the rest, the contradictions, or
whatever inconsistencies that are encountered during the process on
both sides, “should not be overblown, if despite their presence, the
issues and facts in their substance are found to be true” (cf.
Felici, 18 March 1950, in SRRDec.42 (1950), p.141, n.2). (See
Document No. VIII).
Father John Conneely, the President, has
travelled to two Conferences this year of other Canon Law Societies,
namely that in Canada and that in Fort Worth, Texas! Clearly, the
topics at both Conferences were absorbing, with some star names
involved in their presentation; as well as some rising stars in the
next collection of North American luminaries. It was so pleasing to
read that Monsignor Michel Parent has been made an honorary member
of the Canadian Canon Law Society. The locations of future
Conferences sound exciting – Niagara Falls, Quebec and Edmonton.
They will make attractive venues for the next President of the CLS.
There is something specially evocative about the location of the
Canon Law American Convention at Fort Worth near Dallas. Texas
sounds really exciting, specially the Conference Hotel being the
Renaissance Worthington which so many people associate with the
vigil of President Kennedy’s assassination. Since one of the topics
dealt with the exclusion of the bonum coniugum, it will be
interesting to read the Proceedings of the Convention when the book
appears. Apart from the presentation by Monsignori Boccafola and
Varvaro, there was a seminar by Doctor Lynda Robitaille. The United
States of America Canon law Convention marked the end of our
President’s canonical travels. He will stand down in May 2007 and a
new President will be elected. The gratitude of the Society can well
be expressed already to the President for all his hours of
Conferences, and even more hours of travel (sometimes not very
comfortable). (See Document No.IX).
Father John Huels of St Paul University
in Ottawa has recently launched the above book published in the
Gratianus Series by Wilson and Lafleur of Montreal. John Huels,
who lectures at St Paul University, wrote his book for Canonists and
Liturgists as well as students in the disciplines. The book covers:
the regulation of the liturgy; basic canonical concepts and rules;
ecclesiastical laws – documents of the Holy See; the adaptation of
the liturgy by law and custom; singular administrative acts (eg
dispensations, permissions, indults, faculties etc); the validity of
sacraments and sacramentals. There is a variety of appendices. More
information about the book may be obtained from Midwest Theological
Forum (mail@mwtf.org).
Some of the coins in Britain carry the
word FID.DEF; and others (the smaller coins) the initials FD: In
full FIDEI DEFENSOR. The original title was conferred upon Henry
VIII by Pope Leo X in 1521, not because the King was the author of
the Assertio Septem Sacramentorum (which he probably wasn’t).
It was probably as a result of some vigorous lobbying by Cardinal
Wolsey. The actual Grant by the Pope was to Henry personally; and
not to the English Crown in general. After the vicissitudes of
Mary’s reign, one of the first Acts of Parliament of Elizabeth I’s
reign was to join the title to the Crown. Hence, the title cannot be
changed simply by the personal wish of a new monarch. It would have
to be changed by way of an Act of Parliament. Clearly, “watch this
space”. (See Document No.X: Law and Justice, 2006, no.156, p.71 by
John Duddington).
The following notice appeared in
L’Osservatore Romano of 22 November 2006 concerning the
elevation of the Dean of the Rota:
“The Holy Father raised to the Episcopal dignity, Rev. Antoni
Stankiewicz, Dean of the Tribunal of the Roman Rota, assigning him
the titular Episcopal See of Nova Petra (15 November).
[Bishop Stankiewicz was born on 1 October 1935 in Oleszczenice,
Poland. He was ordained a priest on 20 December 1958 and holds
doctorates in Canon Law and Civil Law, with a specialisation in
pastoral theology. He has served as Professor of Canon Law, Judge
and Dean of the Tribunal of the Roman Rota and as Judge of Vatican
City State Court of Appeal]."
At the recent meeting of the Canon Law
Society of Australia and New Zealand, the election for Officers was
held. Father Ian Waters has been elected as the President. Many
members will recall the times that Father Waters spent in England
before going to study at Ottawa; and then during his time there on
his vacations, and on a number of other occasions. Father Waters is
the Judicial Vicar of the Melbourne Tribunal; as well as being an
historian of some note. Many will have read his learned papers given
at the Conferences of the CLSANZ and articles reproduced in CLSN
from the Newsletter of the CLSANZ. The good wishes of the CLS are
extended to Father Waters for a very happy and productive and happy
term of office.
