NEWSLETTER NO. 157 MARCH 2009
1. Papal address to the Roman Rota
[29th January, 2009]
2. Decree on the Lifting of
Excommunications on the Bishops of the Society of St Pius X
(Congregation for Bishops) [21st January, 2009] & Comment (Mgr
Gordon Read)
3. Engaging with the State for the
Common Good: Some Reflections on the Role of the Church
(Archbishop Peter Smith)
4. The Bishop Emeritus (Bishop John
Jukes, OFM Conv)
5. Avoiding the Next Tsunami (Fr
Jerry J Pokorsky)
6. Does there exist an 'Internal
Forum' Solution for the Divorced & Remarried? (Rev John Boyle)
7. Prohibition of an Individual from
Receiving Holy Communion (Mgr Gordon Read)
8. Pluri-Intentional Masses: How
many Intentions? (Mgr Gordon Read)
9. Conformity of Sentences in a
Marriage Nullity Case (Mgr David Price Prot. Ap.)
10. More on the Bonum Coniugum
(Derek Vidler)
11. Exclusion of the Bonum
Coniugum: Interpreting and Assessing Evidence (Dr Lynda
Robitaille)
12. Decision coram Said
Pullicino [26th August, 2006]
The Holy Father gave his Annual Address
to the Dean, Judges and Officials of the Roman Rota on 29 January
2009. There can be little surprise that the Holy Father and the Dean
will have agreed the mainstream of the Pope’s Address. He
stressed-like his predecessor – the need to be ever aware of the
distinction between “incapacity to make a valid consent” and
“difficulty” to make such a consent. This is, of course, a
distinction which is always carefully made by the Judges Sentences
reproduced at MDGBI.
Another cause for all Judges to be aware of is the distinction
between the maturity which is the goal of human development on the
one hand, and that maturity (canonical maturity) which is the basic
minimum required to establish a valid marriage. The Pope, so
rightly, refers back to his predecessor’s Annual Address to the Rota
in 1987, which draws attention to the danger of the value of
marriage being destroyed by wildcat declarations of nullity. There
is always the possible danger – arising from canonical inexperience
– of confusion between mental incapacity and psychological
incapacity; one affecting the mind and the other the personality.
The Holy Father thanks the Dean, the Judges and Officials of the
Roman Rota and commends to them the observance of the teaching and
the procedural law of the Church in these matters; as well as
commending his listeners to the guidance of the Holy Spirit. This
obviously also applies to the members of Tribunals throughout the
world, the Judges, Officials and others. (See Document No.I)
Following the removal of the
excommunications of the four Bishops (Bernard Fellay, Bernard
Tissier De Mallerais, Richard Williamson and Alfonso de Calarreta),
it is worthwhile considering where the situation presently is with
regard to the SSPX. The Society of St Pius X has frequently stated
there are four elements to full reconciliation as far as they are
concerned: the freedom to celebrate the liturgy according to the
pre-conciliar forms; the lifting of the excommunications; the
agreement of a way ahead on disputing teachings on Vatican II; and
the erecting of suitable juridical structures for the Society. The
so-called Bishops mentioned above now have to approach the Holy See
in reconciliation and in submission to the teaching of the Church at
the present moment. However, it is a matter of some interest to
realise that within the SSPX there are persons who would regard the
present Pope as an excommunicate and who regard the Second Vatican
Council as an act of Modernism. Indeed, one priest in Northern Italy
has been expelled from the Society for uttering such statements in a
sermon on the Sunday following the removal of the excommunications.
There is still, therefore, the canonical background and framework to
be considered in connection with the Society of St Pius X. Obviously
this will depend upon the negotiations which will take place between
the four so-called Bishops mentioned above and the Holy See.
Clearly, there is a serious element of sedevacantism amongst many of
the members. Certainly, two of the requisites mentioned by the
Society of St Pius X have already been met. It is the third which is
going to create a considerable amount of theological trouble in
negotiations with the holy See.
In the meanwhile, the Church is still …… at the reaction to the
removal of the excommunications of the four so-called Bishops.
Clearly, what the Holy Father hadn’t realised was the views that had
been expressed by Bishop Richard Williamson, first of all in the
Swedish press; and then subsequently in a further interview in
Italy. Clearly, the position of Bishop Williamson cannot be
tolerated; but it is also equally clear that his views on the
holocaust have nothing to do with the removal of the
excommunication. Although the newspaper headlines will regard it
otherwise, there is a total separation between the two issues.
Clearly, Bishop Williamson has to retract his views on the holocaust
which he is probably in the process of doing; but the act of
submission following the removal of the excommunication on him will
have to be followed by a very sincere indication of his separation
from the views expressed to the views that the Holy See would wish
him to maintain. Most reasonable people would not regard this as a
blunder by the Holy Father but a lack of staffwork behind him before
he made his decision. The whole situation has been analysed by
Monsignor Gordon Read at Document No.II.
The Seventh Lyndwood Lecture was given
by Archbishop Peter Smith, Archbishop of Cardiff, on
Wednesday, 5 November 2008. The numbers attending were very
satisfactory and his topic "Engaging With The State for the
Common Good: Some Reflections on the Role of the Church" was a
topic of great interest at the present time. The paper itself
concerned the growth of secularism in the country and indeed
throughout the world. The very concept that “religion should be
regarded as a sphere of private life and individual conscience”
raises many challenging questions. For example, does a proper and
appropriate separation between Church and State mean that the Church
has no right or duty to be involved in politics? Do religious values
have any accepted place in political discourse? Does religion have
anything to contribute to the common good and the proper ordering,
development and flourishing of civil society?
The Bishops of England and Wales made a statement in their document
The Common Good in 1996 that the Common Good “is the whole
network of social conditions which enable human individuals and
groups to flourish and live a fully, genuinely human life, otherwise
described as ‘integral human development." All are responsible for
all, collectively, at the level of society or nation not only as
individuals.
Archbishop Smith thought that the declaration On Religious
Liberty (of the Second Vatican Council) accords very well with
the statements on religious freedom in the United Nations Universal
Declaration of Human Rights; as well as the 1950 European Convention
for the Protections of Human Rights and Fundamental Freedom. What
these documents are saying very clearly is that “everyone has the
right to freedom of religion and the right to express their religion
or belief alone or in community, in public and in private, and to
manifest that belief in observance, practise, teaching and worship.
The only restriction can be put on the exercise of that right is a
requirement to protect the public order or for the protections of
the rights and freedoms of others”.
All of this, however, has given rise to an emphasis on the term
Discrimination. Bishop Smith says “recent legislation seems to take
the view that all discrimination is wrong and must be outlawed by
the law of the land. To discriminate essentially means to make a
judgement and we do that perfectly properly everyday of our lives
and in almost every aspect of our lives. There is nothing
intrinsically immoral in discriminating, but there would be if that
discrimination is unjust. So the Church makes a proper distinction
and speaks of ‘unjust discrimination’ and would argue that because
of her understanding of human dignity and equality, unjust
discrimination is wrong – not discrimination in a vague and general
way”. The lecture analyses very helpfully the whole of this concept
of religious liberty, equality and discrimination. (See Document No.
III)
Pope Paul VI in his motu proprio
Ecclesiae Sanctae introduced the concept of the retirement of
diocesan Bishops and subsequently of Auxiliary Bishops. This was on
6 August 1966. On 22 February 1973, Pope Paul VI approved a
Directory on the pastoral Ministry of Bishops, which did not refer
to the retirement of Bishops; but subsequently on 31 October 1988,
Pope John Paul II approved norms in connection with retired Bishops.
Then a new Directory for Bishops was issued on 22 February 2004 and
then in the spring of 2008 the Congregation of Bishops issued a
document in Italian called Ill Vescovo Emerito. This document
gives much more detail in connection with the retirement of Bishops.
This is largely a non-legal document but gives guidance on certain
consequences and relationships resulting from the introduction into
the Church of retirement from the office of Bishop by reason of age.
An analysis of the documents mentioned above have been made by
Bishop John Jukes OFM Conv., the retired Auxiliary Bishop of
Southwark (see Document No.IV).
The US periodical The Catholic World
Report produced an article by Father Jerry Pokorsky in June 2008
entitled Avoiding the Next Tsunami; and it was sub-titled “A
new scandal looms over the Church: Lack of sound business
practices”. Certainly, a variety of financial scandals have appeared
reported in our newspapers (Catholic as well) throughout the world.
There was even one in east Anglia! The Church is in “the business”
of the salvation of souls, but administering parish finances and the
temporal goods of the Church is not unworthy of a priest who is
wholeheartedly dedicated to that mission. Just as fathers in
families are required to be attentive to the financial needs of
their wives and children, Pastors need to be attentive to the
financial needs of their parishes. (See article at Document No.V).
In the late 1970s, there was a flurry of
activity in connection with assisting people who had been
divorced and were remarried. The assistance being given to them
related to their reception of the sacraments. Sometimes this was
referred to as the Internal Forum Solution in which a confessor,
having heard what the penitent had to say, indicated that if the
penitent might decide to receive Holy Communion because of a flaw in
or maybe the invalidity of the former union.
There are other situations in which priests indicated that people
were not bound by former marriages which had broken down as a result
of the fault of the other party. A whole variety of solutions was
produced to assist people with their very real pastoral problems.
This continued through the 1980s until the beginning of the 1990s.
At that stage the Congregation for the Doctrine of the Faith
produced a document which indicated very clearly that such solutions
were not appropriate; and indeed were not allowed. The whole matter
of the Internal Forum Solution went quiet during the 1990s and in
the first part of the new millennium.
It has been thought appropriate that a paper on the background of
the whole matter at this stage might be appropriate, and one has
been especially written by Father John Boyle, the lecturer in Canon
Law at Wonersh on the topic with the title Does there exist an
Internal Forum’ Solution for the Divorced and Remarried? The
paper is reproduced at Document No.VI
Everyone is aware that abortion within
statute law creates serious difficulties for the Church, for
Bishops, for the local priest and the individual. An example of the
complexity of the issue was demonstrated last year in the united
States of America. The situation arose of Archbishop Joseph Naumann
of Kansas City making a public statement about a well known person
having to refrain from the reception of Holy Communion. The reason
was because of the person’s support for abortion.
The person was the governor of Kansas, Kathleen Sebelius. The
Archbishop issued a public statement in the local diocesan newspaper
in which he gave his reasons. This public statement had been put
into context by Monsignor Gordon Read with reference to the US
Bishops’ Statement on the matter in the year 2006; the arguments put
forward by Archbishop Raymond Burke in Periodica in the year
2007; and as well as the declaration of the Pontifical Council for
Legislative texts in the year 2000. (see Document No. VII)
This matter was originally dealt with in
a decree issued by the Congregation for the Clergy on 22
February 1991, and approved a month later by Pope John Paul II in
forma specifica. Rules for accepting several intentions to be
celebrated on the same day were clearly set out in this decree.
However, the legislation did not specify how many intentions might
be combined. This matter had been raised recently both on the
internet and through personal enquiries: namely, how many intentions
can be combined in a single Mass?
The legislation is examined by Monsignor Gordon Read; and he looks
at various scenarios in connection with the matter. He concludes
that that is no strict limit and there is no easy answer to the
question. He goes on to say that “each case must be judged on its
merits, but in the light of the principles already stated”. (See
Document No.VIII)
Monsignor David Price, the Judicial
Vicar from New Zealand, has written a lengthy and highly re-
searched paper on the conformity of sentence in marriage nullity
cases. Because this topic has been considered by Professor Augustine
Mendonça in CLSN No.144 in December 2005, the editor passed the
article by Monsignor Price to Monsignor Cyril Murtagh for
observation. Monsignor Murtagh says: “Monsignor Price offers an
historical oversight of what I would like to describe as a slow
outbreak of jurisprudential common sense, finally enshrined in
article 291 of Dignitas Connubii.
This happy situation has been slow in spreading, but is now
officially, but is now officially established as a jurisprudential
tool. Monsignor Price’s exhaustive treatment on the subject analysis
in detail, not only the development, but also the factors which lead
a Judge to pronounce equivalent conformity. In the case of his
painstaking examination of the history of this development,
Monsignor Price quotes from an article by Craig Cox, from the paper
by Monsignor Craig Cox given at the US Conference in 2000. Monsignor
Craig Cox gave a list of pairs of headings that had found favour in
local judgements utilising substantial conformity. The piece by
Monsignor Price is not only well researched but it has an extremely
helpful critical apparatus which should assist a Judge in the
future, in dealing on appeal with a conforming sentence. (See
Document No.IX).
Doctor Lynda Robitaille gave a paper at
the 68th Annual Convention of the Canon Law Society of America in
October 2006 at Fort Worth in Texas. Her paper concerned
Exclusion of the Bonum Coniugum: Interpreting and Assessing Evidence.
She made a very detailed study of a sentence coram Turnaturi,
already produced in CLSN in December 2007. The decision was given on
13 May 2004. CLSN also reproduced a sentence by Civili on 8 November
2000. Because the paper was tightly argued and well drawn, the
Editor asked Father Derek Vidler, the Judicial Vicar of the
Southwark Metropolitan Tribunal, to write an overall comment on the
topic.
As Father Vidler himself said: “Doubtless we are at the beginning of
a process of discerning what the Ordinatio to the bonum
conigium entails. It will help the process of nullity by asking
in depth what did the couple intend when they got married? How did
they understand the mutual give and take that marriage involves? How
prepared were they to view the good of the spouses? What did this
entail? Were they capable of giving an accepting each other as
husband and wife? These were some of the questions that Father
Vidler has produced in connection with his study of the paper by Dr
Robitalle. (See Document No X and No.XI) The paper by Dr Robitaille
has bee reprinted by permission of the author and of the Editor of
Proceedings of the 68 Annual Convention of CLS. (9-12 October
2006, Fort Worth, Texas, pp.149-168).
The case was heard before the
Metropolitan Tribunal of Malta in 2006 on the grounds of the lack of
due discretion. The Ponens was Monsignor Arthur Said
Pullicino. The case concerned Robert and Catherine. Since childhood
Robert, the Petitioner, had suffered very serious kidney problems.
Although Robert told Catherine of the problems, he did not elaborate
on their gravity. The couple married in 1997; but within a few
weeks, Robert’s condition worsened very considerably and for 18
months he was on dialysis. He then had a kidney transplant (provided
by his mother).
As a result, his overall physical health improved, but his intimate,
emotional and sexual life completely changed. He became unacceptably
sexually demanding upon his wife; and he had an affair which did not
break up even when the Respondent became pregnant. Eventually a
separation took place in 2005 and Robert petitioned for a Decree of
Nullity of the union. He initially claimed the grounds of total
simulation on his part and inability to assume the obligations of
marriage on the part of the Respondent. Eventually the agreement of
the point at issue was settled as the lack of due discretion in the
Petitioner.
The case turned on the severity of the Petitioner’s kidney condition
which was an inflammation of both kidneys with no cure except for a
possible kidney transplant. The Court found, by means of a barrage
of medical reports, as well as other evidence, that the Petitioner’s
discretion of judgement was severely impaired due to blood
poisoning. A medical report said that because of Robert’s state of
health, his intellectual and volative faculties were severely
impaired at the time of the marriage. An affirmative decision was
given, and a restrictive clause place don the Petitioner. This
sentence has been reproduced from Forum, Vol.17, No.1, 2006,
pp.196-217, by the kind permission of the Editor. (See Document
NO.XII).
The President, Monsignor David Hogan,
has written to the new Bishop of Hexham & Newcastle sending him the
congratulations of the Canon Law Society. (See Document No.XIII).
Canon Law Digest: Latest Edition
The Canon Law Society announces the
publication of Canon Law Digest XIII. This edition has been edited
by Father Patrick Cogan and the new volume covers the years
1991-1995. As is well known the volumes of CLD present officially
published documents affecting the Code of Canon Law. The publication
includes a detailed index as well as a chronological index of the
documents, and each entry includes where the official text may be
located. The price is $65. it is has 778 pages. It may be obtained
from:-
CLSA Publications, PO Box 463, Annapolis Junction, Maryland
20701-0463,USA. The telephone number is (301) 362-8197; the fax
number is (301) 206-9789.
In the Service of Truth and Justice:
Festschrift in honour of Professor Augustine Mendonça
This Festschrift has been edited by
Father Victor George D’Souza of St Peter’s Pontifical Institute,
Bangalore. It can be obtained for $25 from:
The Treasurer, St Peter’s Pontificla Institute, Malleswaram West,
PO, Bangalore 560-055, India.
Ad Justitiam Promovendam: Festschrift in honour of Monsignor Roch
Pagé, Professor Emeritus of St Paul University.
This can be obtained from:
The Faculty of Canon Law, St Paul
University, 223 Main Street, Ottawa, Canada K1S 1C4
Some members will recall an Australian
Canonist from Brisbane who was the Founder of the Canon Law Society
of Australia and New Zealand in 1967. He was Doctor Owen Oxenham, a
figure larger than life, who injected his enormous enthusiasm into
whatever he did. One of the thing that he did was to found the
CLSANZ, In recognition of his work for Canon law, the CLSANZ in 1994
established the Owen Oxenham reward. The award has only been made
once before, namely to Father Frank Harman of the Diocese of
Melbourne on 8 December 1994. The Executive Committee of the CLANZ
has now awarded this distinction to Bishop Geoffrey Robinson in
recognition of his outstanding service to Canon Law in the Society
on 17 September 2008 at the Annual Conference held in Adelaide.
In the September number (2008) of CLSN a
paper was produced as Document No.II (pp.15-16). The document
concerned the implications of invalid baptisms. This was attributed
by the Editor to Father John Boyle. In fact, the document was taken
from the “blog” of Father Timothy Finnigan, which can be found on
hermeneutic-of-continuity.blogspot.com/2008/03/consequence
of-invalid-baptisms.html. Apologies are offered to Father Finnigan
and to Father Boyle. On page 1 Father Boyle is described as
lecturing in Theology at Wonersh. In fact, Father Boyle lectures in
Canon Law at Wonersh. Further apologies are offered to Father Boyle
for this mistake.
Due to circumstances beyond his control
the Editor spent October 2008 until January 2009 in hospital.
Happily the December number of CLSN had been prepared and had been
sent off for typing in the first week of October. Then the sword of
Damocles literally fell upon the Editor’s left leg in mid-October.
Happily the corrections of the text and proof reading were taken
over by a former Editor, Father John Chaloner. The text was sent to
the printers in December.
In the meanwhile, I received nothing but volumes of get well
messages, prayers and Masses together with a vast number of visitors
at St Thomas’ Hospital. I was treated to brilliant medical
attention, and wonderfully kind care. Indeed, I was very sorry to
leave St Thomas’ and go for concentrated physiotherapy to a
rehabilitation centre in the middle of London, which I termed a
“boot camp”. However, I was equally happy there with super care. I
had to vacate my flat at Vaughan House as unsuitable for a
wheelchair and have now come to St Wilfred’s Convent n Chelsea’s
Tite Street. alongside the Chelsea Pensioners Hospital. I have
settled down with lovely Sisters and superb carers in my new home.
I would like to thank Father John Chaloner for all his work on CLSN;
and all those who sent good wishes, prayers, cards, Masses and
visited me between October 2008 and January 2009. This has been a
very remarkable experience in my life.
