NEWSLETTER NO. 159 SEPTEMBER 2009
1. Use of 'the Name of God' in
Liturgical Context (Mgr Gordon Read)
2. The Approach to a Particular
Situation of Multiple Marriages (Paul Robbins)
3. Irremediable Nullity of a Decree
of an Appeal Tribunal (Prof. Augustine Mendonça)
4. Inter-Relationship between Canon
1095, n2 and n3 (Mgr Cyril Murtagh)
5. Non-Acceptance and Transfer of a
Marriage Nullity Case (Mgr Gordon Read)
6. Book Review: "Associations of the
Faithful" by Cardinal Martinez Sistach (Mary Alicia Sloan)
7. The President's Travels During
2008 (Mgr David Hogan)
8. Letter of the President to Rt Rev
Richard Moth [28th July, 2009]
9. Press Release: New Catholic
Forces bishop
10. On Instructing a Case for the
Dispensation of a Marriage Super rato et non consumato
(unofficial translation) (Congregation for Divine Worship & the
Discipline of the Sacraments) [20th December, 1986]
11. The Privileges of Cardinals (Mgr
Alan R A McCormack) [15th April, 2003]
Those who were present at the CLS
Conference in Rome in May last year will recall a paper given by
Archbishop Francisco Coccopalmerio. In his paper he tantalisingly
alluded to the Revision of the Law and adding to the 1983 Code.
Moreover, after the members returned from Rome the Archbishop went
even further and invited Canon Law Societies around the world to
assist in this exciting task.
In consequence, the President has
held a number of meetings and has come up with a plan for the CLS
to take part in this project. Members will recall that the President
made reference to all this at the Aviemore CLS Conference.
The President has created a two-tier
structure to deal with this new project. He has asked a number of
people in England to act as an ad hoc group. The purpose of
this group will be to act as a filter for ideas and suggestions
which might point towards the call for a revision or addition to the
Code. The members of this ad hoc group are, besides the
President himself, Monsignor John Conneely and Fathers Fintan Gavin,
Bill Agley and James O’Kane.
At the level above the ad hoc
group he has asked Father Aidan McGrath OFM and Sister Rachel
Harrington SND to help. Father McGrath is now in Rome acting as the
Secretary General to his Order. Sister Rachel has completed her five
year appointment to the governing body of her Order and she is now
based in England. The President will be attending the two
Conferences in North America and will have discussions on this whole
matter with the Presidents of those two Societies together with
Father Ian Waters, the President of the CLSANZ who will be giving a
paper at the USA Conference. Father Aidan McGrath’s address is Curia
Generalizia dei Frati Minori, Via S. Mediatrice 25, 00165 Roma,
Italy. E-mail: AIDANOFM@hotmail.com
No.41. of the Instruction
Liturgiam Authenticam already prescribed that the
Tetragrammaton should not be used in any liturgical celebration.
With a view to making this quite clear, the Congregation for Divine
Worship and the Discipline of the Sacraments issued a letter to all
Conferences of Bishops on the subject.
The requirement of the original
document was re-stated, namely that in vernacular translations the
liturgical texts must follow the Septuagint and the Latin tradition
of substituting Dominus (Lord) for the Tetragrammaton.
This has relevance in the present new translations of the liturgy
and for composers and pastoral musicians. (See Document No.I).
A paper, written by Paul
Robbins, deals with the practical situation of multiple marriages
and the defect of form and ligamen. The author examines the
situation of Mary and John (neither are Catholics) who married in a
Register Office, a divorce follows and John then marries Sarah. This
union was then followed by a divorce. Question: is Sarah allowed to
marry Peter in the Church?
Next scenario: Mary and John marry;
they divorce; John marries Sarah; they divorce. When questioned
Sarah says that she thinks Mary may have been a Catholic. The
authorities explore whether – in this case following what Sarah has
said - the marriage of Mary and John (both of them non-Catholics)
can be investigated in their absence.
In his exploration, the author – when
dealing with lack of form cases – makes reference to the fact that
some Canonists see the lack of form marriage as not even enjoying
the species matrimonii, and therefore not subject to the
usual nullity procedure. The author does not hold this view although
he acknowledges that some Rotal Judges do. This point is obviously
one for discussion as well as the tentative conclusions reached by
the author. Other readers may have different views. (See Document
No.II).
Professor Augustine Mendonça
contemplates a problem about an appeal and a plaint of nullity –
with his usual equanimity and thoroughness. The problem is this: a
First Instance Court gives a negative decision in a case. The
Petitioner “lodges an appeal against the decision”. However, matters
are complicated by the fact that the Petitioner in his appeal
alleged “that the First Instance Court had not examined the evidence
properly and had displayed a certain bias against the Petitioner”.
But, instead of dealing with this
matter by way of an appeal, the Second Instance Court decided that
this was a plaint of nullity; and there followed a number of
procedural improprieties, which rendered this response by Second
Instance as itself invalid. In his extremely thorough reply to the
question, Professor Mendonça considers the distinction between an
action and an exception. He considers three
ways of introducing a plaint of nullity. Absorbing as all this is it
would seem to many people that a phone call from the Second Instance
Court to the Petitioner would have revealed whether he was merely
appealing against the First Instance negative decision or alleging a
nullity of the decision itself. However, such a phone call would
have disallowed all the procedural good things which have been
revealed by Professor Mendonça. All of this underlines the fact that
if the proper procedure is not followed, there will inevitably be
trouble. “As mother used to say: ‘it will all end in tears’”. (See
Document No. III).
Canonists in pursuit of their task
invariably seek “water-tight definitions”. However, a watertight
definition of a unique and personal relationship is hardly possible.
Monsignor Murtagh explores this difficulty. He says in many cases
grave lack of discretionary judgement leads us to consider whether a
person with such a deficit is even able to undertake and sustain the
necessary obligations of marriage. He goes on to say: “If he is not
able to see these elements clearly, how can he undertake them (and
vice-versa) with Canon 1095 no.3”. He goes on to say that in the
light of all these considerations “we are forced to admit that we
are dealing with descriptions rather than definitions”. What do
Judges think about all this when they come to make their decisions
in nullity cases? Perhaps this point may be addressed by others who
think of descriptions rather than definitions. (See Document No.
IV)
There has obviously recently been a rash
of nullity petitions rejected or passed to other Tribunals.
This has been discussed on the web. Of course, nullity petitions can
be rejected but not just by means of a negative letter. There is a
procedure to be followed. Clearly - as is clear from discussion of
all this on the web – the procedure has not been followed. There is
also evidence of a competent Tribunal not wishing to accept a case,
and merely passing it on to an equally competent Tribunal. All of
this gives rise to Monsignor Gordon Read setting out very clearly
the procedure for the acceptance of a libellus and its
rejection. He indicates that the procedure (very helpfully
legislated for in Dignitatis connubii) clearly tends to the
side of acceptance of any libellus when it is possible to do
so. (See Document No.V).
The
Archbishop of Barcelona, Cardinal Martinez Sistach is a member of
the Council of the Laity. He has written a book on Associations
of the Faithful (2008). The book – apart from its theological
and canonical introduction - is a very practical help for the
Canonist who is involved in some way with public and private
associations of the faithful; the compilation of statutes and their
canonical erection. Some helpful comments are made about a confusion
concerning ecclesiastical oversight of supra diocesan
associations. The author also draws attention to the great
number and variety of “new movements” which have arisen in the
Church in recent decades. It is difficult to fit some of these into
canonical categories (a prime example here would be the Neo-Catechumenate
– until their statutes were approved by the Holy See). The author
suggests a “flexible interpretation of present canonical norms to
accommodate them seems more prudent than the hasty adoption of reams
of new legislation”. The reviewer commends this handbook for anyone
with an interest in this topic. (See Document No. VI).
One of the “perks” of the Presidency is
the need to travel the world. Some, of course, travel to give papers
on learned Canonical topics; but there is a need, now well
discovered for the President to mingle with the members of other
Canon Law Societies. Not only does this afford a basis for
networking; it also provides the opportunity for discussion between
Presidents (as demonstrated by the recent call by Archbishop
Coccopalmerio to assist with future revisions to the Code). One of
the things which seems to emerge from the account of the President’s
travels in North America is the good esteem in which the Canon Law
Society is held by members of other Societies. It is hoped that the
account of the President’s travels in 2009 will be available very
soon. (See Document No. VII).
Information just to hand
reveals the good things that the President of CLSGBI will be
enjoying on his trip to the Canadian Canon Law Society Convention in
Edmonton in October this year. Amongst other topics will be papers
on “the implications of the Vatican Instruction Dignitas Persona"
(Mr Gordon Self); recent developments in Privilege of the Faith
cases (Reverend Wojciech Kowal OMI); New Canonical Implications of
Clerical Incardination (Reverend Roger Keeler); and a panel
discussion on “Formal Defection from the Faith”. There will, of
course, be a variety of seminars and discussion groups. Our
President will report on these on his return.
Among the topics to be addressed at the
US Convention will be "Error" (Reverend John Beal); "The
Remuneration of Clergy" (Reverend Patrick Lags); “Continuity or
Disjunctive Conflict: the third edition of the Missale Romanum"
(Monsignor James Moroney); "The Relationship between the victim
assistance coordinator and canonical personnel" (Ms Amy Jill
Strickland); and a paper by Father Ian Waters (President of the
Canon Law Society of Australia and New Zealand) on “Procedural Law:
Suggested Revisions after twenty-five years”.
The Society sends its warmest greetings
to the new Bishop of the Diocese of Oran in Argentina. He is
Monsignor Marcelo Colombo of the Diocese of Quilmens. He was
Consecrated in the Cathedral Church of Quilmers on Saturday 8
August. The new Bishop has been a member of the CLS for many years.
Indeed, CLSN (March 1996, No.105 at Document No.VIII) carried a
resumé of his doctoral dissertation on “The Protection of Privacy
and the Psychological Examination for Admission to Priestly
Formation”. Many congratulations to the new Bishop. Ad multos
annos.
All the members of CLS will have been
quite delighted to read the news that Monsignor Richard Moth (VG of
Southwark) had been appointed as the new Bishop to the Forces. His
Episcopal Consecration will take place on 29 September at
Westminster Cathedral. The press release is reproduced at Document
No. VIII. The President has written a letter of congratulations to
the new Bishop (reproduced at Document No.IX). The whole Society
sends its very sincere congratulations to the new Bishop. Happily,
because the Episcopal Ordination will take place at Westminster
Cathedral, there will be space for all his diocesan colleagues and
lay friends, and for the members of the Forces and especially for
his colleagues in the Knights of the Holy Sepulchre in which he has
played such an important role for so many years. Warmest
congratulations from the Society: Ad multos annos.
In July this year the Apostolic Nuncio
for England, Wales and Scotland sent to the Bishops a letter from
the Congregation for Divine Worship and Discipline of the
Sacraments. Part of this letter seemed sadly plaintive. The
Congregation on 20 December 1986 had issued some Litterae
Circulares on the manner of dealing with super rato
cases. This new letter (July 2009) said: “The office for matrimonial
cases had noticed the lack of applications for super rato
cases; and indicated that this might show a feeling by local
Tribunals that the super rato process was “an inferior
process in comparison to that for nullity”. Having said all this,
the Congregation sent the 1986 document again, together with a
pro memoria about the procedure (actually this is an abbreviated
summary of the whole process). The pro memoria which is
enclosed at Document No.X is an unofficial translation. The original
document of 1986 appeared in Communicationes 20 (1988),
(no.1, pp.78-84).
The “Privileges of Cardinals” may sound
a pretty dull subject. However, the Editor recalls spending some
three or four classes in 1957 in Allen Hall examining the Rights and
Privileges of Cardinals. The sort of consideration for the students
at that time was what particular issues were involved if a Cardinal
died on a ship tied up in the pool of a harbour but not alongside a
quay!
Dull as it all sounds, a paper was
written by Monsignor Alan McCormack, printed in Studia Canonica
(37, 2003, pp.125-162). This paper produces some fascinating
canonical questions as well as an amusing history. In October 1981
there was a plenary assembly of the Pontifical Code Commission.
After some four days of the meeting, ten Cardinals submitted an
observation that the Canon which listed certain “Privileges of
Cardinals” had been entirely suppressed. The Secretary of the Code
Commission was Archbishop Rosalio Castillo Lara. He was asked to
explain this omission.
Prior to the reign of Pope John XXIII,
there were Cardinals who were not bishops. A number of
ecclesiastical and theological problems were raised in the early
days of Pope John XIII’s reign in anticipation of the Council. The
matter became acute and it was pointed out that Cardinals who were
not Bishops had a deliberative vote at an Ecumenical Council. Pope
John XXIII decreed in response to this observation that all
Cardinals (now and in the future) were to be ordained Bishops. Four
days later the Pope ordained twelve Cardinals to the Episcopacy on
19 April 1962. In the paper written by Monsignor McCormack there is
a very interesting footnote no.10 which names those who were
Consecrated – including Cardinal Ottaviani, Head of the Holy
Office, probably the most powerful person in the Church below the
Pope.
Archbishop Castillo Lara responded to
the question asked by the Cardinals. He said that there was no need
for the presence of special Canons on this matter. A number of the
prerogatives had been made obsolete in the reformed law; while the
rest, now common to all bishops, had become redundant since all
Cardinals were now Bishops! However, sixteen years later after
promulgation of the Code a document was issued by Cardinal Sodano,
the Secretary of State on 18 March 1999 called Elenchus
Privilegiorum et Facultatum S.R.E. Cardinalium in re Liturgica et
Canonica. One can imagine what went on behind the scenes for
the production of the new document. Monsignor McCormack studies all
these “Privileges and Faculties” and compares them with the laws
relating to Bishops in general. All of this is extremely
interesting, but probably the most interesting point of all is an
examination of two terms “privilege” and “faculty” (in general being
omitted from the universal Llaw of 1983). A second point concerns
the reason why the 1999 document is called a Rescript.
Monsignor McCormack considers these inconsistencies; and he
indicates that some of these may have been caused by inadequate
editing; but he suggests that “the text drafted according to the
habits of a former generation in a conventional language paid
insufficient attention to the revised 1983 law; and the
terminological changes introduced in the New Code”.
Elsewhere in this number of CLSN, there
is mention of revisions and additions being made to the law through
the work of the Council for the Interpretation of Legal Texts and
the overtures already made by the Prefect of the Council, Archbishop
Coccopalmerio. (See Document No.XI).
