Monday, May 18, 2009

Canonical Conundrum

I would like to express my personal appreciation to Archbishop Apuron for reconsidering his decision to close the Friary to public Masses. My family and I, probably more than most, were personally affected by the decision as we have attended the Traditional Latin Mass at the Friary as celebrated by the Capuchins for over ten years. So we are extremely grateful.

In addition, I would like to express my admiration for the Archbishop. Due to the public uproar over the initial directive, it had to be very difficult for him to make a public retraction. I'm sure he was the recipient of many prayers. I wonder how many of us could have done the same?

But while there seems to be a happy ending, there are many who have been left personally unsettled or further embittered about many things concerning our Catholic Church on Guam.

Many are scratching their heads in disbelief that such a directive could have ever been made in the first place without the expectation of the huge public backlash that followed. This disbelief has given way to speculation of all kinds, and some of it not very charitable.

Some question the Archbishop's advisers, others his wisdom, and others are even suspicious of a political conspiracy.

I won't personally speculate. In business I see management make decisions every day that leave the "guys on the line" shaking their head in disbelief. As the son of a construction worker, I often listened to my dad share his frustration over the "bonehead" decisions of his boss.

As a person in management myself I made a business decision ten years ago that I'm still paying for. A decision that could have been avoided by simply communicating with the people that were at issue. Driving down the road on any given day I find myself slamming the steering wheel and shaking my head at the "stupidity" of my actions, even though it was ten years ago. Perhaps some of you can relate?

Stuff like this happens. What's important is how we respond. Every challenge offers us an opportunity to "get better or get bitter". You choose. I believe that the Archbishop, given the great humility necessary to make the public retraction, has chosen to get better. What we will do is the question.

Meanwhile, this incident has once again laid bare a nerve that threatens our Catholic community at a deeper level. And if I may, I would like to address it from my lay perspective.

The deeper issue I want to address is not "where the money goes", or political conspiracy, or even "Neo vs Non-Neo", all of which have been insinuated or alleged outright. The issue I would like to weigh in on is the proper response to a perceived clerical wrong.

Our Church, in Her deep concern for every soul, has insured that every Catholic, regardless of station, has the right to appeal a perceived clerical wrong. This care and concern is inscribed into the very governance of the Church in the Code of Canon Law, cannons 1732-1739, a section entitled: RECOURSE AGAINST ADMINISTRATIVE DECRESS.

A big part of our problem as laity is that we think we are powerless in the face of clerical decisions that we disagree with. Indeed, we are sometimes told that.

In the first days of this recent uproar, several people who regularly attend the noon Mass at the Friary sought an alternative at another Mass held at another religious community. Apparently the crowd grew so large, the priest felt the need to admonish those in attendance and criticized their presence at the Mass as an act of disobedience to the Archbishop. According to the person who shared this with me, the crowd was told that in Guam "the Archbishop is the Pope" and must be obeyed.

In the meantime I was watching emails fly back and forth between those who felt that silent submission should be the only response and others who felt the opposite. At my bookstore there was a long parade of many customers who felt the need to "unload" with considerable angst.

I would venture to say that the wound inflicted by the argument over how to properly respond to the Archbishop's directive was actually more egregious than the hurt caused by the closed doors at the Friary chapel.

This isn't the first time lack of knowledge over the proper response to the Archbishop's position on something has generated a backroom civil war in Guam's Catholic community. Such a war raged over the gambling issue, and continues to rage over the Archbishop's desire to see the Neo-Catechumenal Way welcomed in more parishes.

Not knowing what to do, and being told that any disobedience is improper, offended Catholics simply "blow off" their frustration publicly and the media is quick to grab the story, especially since such "active participation" of the laity is still an anomaly in Guam.

In short, the Church does not tell us to "sit down and shut up" as some might infer. The Church officially says "come unto me". And while the Archbishop's wishes as well as his person and his office should always be respected, he is not the "Pope on Guam".

And even if he was, where one can attend Mass, how one should vote on gaming, and even the decisions regarding the Neo-Catechumenal Way, do not qualify for the "infallible" category.

But that said, I now must spend a minute on what is meant by Faith and Morals. Some thought that the Archbishop's decision qualified for the infallible Faith category, because it concerned the "practice" of the Faith. Not true, Faith in the infallible sense refers to the magisterial Teaching of the Church on such things as the Trinity, the Real Presence, and the Marian Dogmas. Mass schedules and locations don't qualify.

As for Morals, some think that because gambling is a moral question that the Archbishop has infallible authority in this regard. Not true. While, it is a moral question, the Church does not magisterially proclaim that gambling is immoral as it does such issues as abortion and artificial contraception. (Would that we laity be just as concerned about those things our Church DOES magisterially teach!)

Where the Church does not officially teach the morality or immorality of something, Catholics are obliged to inform their consciences and grapple with the moral dimensions of the issue on a personal level.

Now that we have got that out of the way. Let's take a look at what we are SUPPOSED to do when we disagree with a clerical decision made by any member of the clergy, not just a bishop. This is a process known as "Hierarchical Recourse".

The first line of recourse is always:

“If your brother should commit some wrong against you, go and point out his fault but keep it between the two of you. If he listens to you, you have won your brother. If he does not listen, summon another, so that every case may stand on the word of two or three witnesses. If he ignores them, refer it to the Church.” - Mt. 18, 15-17

It is the "refer it to the Church" that is the subject of the following:

1. A written request must be made by the aggrieved party seeking from the person who issued the decree of the following:
• a request that the original decree be revoked;
• a request that the original decree by somehow changed or amended. (Can. 1734 §1)

2. The person making the challenge must do so within ten “useful” or available” days after receiving notification of the decree. (Can. 1734 §2)

3. If the author of the decree being challenged is directly responsible to the bishop, the recourse is made directly to the diocesan bishop (Can. 1734 §3)

Note: In this case, since the author of the decree was the diocesan bishop, recourse may be made directly to the appropriate Roman Congregation (usually through an apostolic nuncio).

4. The issuing authority has thirty days to respond to the request by the petitioner to modify or amend the original decree (Can. 1735)

After receiving the petition, the issuing authority has three options:
• Revoke original decree
• Amend the original decree in some manner
• Ignore the decree and not respond

If the author of the decree does not respond within 30 days, or if the aggrieved party is still not satisfied with the response of the issuing authority, the petitioner may appeal directly to the hierarchical superior of the decree's author; i.e., to the appropriate Roman congregation.

5. The author of the decree can decide to suspend the effects of the decree voluntarily. If the author does not suspend the effects of the decree within ten days, the petitioner is free to request suspension from the hierarchic superior (Roman Congregation). (Can. 1736)

6. The recourse can be transmitted directly to the Roman Congregation or sent to the author of the decree for immediate transmittal to the appropriate Congregation (Can. 1737 §1)

7. Those seeking to make recourse have the right to be assisted by an advocate. (Can.1738)

8. The hierarchic superior may respond to the recourse in one of several different ways:
• Confirm the original decree
• Declare the act invalid
• Order rescinding or revocation of the decree
• Amend the decree
• Replace the decree with one of its own
• Issue a new decree contrary to the original (Can. 1739)

9. If there is no response by the Congregation within three months, or if the complainant or the bishop has been notified by the Congregation of its decision in the matter, the case can be appealed to the next hierarchical level, the Apostolic Signatura, within thirty available days.

10. The complainant to the Signatura may seek recourse against what is believed to be violations of the law or against the procedures used by the Congregation in making its decision.

11. Recourse to the Signatura does not automatically suspend the previous decision of the Congregation (unless the universal law of the Church states otherwise.)

The bottom line is that there is always a door open to anyone who feels wronged by a clerical decision. But in order to make "hierarchical recourse" our "last recourse", may I suggest the following:

1. Clergy should do their best to communicate first with all parties that can be possibly affected by a forthcoming decision. While it is to the credit of the Archbishop and the Friars that an amicable solution was arrived at in the current matter, perhaps much of the damage control could have been done ahead of time.

2. A commission or council as suggested in Can. 1733 (below) to handle grievances is a good idea. If we already have one, then I don't know about it. If we don't have one, then we should.

3. Clerics should use incidents like this one to further educate the public on what the Church actually teaches about their rights instead of leaving them in the dark or worse, educating them wrongly as demonstrated above.

4. Lay people need to hold off on the media speed dial and pursue grievances according to the will of the Church. But of course, this presupposes that we know what to do and that is the responsibility of our pastors.

For your reference here are the applicable cannons:

Can. 1732 What is established in the canons of this section concerning decrees must be applied to all singular administrative acts which are given in the external forum outside a trial excepting those which have been issued by the Roman Pontiff or an ecumenical council.

Can. 1733 §1. Whenever a person considers himself or herself aggrieved by a decree, it is particularly desirable that the person and the author of the decree avoid any contention and take care to seek an equitable solution by common counsel, possibly using the mediation and effort of wise persons to avoid or settle the controversy in a suitable way.

§2. The conference of bishops can determine that each diocese establish in a stable manner an office or council whose function is to seek and suggest equitable solutions according to the norms determined by the conference. If the conference has not ordered this, however, the bishop can establish a council or office of this kind.

§3. The office or council mentioned in §2 is especially to be of assistance when the revocation of a decree has been requested according to the norm of can. 1734 and the time limits for making recourse have not elapsed. If recourse has been proposed against a decree, however, the superior who deals with the recourse is to urge the person making recourse and the author of the decree to seek a solution of this kind whenever he sees hope of a favorable outcome.

Can. 1734 §1. Before proposing recourse a person must seek the revocation or emendation of the decree in writing from its author. When this petition is proposed, by that very fact suspension of the execution of the decree is also understood to be requested.

§2. The petition must be made within the peremptory period of ten useful days from the legitimate notification of the decree.

§3. The norms of §§1 and 2 are not valid:

1/ for recourse proposed to a bishop against decrees issued by authorities subject to him;

2/ for recourse proposed against a decree which decides a hierarchical recourse unless the bishop gave the decision;

3/ for recourse proposed according to the norm of cann. ⇒ 57 and ⇒ 1735.

Can. 1735 If within thirty days after receiving the petition mentioned in ⇒ can. 1734 the author of the decree communicates a new decree by which he either emends the earlier one or decides that the petition must be rejected, the time limits for making recourse run from the notification of the new decree. If the author makes no decision within the thirty days, however, the time limits run from the thirtieth day.

Can. 1736 §1. In those matters in which hierarchical recourse suspends the execution of a decree, the petition mentioned in ⇒ can. 1734 also has the same effect.

§2. In other cases, if the author of the decree has not decreed the suspension of execution within ten days after receiving the petition mentioned in ⇒ can. 1734, an interim suspension can be sought from his hierarchical superior who can decree a suspension only for grave reasons and always cautiously so that the salvation of souls suffers no harm.

§3. If the execution of the decree has been suspended according to the norm of §2 and recourse is proposed afterwards, the person who must deal with the recourse according to the norm of ⇒ can. 1737, §3 is to decide whether the suspension must be confirmed or revoked.

§4. If no recourse is proposed against the decree within the established time limit, the interim suspension of the execution given according to the norm of §§1 or 2 ceases by that very fact.

Can. 1737 §1. A person who claims to have been aggrieved by a decree can make recourse for any just reason to the hierarchical superior of the one who issued the decree. The recourse can be proposed before the author of the decree who must transmit it immediately to the competent hierarchical superior.

§2. Recourse must be proposed within the peremptory time limit of fifteen useful days which in the cases mentioned in can. 1734, §3 run from the day on which the decree was communicated; in other cases, however, they run according to the norm of can. 1735.

§3. Nevertheless, even in cases in which recourse does not suspend the execution of the decree by the law itself and suspension has not been decreed according to the norm of can. 1736, §2, the superior can order the execution to be suspended for a grave cause, yet cautiously so that the salvation of souls suffers no harm.

Can. 1738 The person making recourse always has the right to use an advocate or procurator, but useless delays are to be avoided; indeed, a legal representative is to be appointed ex officio if the person making recourse lacks one and the superior thinks it necessary. Nevertheless, the superior always can order the person making recourse to be present in order to be questioned.

Can. 1739 The superior who deals with the recourse, as the case warrants, is permitted not only to confirm the decree or declare it invalid but also to rescind or revoke it or, if it seems more expedient to the superior, to emend, replace, or modify it.

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