Monday, 23 January 2012

Do they never give up! Bishop Morris and the curse of too many lawyers...

Eureka Street is at it again today, agitating for the cause of Bishop Morris by highlighting to legal opinions prepared (and actually released) late last year (thanks to the person who alerted me to their presence on Eureka Street).

The opinions are long and naturally full of legalese, but the substance of them seems to be that while canon law doesn't provide a process for the dismissal of a bishop it should, and that by the way the one actually used in the case of Bishop Morris is not good enough for them.

I'm not going to bother going though either Fr Hamilton's piece on the subject, or the opinions themselves. I just want to make a few key points.

The legal disease

First, it must surely be obvious to all concerned that prolonging this debate is unhelpful to everyone.  The statements made by our bishops after the Ad Limina visit last year were trying to bring some closure on this issue, and we should accept the Pope's prudential decision whether we agree with it or not.

Secondly, I'd note that the kind of creeping legalism reflected in this latest attack is a disease that really needs to be resisted in Australia, and not just in the Church. 

There is a big difference between the desire to improve transparency and accountability in the church, and creating make work for the lawyers.

The issue at stake here is not, as Fr Hamilton claims, whether natural justice should have been afforded to Bishop Morris: no one disputes that, and to suggest that they do is just plain scurrilous.

No, the issue is rather the content of natural justice, exactly what it requires. 

I for one think that a ten year series of exchanges in which it was perfectly clear what the issues in dispute were is more than enough by way of affording natural justice! 

I for one think that to claim that the bishop was denied natural justice, when the subsequent process being complained about was put in place because Bishop Morris actually rejected a request to go to Rome and make his case, is laughable.

The Liberals though, think that the magisterium of one bishop, who doesn't accept that he is not teaching what the church teaches, should prevail over that of Peter.  And they think that the bishop (or rather his lawyers) should be able to see and respond to every single piece of paper written about him.

In Australia, the legal empire has been working assiduously to ever expand its reach.  They have systematically dismantled the common law regime we inherited and set about inventing their own theories of what 'procedural fairness' requires - which unsurprisingly mostly seems to end up meaning the involvement of lots of lawyers on all sides of any administrative decision-making process. 

Well, I guess one has to find something for all those lawyers to do - the number of them after all doubled between 1986 and 2006.  Has the quality of decisions improved to reflect this 'added value'?  Quite the reverse in many cases I would suggest.

The parish priest process

I'd also note that there is a certain iron in the Judge's opinion, which advocates essentially using the process for removal of parish priests for bishops. 

These days, many bishops, especially of the liberal colour don't actually appoint many parish priests, precisely in order to avoid according them the right to challenge precisely these kind of decisions!  Instead we have seen a huge growth instead in time limited 'Administrator' appointments... 

The Pope and the bishops

The bottom line of the Morris case was always about the liberal claims that bishops are pretty much emperors in their own domain, free to ignore the Church's law and disciples at will. 

It's the old Ratzinger vs Kaspar debate writ large on which comes first, the universal church or the local one. 

It's the protestant virus that seems to have infected all too many bishops today.

The Pope, by contrast, actually believes that 'one, holy and apostolic Church' bit of the Creed.

In this week of the Christian Unity Octave, let's pray for the Pope, his reform efforts, and the restoration of unity with Peter on the part of dissenters:

"That they may all be one, as thou, Father, in me, and I in thee; that they also may be one in us: that the world may believe that thou hast sent me.

I say to thee, that thou art Peter.
And upon this rock I will build my Church.

Let us pray.

O LORD JESUS CHRIST, who didst say to thine Apostles: Peace I leave with you, my peace I give unto you: look not upon my sins, but upon the faith of thy Church; and vouchsafe unto her that peace and unity which is agreeable unto thy will: Who livest and reignest God for ever and ever. Amen."

23 comments:

Schütz said...

It isn't actually tbe Week of Prayer for Christian Unity here in the Southern Hemisphere, Kate. That comes in the Seventh week of Easter for us.

Kate said...

It is in the EF calendar....

Brendan said...

Even in Toowoomba today, the Communal Rite of Reconciliation is still not celebrated correctly at most parishes, but I'll wait for a new bishop to be appointed before referring this issue to him.

I think it's totally disingenuous for Bishop Morris to publically professes his love for the church, while for the last eight months or so has lashed out at the Pope and the Holy See, numerous cardinals and bishops, numerous orthodox Catholics, and incited hatred and discontent of the church amongst Catholics and the wider Australian public. When one acts and speaks in a loving way, one doesn't need to publically profess how much he loves that person, or that institution, because everyone knows it from his words and actions. One only does this when one doesn't love at all.

And compare Morris's vindictive behaviour against the church to those well known saints over the years who really did suffer major injustice against them from church authorities, but chose instead to suffer in silence and offer their pain as penance.

Is there any doubt that Bishop Morris is out for revenge and to cause as much trouble for the church as possible.

One would be hard pressed to name another person sacked from his job and eight months later the issue was still being discussed as though nobody anywhere has ever been subject to such treatment.

A Canberra Observer said...

Like Brendan, I find everything I hear about what Bp Morris says or has said to be disingenuous. Today's piece in CathNews recounted his 'hurt' at being 'ambushed' in Rome over the 3rd rite and 'not knowing who his accusers were'. All obfuscation about whether he engaged in wrongdoing and whether it was wilful. (One wonders what he might have done with the knowledge of who his accusers were.) Of course my comment along these lines was not published on the 'oh so open' CathNews.

Trouble is there is a whole cohort of clergy formed in the same 'local church' (aka protestantism) in that diocese, so even if there is a 'hero' bishop appointed he would have a very hard job.

Finally, if those handling this in Rome did fail to adopt a thoroughly proper process that is disappointing. Good regulation, secular or clerical, relie on good process. It is sad if a correct decision (eg right but perhaps for the wrong reasons) falls over or has to be remade.

Kate said...

There is no basis whatsoever that I can see for the claim that Rome failed to follow proper process, or that the decision could somehow fall over.

First, they did follow a process - its just not the one the locals want based on the lawyer-inflated current state of civil law. But it is one that is perfectly proper - an analogy might be the case of a Minister losing confidence in the Secretary of a Department. In such a case, the Australian courts have held that the Secretary concerned is not entitled to get a blow by blwo account of what caused the breakdown in the relationship.

Secondly, I very much doubt whether any Australian court would hear the case - no jurisdiction given that for a starter this is not an employer-employee relationship!

Carob_molasses said...

Kate, there is an accountability issue here, of curial bureaucrats and the Pope to the Bishops and the baptised!

They arent playing 'Simon Says' - they have (legally delimited) roles.

Remember Kate, the Pope is not infallible because he is a philosopher king or an oracle of truth, and he can make big mistakes on anything to do with practical life, - his own life, his political realms (if he has them), and the prudential and quotidian bits of the church where his teaching magisterium is not invoked. Dont make the papacy into the Magically Perfect CEO! - it is exactly this attitude that created gallicanism, protestantism etc as a reaction to patently stupid (and superstitious) over-trumping of papal power/genius!

While the lefties have probably over-egged the pudding and Bishop Morris's letter with options of women priests was bloody horribly awful, the Romans should have played by a better set of rules, and nailed it all down so that their actions were totally agreeably comprehensible and untouchable.

The Morris case is frustrating because I would have liked action to be taken on the anti-women priests, protestant recognition issues that Bishop Morris unfortunately countenanced; perhaps his brother bishops should have done it at a synod. The Roman investigators just didnt have the decency to do any process properly, contra Canon Law.

So poor 'Orthodox' people like me are left in sympathy with wiggly Bishop Morris, and his half-baked dealings, because no Catholic wants to endorse doing evil (i.e. denial of natural justice, arbitrary governance by 'Magic Curia') so that good may come of it (eg purging liberal, possibly 'hereticaloid' clergy).

The zinger against your anti-lawyerese and various side-issues/squid-ink deflections is two key points of Rev. Waters, worth extracting for people who hate legalese and might not bother reading him based on your dismissal (see below). The two points boil down to:
- Accusations of vague denunciations of woeful leadership, wasted opportunities etc, by anonymous detractors are not the formal charge of heresy or schism that are the relevant causes in canon law for deprivation of office, and a bishop cant be pressured to resign and 'fall on his sword' - this is coercive. Unstated implication - the Pope isnt a CEO running a company for maximal efficiency who can hire and fire, but a primus inter pares, who appoints, and may (and has and does and probably will) appoint mediocre, half-baked, ineffective, wiggly bishops. Being ineffective as such aint grounds for removal. If a bishop is useless but not heretical/schismatic/non-resident etc. we are stuck with it. Suck it up.

Rev. Waters' second point, in summary -

Canon Law explicitly says that where there isnt a process or rules provided for removal, and there arent for removing Bishops, some norms should be thought out on the basis of similiarity to other removal processes for similar cases (e.g. removal of priests). This wasnt seriously done. The bureaucrats played gang up and pressure, and didnt do anything like a decent comparable process.

Interviews with the naughty schoolboy, or the office clerk bullied by the HR department are comparable to the sort of treatment Bishop Morris got.

*The episcopacy as a rank and as a gift of god deserves better*.

(I deeply respect the Bishops and their munus, and am not a law school drone. I resent you conflating my sort of position and law school drones).

Carob_molasses said...

Kate, the relevant tow Rev. Waters extracts -
Point one from Rev. Waters -

"While the unsigned document dated 17 September 2007 [Against Bishop Morris] on letterhead from the Congregation of Bishops (of which Cardinal Re was the Prefect) made serious allegations about Bishop Morris and the Diocese of Toowoomba, such as the Diocese was moving in a different direction to that of the Catholic Church, and that the Bishop had failed to guide the faithful in fidelity to the doctrine and discipline of the Church, it fell short of the specific accusation of heresy or schism. Consequently, it is most unlikely that a penal process would have been able to find the Bishop guilty, and therefore able to deprived of office as a punishment."
________

As for the legal process, the zinger paragraph of Rev. Waters says -

"Although the Holy See identified what it believed to be a canonical reason for removal or deprivation (“leadership of the diocese is seriously defective”), it consistently refused to permit a canonical process for either to commence. Instead, the Pope himself wrote, “Canon law does not make provision for a process regarding bishops whom the Successor of Peter nominates and may remove from office.”
In fact, canon 19 of the current Code of Canon Law states,
"If on a particular matter there is not an express provision of either universal or particular law, nor a custom, then, provided it is not a penal matter, the question is to be decided by taking into account laws enacted in similar matters, the general principles of law observed with canonical equity, the jurisprudence and practice of the Roman Curia, and the common and constant opinion of learned authors"."
----
So sorry Kate, Canon Law *prescribes* legal fairness in similar cases, general principles of law etc. So its into legalese like it or not, if the Romans are going to act like corporate human relations officers instead of Bishop-apostles.

A Canberra Observer said...

Good points Kate.

And my 'sorrow' was not at this case but the general occurence of right decisions, secular or clerical, overturned on process technicalities. Seemingly there is little Bp Morris could hope for.

Kate said...

Actually Carob I don't see these as overwhelmingly convincing paragraphs at all.

The bottom line is there was in fact a process, involving an investigator.

What you are actually arguing is that bishops shouldn't be accountable for their apostolate but should be able to do whatever they like regardless of its relationship to catholicism.

I for one see this as a case of the rights of the laity to the actual faith finally being upheld, whereas you and Mr Waters appear to ascribe to the 'taliban catholic' view of the world.

It is perfectly clear that the bishop knew exactly what the issues were. That they fell technically short of heresy is irrelevant.

The claim that 'anonymous' accusations were the basis for his dismissal and this is all wrong wrong wrong may suit the liberals, but orthodox catholics know better. First, it is clear that these were not anonymous accusations but signed letters sent to the Vatican when they were unable to get any acceptable response locally. That the identity of the complainants was protected is understandable in the circumstances. Secondly,it is a canonical right to so complain, and reflects the very accountability we want to see that it was responded to. Catholics are entitled to catholicism in their churches, not something else!

Thirdly it is clear that Morris was made aware of what the nature of the complaints was (leading to him putting fingers in his ears and singing no no no I will not go to Rome and discuss it).

Finally, in the end, the Pope has full, supreme, immediate power in the church and can always exercize it (CIC 331) - he is not in the end bound by the Code of Canon law legislator. Nor is there any appeal or recourse against a judgment or decree of the Pontiff (CIC 333).

So far as transparency and accountability go, what I would like to see in future cases where bishops mysteriously resign for 'health reasons' or are deposed because they refuse to act as if they were part of the universal church is a clear statement of the reasons why the action is being taken.

But we need more of these kind of decisive actions to clean up the church, and we should be applauding that someone is finally listening to the cries of the disenfranchised laity.

Marcus said...

Kate,

We should also remember that when the Bishops were in Rome they were shown the other side of the story by Cardinals Ouellet and Levada(which Bill Carter wasn't) and they came out and supported the Pope's decision 100%. So we and Bill Carter have not been shown the other side in full, and on this basis, as you've said, we need to defer to the Pope.

Let's be very frank - those who understand and love the Catholic Faith know full well that Morris was not in full communion with the church, and those who wish to be called Catholic but do not believe in the faith in it's entirety, will always side with Morris and against the Pope.

What's that line?: "And the mob will always support Barabbas!"

Carob_molasses said...

Kate, I basically agree with you on anonymity being not to the point.

I didnt say bishops should be able to do whatever they like regardless of its relationship to catholicism - they should be orthodox. Thats clear. I do think that inefficiency and floppiness are not deprivation offences.
You are twisting the Pope's full, supreme immediate power - there are things popes cannot do. The pope is bound by/accords with canon law, and canon law is rightly codifies his full supreme and immediate (=direct/unmediated) power, as you quote.
Some offices in the church have conditions etc. that must be dealt with following canon law rules, even by the pope. He can appoint freely, but he cannot remove someone from an office which is conferred on a person for an indeterminate period of time, except for grave reasons and in accordance with the procedure defined by law. Problem is, there isnt a set procedure for Bishops, and canon law says if there isnt a procedure, do something similar to other comparable cases". But the HR department bullies didnt.

Once again, you
havent got the wider point - the papacy is not a managerial CEO with power to clean up things without according with canon law, which codifies his authority.

Its a shame that the ratbags, protestantisation, and damaging dissent in the church makes people of goodwill like yourself into Fuhrer-pope/super-pope theorists, willing to tolerate stepping outside procedure, so "something can be done".

That might be laity in action, but its also an ecclesiastical version of calling for vigilatism or for the suspension of law as part of a 'round-em up', 'street justice' mentality.

Sad.

Kate said...

Carob - Inefficiency and floppiness?! No that isn't the issue! The problem was failure to teach (and worse) in his Advent Letter and ongoing willful refusal to abide by Church law in respect of General Absolutions (inter alia). Both quite serious offenses.

I agree the Pope is not a super-CEO - but he does have absolute power to govern the Church as the successor of Peter (I suggest you read the Code itself and a good commentary on it. The Pope has universal legislative, executive and judicial power), even if he rarely exercises it.

And his action reflects a long line of precedents going back centuries (reforming Popes at the time of the Reformatin had to similarly act to depose a number of protestant bishops).

A Canberra Observer said...

I think that Carob_milasses point echoes mine - noone here seems to be arguing that the ultimate right thing was for Bp Morris to either conform to the Church he professes to serve or for him to be relieved of his care of souls.

However where, even if only in light of widely accepted notions in society in general, there is a wiff of unfair process then you have problems. It does seem to me that in this saga and others that the Roman officials do not seem to understand, much less take account of, the Australian psyche. Even though Arbp Chaput as visitator was an English speaker, the American psyche is different to ours.

Antonia Romanesca said...

"Trouble is there is a whole cohort of clergy formed in the same 'local church' (aka protestantism) in that diocese [Canberran refers to Toowoomba Qld], so even if there is a 'hero' bishop appointed, he would have a very hard job." +++++++ Very well put, Canberran. This is exactly the feeling so many have about the hapless diocese of Sandhurst, down in Vic. Can it be that the lack of an announcement re a new bishop so far [their bishop died Dec 28, 2010,] is because the Vatican simply does not have the courage to put a new bishop in there, for fear of what is probably going to happen?

Jennifer said...

To Canberra Observer:
Why should Rome have to worry about every person's psyche depending on which country they are from. Facts are facts despite what one's particular psyche is at the time.
And the beauty of arranging for an outsider to critique the diocese is that he can be totally impartial and not be subject to influence by others to produce a positive spin on something and thereby miss the truth - something Bishop Morris is a master at.
I can tell you that having lived in Toowoomba for most of Morris's tenure, this diocese has been and still is, in informal schism and there's no spinning that situation unless of course you are Morris or one of his followers.

A Canberra Observer said...

I defer to your local knowledge Jennifer but I still think it is dumb strategy/tactics to not take account of the situation on the ground, including the general disposition of the 'natives in country'. That knowledge may inform nuances in approach that can forestall future difficulties. And I must stress my comment was in no way meant to demean Arbp Chaput.

Kate said...

Yes but which natives!

It is quite obvious that some wouldn't be satisfied, whatever the process, unless the outcome is different.

I don't think most Australians expect or want a convoluted legalistic process, rather they want action and justice.

Quite the contrary - we get annoyed when sensible outcomes of the justice system are derailed by legal 'creativity' of the Cartesq type.

No one has demonstrated that there was any unfairness at all about this one in my view.

Carob_molasses said...

"I don't think most Australians expect or want a convoluted legalistic process, rather they want action and justice".

Well, until they think about it, and realise that sort of opposition is a manifesto for lawlessness or clericotyranny. Look at the word 'action' in that sentence - classic desperation, the reflex that urges the overthrow of the 'rule of law' in impatience.

Kate, you can easily recognise the horrible bits of the australia psyche on things like 'stop the boats' - why cant you see a version of it here?

Why wouldnt we expect a process as *rare* as the deposition/removal of a bishop not be a convoluted process? Seriously, if this is meant to be a simple matter of exercising arbitrary papal power, assisted by always-accurate and diligent and disinterested bureaucrats, what is a complex process that canon law is useful for covering?

Kate said...

It is all about balance Carob - this was not in fact a short process but one that stretched over far too many years due to Rome's reluctance to act notwithstanding the ongoing issues in the diocese!

And refugees are a case in point. On the one hand, attempts to deny refugees any legal appeal whatsoever, tow back boats etc are outrageous. On the other hand the lawyered up refugee industry gives itself a bad name at time with its ridiculous excesses.

Consider for example the case of the Pakistani who after trying and failing on several diffent claims for refugee status won his case because the decision maker had failed to take seriously his claim that 'English teachers' constitute a persecuted group in Pakistan!

Antonia Romanesca said...

Kate: “It is quite obvious that some wouldn't be satisfied, whatever the process, unless the outcome is different”.
Yes, that absolutely has to be true, in regard to Australian Original Catholic Dissent – one just has to view the landscape they have created, since the regrettable dissolution of the full bishopric of Emeritus + Morris. There has been an awful lot of spitting plus gnashing and grinding of teeth, at the ‘shocking audacity of the Papacy’. Is it only the unkind, who are starting to conclude that the Australian Jesuits have drifted rather a long way from their French origins? [A whole lot of material must have been somehow lost, in translation into Aussie-English, perhaps because of the distance between here and Paris!].

If a mini Australian papacy can be created, on the shores of Lake Burley Griffin [it would need to be a similar size to the High Court of Australia building, ie. seriously huge] then the noble, edgy and directional leaders of Australian Dissent might calm down - but then again, they might not! It would have no connection with the fair dinkum Papacy in Rome of course, on account of ‘unique, individual Aussie needs with a larrikin backdrop’ and be run exclusively by the outfit which knows far, far better than the Pope: Australian Original Catholic Dissent.
Deo Gratias, for the central authority of the Papacy. Let’s have a wee think for a moment, of what things would be like in this vale of tears, without it. [apply a herbal tranquilliser first!]

DB said...

Kate, you have clearly misunderstood Mr Carter's advice. I suggest you read it again. As Mr Carter's advice alludes, concepts of law and morality often collide. It is morally offensive and contrary to basic religious values that the Church should make decisions which negatively impact others based on allegations made by an unidentifed person without evidence or particularity. This is even more so where the person isn't afforded an adequate opportunity to respond. Also, your suggestion that the Bishop "rejected" an audience with the Vatican, on 6 weeks notice, is patently false.

In any event, you appear to have used this religious forum to launch your own personal attack on the legal profession. Similar to the approach adopted by the Vatican in the Morris case, your attack proceeds without a sceric of objective fact or reason.

In my view, we should not blindly follow decisions made by the Church in circumstances where where it chooses to shun principles of human decency.

Kate said...

DB - 'used this forum to launch my own personal attack on'!

Last time I looked this was my blog! It sets out my opinions. And I launch attacks on all kinds of things that I think harm the common good of our society. And on the legal front, Australia has been infected by the American disease in my view.

So get a grip and either say something new, or go back to the appropriate 'forum' for the endless reiteration of the smae old tired views over with your friends at Eureka Street or acatholica.

In terms of general principles though there is a big difference between how one should handle complaints about private behaviour, such as complaints of sexual or other types of abuse that may or may not have had witnesses, and the type of thing involved in the Morris case.

The issues at stake in the Morris case are actions all in the public domain - a pastoral letter that failed to teach and actively misleads on what the faith says; and liturgical practices at odds with Church law.

And the bishop's rejection of the invitation (whatever the excuses proferred) to go to Rome is a matter of public record.

Antonia Romanesca said...

DB'S: ~~~~~"Also, your suggestion that the Bishop "rejected" an audience with the Vatican, on 6 weeks notice, is patently false."

If it is in fact untrue that the now +Emeritus Morris. [formerly of Toowoomba],refused to go to Rome when summoned, then that is alarming. I distinctly recalling reading that he refused, in a number of sources, one of which was the Catholic News Service, Rome. His refusal was I understood, a distinct factor leading to the international ignominy which the poor fellow now enjoys. Didn't it truly have a 'wow factor'? It is still alleged afterall, that he had been wrangling with the Vatican for the Age of a Racoon - wasn't it something like 13 years? I believe that only the truly valiant would give the finger to Cardinal Arinze, a cardinal known for his fairness and his quite profound intellect - but maybe I'm just a cowardy custard. I do hope you are not telling a naughty lie, DB and attempting to propel us innocents into the Land of Muddle. That would be unseemly, tho I guess not legalistic!