Friday, 10 February 2012

Fr Waters, Ed Peters and the canon lawyers club on Toowoomba

A reader has drawn my attention to canonist Dr Edward Peters' couple of posts on the latest round of the Toowoomba imbroglio, and so, since Dr Peters doesn't allow comments on his blog, after some reflection I thought I'd make a few comments here on his posts.

There are basically three issues being debated now in relation to Fr Waters' opinion on the Morris Case, which I want to look at one by one:
  • should Fr Waters have spoken up publicly at all on this matter given that doing so has helped stir the pot further on an issue our bishops have asked for healing on?;
  • was Fr Waters misrepresented by the Age in what he said?; and
  • the substance of the claim that Bishop Morris was denied natural justice, on which Dr Peters has made some interesting points worth drawing out. 
A disclaimer

First let me say I'm not a canon lawyer or claiming any particular expertise in this field, so read my comments in that light.  I've done a masters level introductory course on canon law meant to teach the principles of how canon law works and provide an overview of the current Code, and read a bit, but that's it.

Nonetheless, I do think what the experts like Fr Waters have to say can be subjected to what I like to call the 'plausibility test'.  Every field has its own jargon and understood modes of operating.  All the same, if you venture into the area of public debate drawing on your expertise, it has to be assumed you are writing in ways that will be understood by your intended audience, be that a particular client or more broadly.

Should Fr Waters' have spoken out?

I've previously suggested that Fr Waters' shouldn't have spoken out on this matter, given that in doing so he was fueling the fire of mass disobedience and dissent in Toowoomba in particular, and Australia more generally. 

The Australian Bishops, for example, following the ad limina visit late last year to Rome stated that:

"We express our acceptance of the Holy Father’s exercise of his Petrine ministry, and we reaffirm our communion with and under Peter. We return to Australia determined to do whatever we can to heal any wounds of division, to extend our fraternal care to Bishop Morris, and to strengthen the bonds of charity in the Church in Australia."

Are Fr Waters' (and Eureka Street et al) efforts in this area consistent with that aim?   I can't see how myself.

Dr Peters does confirm a key point that I made in response to a commenter on this blog, to the effect that Judge Carter's opinion, being that of a non-canonist, is totally irrelevant from a canonical point of view. 
Which raises the question of just why Fr Waters would lend it credibility by adding his own views to it and endorsing some of its conclusions!

Nonetheless, Dr Peters defends Fr Waters's write to speak out, however, as consistent with Canon 212 §3, viz:

"According to the knowledge, competence, and prestige which they possess, they have the right and even at times the duty to manifest to the sacred pastors their opinion on matters which pertain to the good of the Church and to make their opinion known to the rest of the Christian faithful, without prejudice to the integrity of faith and morals, with reverence toward their pastors, and attentive to common advantage and the dignity of persons."

That's the provision of the Code that bloggers rely on, so I'm certainly in favour of a broad reading of it! 
 
All the same, one of the points that was stressed in my introductory course on canon law was that this right to speak up is not unrestricted.  The second half of the provision certainly suggests that, but the other key provision is  Can. 223 §1, viz:
 
"In exercising their rights, the Christian faithful, both as individuals and gathered together in associations, must take into account the common good of the Church, the rights of others, and their own duties toward others."

And a higher standard of that test applies, I think, to the writings of someone holding senior offices in the Church, than to common bloggers whose opinions are all too easy to dismiss!

Fr Waters is, one assumes, well aware that there is no possibility that the Pope will suddenly decide to reinstate Bishop Morris. 

But unfortunately by giving an opinion on this subject publicly he has encouraged those who have no such understanding, as the communications of the 'Toowoomba Leadership Group' I've spoken about previously continue to make clear.

If Fr Waters thinks there is a genuine issue of natural justice or other process that needs to be remedied, it seems to me that he has other, far more appropriate venues open to him, such as canon law journals and conferences where the matter can be debated by the experts and any suggested changes to procedures be suggested to the Vatican for consideration.

Was Fr Waters misrepresented?

Dr Peters goes through a number of points on which he thinks Fr Waters has been misrepresented by bloggers such as Holy Irritant, thus justifying Archbishop Hart's statement.  He is certainly right in suggesting that the pro-Morris crowd have read up the opinion for all it is worth and a lot more! 

He noticeably doesn't, however, refer to the article that Archbishop Hart was actually responding to.

Here is what Barney Zwartz of the Age said:

"...Father Waters found that the Pope had breached canon law and exceeded his authority in removing Morris without finding him guilty of apostasy, heresy or schism (which alone justify such action) and without following the judicial procedures canon law requires."

Here is what the journalist based that sentence on.  Fr Waters says:

"The final possibility was deprivation of office, which is being deprived of office as a punishment for an offence.  Deprivation may be effected only in accordance with the provisions of the canons concerning penal law.  The penal process may be either judicial (a hearing by a Church tribunal) or extra-judicial (an administrative process).  However, both the judicial and extra-judicial processes require that the accused be assisted by an advocate; that his good name not be called into question; and that procedural fairness and the right of defence be respected.  Moreover, a perpetual penalty may be imposed only after a judicial process, not after an extra-judicial process....

While the unsigned document dated 17 September 2007 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.

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."

Was the journalist really misreading Fr Waters?  Because that sounds awfully like a claim that the Pope was in breach of canon law to me!

Now we have to presume that Fr Waters knows and accepts that the Pope is not bound by the Code - but why didn't he actually say this?  Why did he not correct the statements in Justice Carter's opinion  on this point? Similarly, Fr Waters would be aware of cases, including some very recent ones, where bishops and priests have been removed for causes other than apostasy, heresy or schism.  Yes Fr Waters is careful in his wording.  But the inference Mr Zwartz drew seems to me to be one open to any reasonable person reading an opinion directed at non-canon lawyers.

Some seem to agree with me on this, a former student of Fr Waters' doesn't.  Frankly, in my view, if Fr Waters is being misrepresented by the blogs and Toowoomba crowd, he should have spoken up himself earlier and said so. 

The substance of Fr Waters opinion

The really interesting sections of Dr Peters posts, though, are actually taking issue with Fr Waters opinion, so let me draw your attention to a few key points.

On the claim that Canon 19 requires a judicial process, and that the one used for parish priests would have been the appropriate model, Dr Peters disagrees:

"But of course, the dynamic between bishops and pope is, from a half dozen points of view, not comparable to the dynamic between pastors and bishop, and papal-episcopal relations are not susceptible to being neatly circumscribed by a check-list of sequential steps. Similarly, I think Waters’ suggested appeal to Canon 19 is reasonable, even if it eventually proves bootless, as I think it would, because the very rarity of papal interventions in cases like this one leaves the Roman Curia without a substantial praxis to draw upon for guidance."

He also disagrees with the claims that canon law required that Bishop Morris' good name be protected:

"...nothing in the public record of this case suggests that it was a penal deprivation matter (cc. 196, 419), but, if this had been a penal case, that would not have implied, pace Waters, that Morris’ “good name [could] not be called into question”. One has the right not have one’s good name not called into question only during the preliminary penal investigation (c. 1717 § 2) and more generally, to be free only of illegitimate harm to one’s reputation (c. 220). If one’s name suffers legitimately during a case, so be it."

Did he jump or was he pushed?

Perhaps the most interesting point raised by Dr Peters is the question of whether or not Bishop Morris was technically dismissed, or whether his resignation (albeit under pressure) was accepted. 

Dr Peters comments:

"Yes, the departure of Morris from office is widely described in the press as a “removal” and yes, the Vatican Information Service apparently used that word at the time, and yes, there have arguably been a “removal” or two of bishops from office under Benedict XVI (indeed, even one under John Paul II). But Morris himself describes his departure as being one of “early retirement” and the Apostolic Nuncio to Australia said the pope had “accepted the retirement” of Morris. So exactly what happened in this case is not clear from the sources available to me.

Now, maybe, “early retirement” is a new canonical institute that none of us extra Urbem has ever heard of, but I doubt it. My guess is that “early retirement” is some kind of ‘avoidance-talk’ from an office-holder who winces at the word “resignation”—even though resignation is exactly what this seems to be—and Rome, prudently or otherwise, let him have his way...."

It makes a big difference, Dr Peters points out. 

If the bishop resigned, it was his decision, not the pope's and all this talk of lack of process or breach of natural justice is irrelevant to the case.

Fr Waters' opinion questions, if this were the situation, whether "a bishop in such a situation [as Morris] would be capable of the personal freedom necessary to make an informed decision.” Dr Peters comments:

"That phrasing might comfort Morris’ supporters, but they should know (and I suspect that Waters would agree) that many canonists would reply that other men making important life decisions under circumstances similar to those faced by Bp. Morris are certainly canonically and naturally sufficiently free to make those decisions."

All that said, I'm not sure Dr Peters is right on this point.  Certainly the statement of the Australian bishops following the ad limina visit talks about Bishop Morris 'finding himself unable to resign' and talks about "the exercize of the petrine authority" in this area.

The real learning from this case...

Dr Peters concludes:

"Might one suggest that the greatest injustice done to Morris was treating him with such excessive, and perhaps misleading, deference for ten-plus years when what all sides really deserved was a direct confrontation on the facts and a prompt resolution of this neuralgic case?"

Hear, hear.

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