15 May 2011

Blueprint for Having Recourse to the Pontifical Commission Ecclesia Dei under Universae Ecclesiae

Universae Ecclesiae (UE) has been welcomed and much discussed on Catholic blogs since its publication on May 13.  Among the many positives it contains is the announcement of a means of recourse to the Pontifical Commission Ecclesia Dei (PCED) for those priests and faithful who are denied their right to the Extraordinary Form under Summorum Pontificum and the instruction itself.

What no one has yet covered, however, may be the key to the successful implementation of UE and also the most important practical question:  How does one effectively gain recourse to the PCED?  

Fortunately, the excellent though anonymous Canon lawyer whose work occasionally appears in this space has researched this issue in light of UE and relevant Canon law, and has written the article below for the benefit of priests and faithful who seek access to the Extraordinary Form.  If it appears a little complex, know that it is a distillation of a very complex subject.  Of course, the best way to advance the cause of sound liturgy is to work out difficult situations in charity, and with respect to lawful superiors.  But when that fails, it is one thing for the faithful to write letters and wait in vain for redress, but quite another to make use of the Church's legal procedure and have a real chance to succeed:


(Art. 10, §§ 1-2 Instr. Universae Ecclesiae)

The long-awaited instruction Universae Ecclesiae of the Pontifical Commission Ecclesia Dei, approved by the Holy Father in forma communis on April 8, 2011, issued on April 30, 2011 by authority of the Commission’s President, William Cardinal Levada, and released by the Vatican this May 13, 2011, may be said, without shadow of a doubt, to be an incremental improvement in the Church’s discipline safeguarding the celebration of the Extraordinary Form of the Roman Rite.  Cf. Pontificia Commissio Ecclesia Dei, Instr. Universae Ecclesiae (30 Aprilis 2011): diurnarium «L’Osservatore Romano», 14 Maii 2011, pp. 4-5.

Despite its many imperfections, the officials of the Pontifical Commission deserve great credit for their securing of the final text against powerful enemies of Tradition continuing to work against the Roman Pontiff in his efforts to protect that “precious treasure to be preserved” which is the Usus Antiquior of the Roman Rite (cf. Universae Ecclesiae, 8[a]).

Virtually untreated by all commenting on the new Instruction is the most important feature of the text, the juridical mechanism by which Catholics encountering stiff resistance to the application of Summorum Pontificum can receive help from the Holy See in overturning adverse decisions of an Ordinary forbidding celebration of the Extraordinary Form: the procedure known as hierarchical recourse (cf. cann. 1732-1739 of the Code of Canon Law).

The following “blueprint” attempts to fill in this lacuna, and present in layman’s terms essential elements of the canonical procedure enshrined in Art. 10, §§ 1-2 of the Instruction Universae Ecclesiae, in his attempt to compel an Ordinary to open the gates of the Sanctuary to the celebration of the Extraordinary Form.

For those who first opined otherwise, the instruction Universae Ecclesiae does not require promulgation in the Acta Apostolicae Sedis in order for it to enter into legal effect, because the text is already in effect: it does not constitute new legislation, as it is an instruction (cf. can. 34 CIC 1983), the  purpose of which is to declare the governing principles and norms of execution by which, in this case, the Motu Proprio Summorum Pontificum is to be applied in a uniform manner throughout the entire Church (cf. J.BEAL, J.CORIDEN, and T. GREEN, New Commentary on the Code of Canon Law (Paulist Press: Mahwah, New Jersey, 2002) p. 61).  As such, Priests and laity may already initiate their canonical efforts to do battle, if all else fails (cf. cann. 1733) in the Church’s courts as necessary in order to see their rights and persons respected according to Papal Law.

While most Catholics have heard of “Church courts” regarding “annulments” or declarations of nullity of marriage, only a very small percentage are familiar with the practical requirements inherent in successfully challenging an ecclesiastical superior’s administrative written decision, or “decree”, prohibiting the offering of Mass or the Sacraments in the Extraordinary Form.

Art. 10, § 1 of the Instruction – encapsulating, practically speaking, the most important section of the Instruction – treats of this new “power to decide upon recourses legitimately sent to it, as hierarchical Superior, against any possible singular administrative provision of an Ordinary which appears to be contrary to the Motu Proprio.” For all practical purposes, the Pope may be said to have created a new tribunal within the Catholic Church – without technically doing so – inasmuch as he has empowered the Pontifical Commission Ecclesia Dei to exercise an administrative tribunal’s role and decide administrative canonical lawsuits filed before it.  No one has really written of this novelty latent within the Instruction Universae Ecclesiae.  This development is a true milestone for Catholics aiming to celebrate or assist in the “Old Rite” who for far too long have had to endure grave hardship in the plight to have their rights respected.

The first set of key terms to note in this paragraph is “recourses legitimately sent to it”. This alerts the reader to the fact that one must take heed to observe all preliminary steps required before one burdens the Church’s already overburdened justice system with unnecessary canonical lawsuits, namely by the filing of the Remonstratio when required according to the terms of can. 1734.  “Hierarchical Superior” indicates that instead of one having recourse to a Dicastery of the Holy See normally competent to adjudicate matters pertaining to the celebration of the Sacraments, or the rights of the laity, the Pope has decided to empower the Pontifical Commission to decide whether or not to uphold or overturn an Ordinary’s decision barring celebration of the Extraordinary Form.  “Any possible singular administrative provision” is actually an incomplete translation when compared to the original Latin: “actum administrativum singularem a quolibet Ordinario emissum”, that is “singular administrative act issued by any Ordinary [..]”. 

Two scholia at this juncture.  The first is “singular administrative act” as defined in can. 35, which, for matters concerning celebration in the Extraordinary Form, will ordinarily mean a decree (cf. 48ss.) issued by an ecclesiastical Superior against a request for celebration of the Extraordinary Form. 

The second is the concept of “any Ordinary”.  Although lost in translation of the official Latin into any vernacular translation posted to date on the Holy See’s website, “quolibet” means “any”, which qualifier is critical to the recurrent comprehending that if a Vicar General qua Ordinary refuses an Art. 10 request for an EF celebration, the most safe action for the recurrent to take is first to file a remonstratio before him, the author of the initial decree, according to the norm of can. 1734, § 1, as opposed to can. 1734, § 3, 1°, which would have provided that one instead have hierarchical recourse directly to the Pontifical Commission Ecclesia Dei within 15 days of the deadline described under can. 1735.As a result, it appears that “German School”of jurisprudence of the Roman Curia, led by Lüdicke, Aymans-Mörsdorf, etc. has indeed influenced the trajectory of the Instruction’s drafting.In final analysis of the Instruction’s terms, such as the qualifier “any” in Art. 10, § 1 referenced above, the praxis or jurisprudence of the Pontifical Commission and the Supreme Tribunal of the Apostolic Signatura will be decisive in elucidating for the faithful which norms are strictly to be followed to the letter.

To facilitate the reading of this blueprint, those case examples most likely to occur are treated below for the purposes of having recourse before the Pontifical Commission.

Ø  If a Priest requests in writing that the Pastor of a diocesan parish allow him, according to the norm of Art. 16 of UE, to celebrate Mass in the Extraordinary Form of the Roman Rite, and in doing so presents a certificate or other verifiable proof demonstrating that he has already celebrated said Form in the past, then, according to Art. 20 of UE, he is canonically presumed to be “qualified” (cf. can. 1585 CIC 1983).  Upon such request being made before the Pastor, the burden of proof shifts according to the norm of can. 1526, § 1, to the adversarial ecclesiastical superior to overthrow the presumption of Art. 20, and this to the degree of moral certitude, which standard of proof is more or less analogous to “beyond a reasonable doubt” (cf. can. 1608, § 1).  For reasons which are self-evident, it is important to ensure that a written reply has been given to the person making the request, which indeed is a requirement according to cann. 37 and 57 of the Code.

Ø  If the Pastor replies “no” before the passage of 30 days from the date of the request being made, despite presentation of such proof, and the exhortation of the norm of Art. 17, § 1 of UE, the Priest, within 15 useful days (cf. can. 1737, § 2) must have hierarchical recourse against that decision to an Ordinary of the Diocese (cf. cann. 1734, § 3; 1735; and 1737).  “Useful” with respect to the Roman Curia’s deadlines for filings ordinarily only means that if the last day of the uninterrupted stretch (including weekend days) of 15 days (the day upon which notification of the initial rejection of the request is not counted) happens to fall upon a Sunday, or day on which the Postal Services are closed for business, thereby creating physical impossibility for one to have recourse by mail on the last day of the deadline in observance of the norms of can. 1509, §§ 1-2, the last useful day is pushed back to the next business day upon which the Postal Services are open for public business.

Ø  “Legitimate notification” in Canon Law usually means delivery by mail with a syngrapha receptionis or “returned and signed receipt” of delivery by the Postal Services, according to the above indicated norm of can. 1509, § 1-2.  For reasons which one may easily surmise, it is in the interest of all parties for decisions and requests to be made in writing, and for proof of notification according to can. 1509 to be obtained for probatory purposes in the Church’s canonical proceedings.

Ø  If, on the contrary, the Pastor in the above scenario remains silent, hierarchical recourse must be had within 15 days from the passage of 30 days of silence from the filing of the remonstratio, according to the norm of can. 1735.  Therefore recourse must be had at the latest on the 45th day from the date of the initial unanswered request being made for celebration of the Extraordinary Form to be allowed.

Ø  Upon filing a canonical instantia of hierarchical recourse before an Ordinary – which latter person, as explained above, appears to include the Vicar General, and not just the Diocesan Bishop – the recurrent must specify in his motion of hierarchical recourse that one has suffered directly, actually, and personally a gravamen or harm deriving from the violation of at least a subjective right which is at least indirectly protected by the law of the Catholic Church, in this case, with the relevant passages of the Special Law of SP and UE being referenced in support of one’s hierarchical recourse.  Cf. Una coram Castillo Lara, SSAT, Definitive Decree, (Prot. N. 17447/85 CA), in Communicationes 20 [1988] 91, 4; see also una coram Echeverría, SSAT, Definitive Decree, (Prot. N. 30447/99 CA).

Ø  According to the norm of can. 57, the one deciding hierarchical recourse has 90 days to issue his decision: a response is required according to Canon Law.  Cf. Una coram Castillo Lara, SSAT, Definitive Decree, (Prot. N. 17447/85 CA).  If no response is received within 90 days, secondary hierarchical recourse may then be had to the Pontifical Commission Ecclesia Dei, which instantia or filing of recourse must be made with the Commission within 15 days to be counted from the silent 90th day (cf. cann. 57; 1734, § 3, 3°; 1737, § 2).  “Filed” again means at least postmarked on the last day of the useful time period allowed under Canon Law.  Cf. Pontifical Council for the Laity, SSAT, Decree, December 6, 2002 (Prot. N. 32823/01 CA).

Ø  If a coetus fidelium or stable group of faithful formed according to Art. 15 of UE presents a written request instead of the Priest described in the first bullet point above, then the group, for maximum safety, must ensure that all members of that group have appointed as their canonical procurator one of their own.  Cf. cann. 1481-1490; SSAT, Decree of the Congresso, June 24, 1996, 2 (Prot. N. 26001/95 CA).

Ø  In eventually filing any remonstrations (cf. can. 1734) or hierarchical recourses (cf. can. 1737) as described above, the stable group should, again, for maximum juridical safety, and according to the jurisprudence of the Supreme Tribunal of the Apostolic Signatura, ensure that its canonical procurator filing the remonstratio or having hierarchical recourse sign the canonical brief “personally and on behalf of those faithful who have executed mandates appointing me as their lawful procurator”.

Ø  If it is the Diocesan Bishop himself who has initially refused in writing the request made by the cleric or faithful, the next step would be to file the remonstratio, the preliminary request for revocation or reconsideration (cf. can. 1734), before that same diocesan Bishop, and this within 10 days of lawful notification of the Bishop’s initial decision to the interested party. 

Ø  If, on the other hand, it is the case of an ecclesiastical authority who is subordinate (cf. can. 1734, § 3, 1°) to the Bishop – a subordinate who is not an Ordinary of the Diocese in question – who has refused to provide permission, then hierarchical recourse (cf. cann. 1735-1737) must be had to the Bishop himself within 15 useful days (cf. can. 1735) of the issuance of the subordinate’s decision and lawful notification of the same against celebration of the Extraordinary Form.  If that same Bishop then issues a decision in response to that first hierarchical recourse, which the recurrent decides to contest before the Holy See, a new remonstration (cf. can. 1734) must be filed with that same Bishop before having secondary hierarchical recourse to the Pontifical Commission Ecclesia Dei (cf. can. 1737), in full respect of the same deadlines specified in cann. 1734-1737 and can. 57.

Ø  Clerics and laity seeking to invoke Universae Ecclesiae effectively need to remember that they should reference and argue only upon the basis of the Latin original text of the Motu Proprio and Instruction.  

Ø  Before a faithful decides to have additional recourse to the Supreme Tribunal of the Apostolic Signatura against an eventual decision issued by the Pontifical Commission Ecclesia Dei, which is now permitted according to the norm of Art. 10, §2 of UE, one really should consult an experienced canon lawyer (with no track record of suspension) accredited by the Holy See to represent clients before its Dicasteries and Supreme Tribunal. 

Ø  The address to be used for mailing hierarchical recourses to the Pontifical Commission Ecclesia Dei is the following:

Pontificia Commissio Ecclesia Dei
Piazza del Sant’Uffizio, 11
00120 Vatican City State

            As one can readily see from the above, there is a certain degree of complexity regarding having hierarchical recourse to the Holy See.  Before all else, faithful must strive to find harmonious modes of arrangement with their ecclesiastical superiors as much as possible in their efforts to have their rights respected, without resorting to the ultimate solution under Canon Law if not necessary.  However, if Pope Benedict XVI waited almost four years before ordering the issuance of Universae Ecclesiae, it was assuredly in due diligence to see whether it would indeed be necessary to grant this new, most important power to the Pontifical Commission Ecclesia Dei.  The Sovereign Pontiff has decided that indeed it was.
I want to thank this Canon law expert for writing this helpful, and I think vitally important, blueprint for those persons seeking redress of unjust decisions contrary to UE who would not have known where to begin to take the matter to the proper hierarchical authority.