Rorate Caeli

Blueprint for recourse to the PCED under Universae Ecclesiae

A wonderful tool provided by Saint Louis Catholic. We encourage our readers in non-English speaking nations to provide us with translations (they may also send them to us so that we may make them all available at one place).
BLUEPRINT
FOR HAVING RECOURSE TO THE PONTIFICAL COMMISSION ECCLESIA DEI
(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 ashierarchical 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”.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 adecree (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 deadlinedescribed 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 asyngrapha 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 UEpresents 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, thenhierarchical 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.


13 comments:

Anonymous said...

Dear R-C:

Thank you for the great effort in breaking down the complexities of the Recourse. Very interesting but also very pausing.

From the looks of it, it seems quite a lot of jumping through hoops for the Faithful. If I read correctly, this bit of fifteen days for this and ten days for that is very off-putting as it provides such a narrow window for appeal. Suppose the refuser waits until the last minute to say no, does the respondent then lose out on the ability to appeal? The window has already closed since the responder has waited until the last minute from reception of formal request to issue a reply.

Please correct me if I'm wrong but UE really seem like something of substance? There is nothing in the document which compels any form of compliance. It's the Faithful who has to do all the work and spend a thousand dollars to set up an appeal and mail it off to Rome. Despite the flowery language the mechanism is already not on the side of the Requester.

I suppose once again we have here another Church science project: "After mixing contents, let it set for a decade to harden before use."

Relentlessly praying,

Matt

Anonymous said...

I was discouraged the first time I read it, too, but upon re-reading it this morning, the recommended steps for the stable group don't seem that complicated.

This is really very useful, and if our coetus fidelium doesn't receive a favorable response to our request (sent today) to our pastor to give us a weekly Latin Mass, our group is going to follow these recommendations exactly since there's no way in the world we can afford a canonist to do it for us.

Anonymous said...

One question about this process:

How long must a coetus fidelium wait after sending their initial request to a pastor asking for a Latin Mass in their parish before approaching the local ordinary?

Our pastor has a dismal history of not responding to our (polite and respectfu) letters and phone messages. Is there an official length of time required to wait for his response before we go ahead and file a remonstratio with the local ordinary?

Anonymous said...

If a request is filed before a Pastor, some key things to keep in mind:

1) Mail the request "Certified Mail with Return Receipt", so that way, when the Pastor is presented the letter, you have a return receipt. Also keep track of the USPS bar code, so that you can track live on the web the status of delivery, and print out even the update which will indicate notification to the Pastor when he gets the letter. So a return receipt, whether signed or unsigned, is critical.

2) The Pastor will have 90 days to respond according to can. 57 of the Code. If on the 91st he still has not responded, you then have 30 days to file hierarchical recourse directly to the Diocesan Bishop, since can. 1734, par. 1 says that filing a remonstratio is not required when one is recurring to the superior of he who has not responded to the initial request.

3) Make sure you include proof of qualification of the priest you present, if you do so, along with the request.

Good luck!

thetimman said...

In transferring the document from pc to mac based platform, I made a small but critical gap in one paragraph. The first two sentences of the paragraph that begins "The first set of key terms..." should read as follows:

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.

Mea culpa!

Anonymous said...

Many thanks to the gracious and knowledgeable commenter at 15:35.

Your instructions are extremely helpful, but 90 days seems like such a long time.

Anonymous said...

CORRECTION: if a request is filed before a Pastor under SP who is subordinate to the local Bishop, and 90 days pass in silence without a reply from the Pastor, then at the latest within 15 DAYS from the 90th day, that is, by day 105 (not including the day of notification being made to the Pastor of the filing), one must file hierarchical recourse to the hierarchical Superior of the Pastor, who is normally the local Bishop (cf. cann. 1747, par. 3, n. 3; 1735; and 1737).
These deadlines are "peremptory", which means that one is obliged under penalty of forfeiting one's rights to file recourse within the deadlines set forth in cann. 1734-1737.

DM Reed said...

How hard would it be for them to hire a webmaster to establish a site for automated recourse to the PCED? Don't they have an app for that?

Marta said...

You've been so helpful, I hope you don't mind another question regarding a different situation.

If there was a long-established Latin Mass at a parish---a Mass which was correctly instituted according to S.P. in 2007---and that Mass was cancelled at the arbitrary whim of the pastor, must the faithful go through the same process of remonstratio and
hierarchical recourse to ask that it be restored?

Anonymous said...

Marta,

It would be better for you to file a new request with the Pastor, because a new Instruction has now come into effect, Universae Ecclesiae, which bolsters your rights, and changes the juridical dynamic of the circumstances.

You also need proof of a request having been made in writing by your coetus fidelium, with proof of notification of your request to the Pastor having been made by the Postal Services ("registered" or "certified mail with return receipt", for example); and you need to be able to prove that the Pastor and/or his Superiors has refused your request in writing, or has remained silent to your request having been presented to him in writing.

Without that proof, you cannot demonstrate your respecting of the deadlines imposed by Universal Law.

Moreover, there is a need to verify the Pastor's "arbitrary" refusal on a date after the issuance of the Instruction, and this according to the norms of can. 1509 CIC.

All of this sounds a bit confusing, when in reality it's more about commons sense: how else is the Church, acting as a fair Judge, able to decide the matter fairly if one does not present tangible proof of communication of essential documents (i.e. requests, silence, refusal, etc.)?

When presenting your request to the Pastor, the process is the following: he has an obligation to respond in writing to a written request which has been mailed to him within 90 days (cf. can. 57). If he remains silent, then on day 91 you file hierarchical recourse to his superior, the Bishop, by day 105 or your initial request to the Pastor having been made. If the Pastor, on the other hand, has replied to your request saying no, or providing a different response then what you are seeking, and you are still not happy, then you have the same deadline - 15 days according to can. 1737, par. 2, in order to file hierarchical recourse to the Pastor's superior, the Bishop. A remonstratio is needed as a preliminary step only if the initial request was presented before, for example, the Vicar General, or the Bishop himself, who are not subordinates to an Ordinary of the Diocese (cf. can. 1734, par. 3), prior to one having recourse to the Bishop's superior, PCED, if Bishop fails to respect your rights under SP and UE.

Anonymous said...

Pax Christi,
Many thanks for this great help. I hope we do not take too much of your time with our questions, but you have been so helpful. Here in Africa we have even greater obstacles. The post is not able to be relied upon at all (thus we will have to use the foreign courier companies - at an incredible cost - to us anyway). When wanting to meet with priests or Bishops one has to get past the watchdogs who will refuse permission if you cannot satisfy their personal whims or if the cleric has told them to refuse you entry. When you present a formal written letter, they will not sign, to say they have received it. When you actually do meet with priests or Bishops, they will ensure NOTHING is put in writing. When we approached Canon lawyers, they looked at some of the paperwork which had gone either way (such as sanctions against juridical persons for supporting the TLM) and openly admitted the actions were uncanonical, but refused to touch them whatsoever, since they knew such an action would end their clerical aspirations.
Thus, we are left to walk through the legal minefield without ANY legal help.
One question I have pertains to your letter. You said that if groups have applied directly to the Diocesan Bishop and he has refused in writing... How long does one have if he does NOT reply at all. Obviously this is 30 + 15 for a Pastor, but what about for the Diocesan Bishop?
Any chance of a group of qualified persons who could help us in Africa via the internet?

St Augustine & the African Martyrs,
Pray for us.

Marta said...

Many, many thanks for taking the time to answer my questions. We will proceed accordingly in good faith and good will.

Dan said...

How hard of a heart would one in Rome have to have to not feel shame and sorrow about the situation in Africa that Anon @ 10:44 describes? Do they even begin to realize the damage to souls they are doing by letting a situation like that fester?

I'm sorry, but when I read things like that my feelings of disgust well up to overflowing. Pray for those poor people.