Rorate Caeli

De Mattei: Is the principle of legality being extinguished in the Church?

Roberto de Mattei
Corrispondenza Romana
July 10, 201


If Pope Francis should be accused of a crime by any judge, in any part of the world, he should divest himself of his office as Supreme Pontiff of the Catholic Church and submit himself to the judgment of a court. This is the logical and necessary conclusion to the stunning decision by which the Holy See denied diplomatic immunity to the French Apostolic Nuncio, Monsignor Luigi Ventura, accused of sexual molestations.

The Holy See could have discharged the Nuncio from his office, and, pending the outcome of the French justice system, initiate a canonical investigation on him, also for his own guaranty. The decision to dispatch the papal representative into the hands of a secular court, violates the institution of diplomatic immunity, the expression par excellence of the sovereignty, freedom and independence of the Church. That same diplomatic immunity, by the way, was invoked to protect the crimes committed in Italy by Pope Francis’s Almoner, Cardinal Konrad Krajewski.

What is taking place is part of a disturbing extinction of every principle of legality inside the Church. The law is coessential to the Church, which has a charismatic dimension as well as a juridical dimension, inextricably linked to each other, like the soul and body. The juridical dimension of the Church is, however, ordered to its supernatural ends and is at the service of the Truth. If the Church loses sight of its supernatural ends, it becomes a power-structure and the authority of its ecclesiastical function prevails over what is true and just. This “functionalist” conception of the Church was denounced by Cardinal Gerhard Ludwig Müller, in a recent interview given to Edward Pentin in the National Catholic Register. Cardinal Müller stated that the so-called reform of the Curia which has been under discussion over the last few months, risks transforming the Curia into an institution wherein all the power is concentrated in the Secretariat of State, bypassing the College of Cardinals and the competent congregations: “They are converting the institution of the Curia into a simple bureaucracy, in mere functionalism and not in an ecclesiastic institution”.  

An expression of this functionalism is the exploitative use of Canon Law, in sanctioning religious institutes and individual priests who are not disposed to alignment with Pope Francis’s new paradigm. In the case of religious communities the repressive intervention, in general, occurs through external administration, then a decree of suppression follows or a complete reform of the institute, without giving adequate reason and often expressed in the so-called “ specific form” or  by papal approval, without possibility of recourse.     

This procedure, which is becoming increasingly common, certainly does not help to calm  souls inside an ecclesial situation traversed by considerable tension. Even supposing that human deficiencies are found in some religious communities, wouldn’t it be better to correct them rather than destroy them? What will happen to young priests and seminarians who have decided to dedicate their lives to the Church and are deprived of reference to their charism? What kind of mercy is being exercised towards them?  The case of the Franciscans of the Immaculate has set the trend in this sense.

In the case of individual priests, the equivalent of suppression is exclusion from the juridical-clerical state, that is, the so-called reduction to the lay state. We mustn’t confuse the clerical state, which refers to a juridical condition, with Holy Orders, which indicates a sacramental condition and imprints an indelible mark on the soul of the priest. The loss of the clerical state is a problematic measure, above all regarding bishops, the successors of the Apostles. Many bishops in the course of history have fallen into grave sins, schisms and heresies. The Church has often excommunicated them, but has hardly ever reduced them to the lay-state, precisely because of the indelibility of their Episcopal consecration.

Today, on the other hand, with great ease, procedures are being carried out in reducing [priests] to the lay-state, through a judicial process, but utilizing the administrative, penal process, introduced by  the 1983 new Code of Canon Law. In the administrative process there is only one level of judgment, the discretional powers of the judges are very vast and the accused, who sometimes is not even conceded a defense lawyer, is deprived of the rights that the judiciary process grants him. The prefect of the competent congregation has, furthermore, the possibility  - as in the case of the dissolving of an institute – of requesting papal approval in specific form, which renders any recourse impossible.

The consequence is a justicialist praxis on the part of the most protected institution in history, forgetting the words that Pius XII addressed to jurists: “The function of law, its dignity and sentiment of equity, natural to man, requires that punitive action, from its beginning to its end, is based not on arbitrariness and passion, but rather upon juridical, clear and fixed rules[…]. Whenever it is impossible to establish guilt with moral certainty, the principle ‘in dubio standum est pro reo’ will have to be be applied.” (Discourse of October 3, 1953 to the participants at the International Congress of Penal Law, in AAS 45 (1953), pp. 735-737).

Unlike excommunication, which defers to the idea of absolute truth held by the Church, the reduction to the lay-state is understood more easily by the world, which conceives the Church as a firm – a company, which can “fire” its employees, even without a just cause. This functionalistic conception of authority thwarts the penitential dimension of the Church. By imposing prayer and penitence to the guilty, the Church demonstrates that She cares above all for their souls. Today, to please the world, which demands exemplary punishments, there is disinterest in the souls of the guilty, who are sent home, without any further care by the Church.

In an article published by the Corriere della Sera of April 11, 2019, Benedict XVI blamed the cause of the moral collapse of the Church on “the protection of civil rights” (garantismo). In the years following ’68, even in the Church, “the rights of the accused had to be guaranteed to the point of excluding a condemnation”.  The problem, in reality, was not that of an excess of guaranty for the accused, but in an excess of tolerance for their crimes, some of which, like homosexuality, have ceased to be considered such since the years of the Second Vatican Council, which came  before the 1968 Revolution. It was in the years of the Council and Post-Council that a relativist culture in which homosexuality was considered morally irrelevant and pacifically tolerated, penetrated Catholic seminaries, colleges and universities. Benedict XVI, who called for “zero tolerance” against pedophilia, never called for “zero tolerance” against homosexuality, thus bending, like his successor, to the laws of the world.

Over the last few weeks, new revelations have emerged from Carlo Maria Viganò, regarding the grave crimes against morality committed by Archbishop Edgar Peña Parra, chosen by Pope Francis as Substitute at the Secretariat of State. Why have the ecclesiastical authorities – who were aware for years about these accusations –  never initiated investigations, just as they have never done likewise for crimes committed in the Pius X Pre-Seminary, which trains altar boys for papal ceremonies in St. Peter’s Basilica?  The authorities have a duty to initiate an investigation: an absolute duty, after the words of the courageous Archbishop resounded over the entire world.

Another question awaits a response. Cardinal George Pell, since last March, has been in solitary confinement in Melbourne’s maximum security prison, pending a new judgment, after being convicted in the first degree. Why are the ecclesiastical authorities depriving him of a canonical process which would establish his guilt or innocence, not before the world, but before the Church?  It is scandalous that Cardinal Pell is in prison and the Church keeps silent, awaiting the judgment of the world and refusing to issue its own judgment, possibly in contrast to that of the world.

What is the Church afraid of? Didn’t Jesus Christ come to triumph over the world?  The law which should be an instrument of truth, has become an instrument of power by those who are governing the Church today. Yet a Church in which the principle of legality is extinguished is a Church without Truth and a Church without Truth ceases to be Church.

Translation: Contributor Francesca Romana