The declaration by the Congregation for the Faith concerning the excommunication of Fr Tissa Balasuriya O.M.I.: A question of canonical invalidity
In a Notification1 dated 2 January 1997, the Congregation for the Doctrine of the Faith (CDF) published a declaration – approved ‘in specific form’ by Pope John Paul II – stating that Sri Lankan Fr Tissa Balasuriya OMI ‘has incurred excommunication latae sententiae’ under Canon 1364 §1 of the Code of Canon Law J983, a canon penalising the offences of heresy, apostasy and schism.
The basis for this declaration was the publication by Fr Balasuriya of his book, Mary and Human Liberation, in which he is alleged by the CDF to have made ‘statements incompatible with the faith of the Church regarding the doctrine of revelation and its transmission, Christology, soteriology and mariology’. Fr Balasuriya is thus accused of ‘a series of grave errors’ including failure to explicitly recognise the ‘divine sonship’ and ‘salvific functions’ of Christ’, as well as allegedly denying ‘the dogma of original sin’, the necessity of baptism, and various marian dogmas. He is also accused of relativising certain statements of the Magisterium and failing to recognise papal infallibility. In short, the allegations made against Fr Balasuriya could hardly be more serious.
The proceedings against Fr Balasuriya
Fr Balasuriya’s book was first published in 19902. More than two years later at the end of 1992, the Sri Lankan bishops invited him to respond to charges made against his book by an Ad Hoc Theological Commission. After certain exchanges between Fr Balasuriya and various Sri Lankan bishops, the Catholic Bishops Conference of Sri Lanka finally published a statement on June 5 1994 referring to ‘four glaring errors’ contained in Fr Balasuriya’s book.
In July 1994, the CDF sent 11 pages of ‘observations’ to Fr Balasuriya. He responded alleging 58 counts of ‘unproved generalisation, misunderstandings, misrepresentations, distortions and falsifications’ of his text. Then in May 1996, the CDF proposed that Fr Balasuriya should sign a specially prepared Profession of Faith ‘in order to overcome your objections concerning the correct interpretation of your thought’, and ‘which would make it possible to verify if you accept these truths which were expressed with a lack of clarity in your book’. Alternatively, he would face a declaration of excommunication under Canon 1364 §1.
For his part, Fr Balasuriya objected to certain formulations of the special Profession of Faith, and proposed instead to sign the Solemn Profession of Faith of Pope Paul VI. This he did, adding a note to the effect that he made such a Profession of Faith ‘in the context of theological development and Church practice since Vatican n, and the freedom and responsibility of Christians and theological searchers under Canon law’. The CDF then informed Fr Balasuriya that the addition of this note ‘rendered the declaration defective, since it diminished the universal and permanent value of the definitions of the Magisterium’. In contrast, Fr Balasuriya claimed that his note strengthened his declaration, ‘transforming it from mere passive assent to an active commitment in context’.
When informed in December 1996 that a draft declaration of excommunication had been prepared against him by the CDF, Fr Balasuriya appealed to the Pope personally3. This appeal had the apparent effect of causing the pope to give his approval ‘in specific form’ to the declaration of excommunication which was eventually published on 2 January 19974.
Since that date, Fr Balasuriya has continued to contest both the theological basis of the declaration and the canonical procedure by which it was made. Clearly the theological aspects are ultimately the crux of the whole question. Nevertheless, the canonical procedural aspects are also important, especially in light of Fr Balasuriya’s continued insistence that he has been denied adequate opportunity to defend his position. Fr Balasuriya has strongly criticised many aspects of the whole process against him, beginning with the procedures adopted by the Sri Lankan bishops as well as those of the Holy See. In fact, there are many issues which could be raised in this context.
In this article, however, we will confine our attention to the essential elements of the canonical process which are required in order for a declaration of excommunication to be made. This article will show that there are serious reasons to question the extra-judicial procedure followed by the Holy See, a procedure which appears to breach various requirements of the Code of Canon Law. As I will argue, this breach has the consequence that the Declaration made by the CDF on 2 January 1997 must be considered as canonically invalid5.
WHAT IS HERESY IN CANON LAW?
It is important to begin with an understanding of what constitutes the canonical offence of heresy. Canon 751 defines heresy as ‘the obstinate post-baptism denial of some truth which must be believed with divine and catholic faith, or it is likewise an obstinate doubt concerning the same’.
As a result of this definition it can be seen that the offence of heresy involves two elements:
a) A denial of a truth which must be believed with divine and catholic faith, which would include the holding of a theological position which is incompatible with the Catholic faith, and making statements to that effect;
b) An obstinate holding to that denial, for example, by failing to take account of warnings that the theological position in question is contrary to Catholic doctrine.
In other words, simply making a heretical statement, or even to holding an erroneous heretical belief is not sufficient for a person to be condemned for heresy. To be guilty of this offence requires that the person stubbornly or obstinately persist in his or her view in spite of warnings.
Presumably, then, the CDF and Pope John Paul II have judged that Fr Balasuriya’s case fulfils both these criteria. For his part, Fr Balasuriya states that his views have been misunderstood and misrepresented and that he has been given no opportunity to correct these misunderstandings.
THE CANONICAL PENALTIES FOR HERESY
Canon 1364 §1 provides that the penalty for heresy is excommunication, which is classed in canon law as a censure or medicinal penalty. This means that the primary objective of the excommunication is to make the offending party conscious of the consequences of his or her actions and thus to reintegrate that person in the life of the Church6.
The effects of excommunication are listed in Canon 1331. They include a ban on ministerial participation in the Eucharist, on celebrating and/or receiving the sacraments, and on discharging ecclesiastical offices, ministries or functions7. It is important to note that excommunication does not affect the status of the person as a baptised Catholic. An excommunicated person remains Catholic, and an excommunicated priest remains a Catholic priest. This is consistent with the concept of excommunication as a medicinal penalty aiming at correction of the person.
THE QUESTION OF PROCEDURE
As the text of Canon 1364 indicates, a person incurs excommunication latae sententiae or automatically by the very feet of committing the offence concerned, i.e. without the need for a trial or any other kind of procedure. The justification for this is once again to be found in the concept of excommunication as a medicinal penalty designed to make a person aware of the gravity of the consequences of their action.
From a juridical point of view, however, the main question is to know whether an offence has been committed and therefore whether a person has incurred the relevant penalty. This is why the canonical procedure with respect to latae sententiae offences involves a declaration that the offence has occurred and that the penalty has thus been incurred.
The Requirement of a Judicial Process
According to Canon 1342 §1 this declaration may be made either as a result of a judicial process or an extra-judicial decree. The canon reads as follows: ‘As often as just causes preclude a judicial process a penalty can be imposed or declared by an extra-judicial decree; penal remedies and penances8, however, can be applied by a decree in any case whatsoever’.
It is therefore clear that the normal manner of declaring a penalty such as excommunication is by means of a judicial process. This is clear from the contrast with the lesser sanctions of penal remedies and penances which may be imposed by a decree in any case. Penalties, being more serious sanctions, may only be imposed by way of extra-judicial decree ‘when just causes preclude a judicial process’.
Here it is vital to note that the canon refers to ‘just causes’. The use of the term ’causes’ implies the necessity for the existence of an objective situation which would preclude a judicial process. In other words, Canon 1342 §1 does not confer a discretion on the authority concerned to choose which procedure to follow. Objective circumstances must exist which preclude the use of a judicial process and which provide the justification of the decision by the authority to resort to an extra-judicial procedure. These objective causes must also be ‘just’. In other words, there must be a cause which would make it just to dispense with a judicial procedure. This seems either to envisage a cause which originates in the alleged offender, e.g. his or her refusal to appear before a properly-constituted tribunal, or some other reason that would make it unjust to take the time that a judicial process would require. It is not easy to imagine what such circumstances could be9.
Now, as we have seen, in Fr Balasuriya’s case excommunication was declared as a result of the Notification of 2 January 1997, i.e. by an extra-judicial decree following an exchange of correspondence between Fr Balasuriya and the CDF. There was no judicial process either in Sri Lanka or in the Holy See which preceded or led to the CDF Declaration. In fact, Fr Balasuriya has never ceased to complain against the failure by the CDF and by the Sri Lankan bishops to accord him a judicial hearing to which he is a priori entitled by virtue of Canon 1342 §1.
The question then is what are the just causes, the objective and just circumstances, which have precluded a judicial process over the whole period of more than 6 years from the time of first publication of Fr Balasuriya’s book until the declaration of his excommunication on 2 January this year? The CDF Notification gives no reason for its use of extra-judicial procedure. Nor can I see what other circumstances exist in the present case which would fulfil the requirements of Canon 1342 §1.
The Utilisation of a Non-Judicial Administrative Procedure
It should also be noted that even if objective circumstances did exist which justified the use of an non-judicial administrative procedure, this does not dispense the administrator from the obligation to provide the accused person with the opportunity to be heard in his own defence. Canon 1720 sets out the procedure to be followed in the case that a decision is made to proceed to issue a decree without a trial. These procedures include informing the accused about the accusation and proofs, and ‘giving the person the opportunity of self-defence unless the accused neglects to appear (Latin: comparere) after having been duly summoned’. It is clear from the formulation of this canon therefore that even in the case of an extra-judicial decree, a hearing is required at which the accused is given the opportunity to present his defence.
In Fr Balasuriya’s case, as the CDF Notification itself states, the decision to publish the Notification was communicated by the CDF to Fr Balasuriya’s Oblate superiors on 22 July 1996. There is no indication anywhere of any attempt by the CDF to convene a hearing of any sort.
The only conclusion that one can reach then is that the procedure followed by the CDF in arriving at the Notification of 2 January 1997 is also in breach of the requirements of Canon 1342 §1 for an administrative procedure.
AN INVALID DECLARATION BY THE CDF
The consequences of a failure by the CDF to comply with the procedure laid down in Canon 1342 §1 are serious. Canon 124 §1 provides that “For the validity of a juridic act it is required that it be placed by a person capable of placing it, and that it include those elements which essentially constitute it as well as the formalities and requisites imposed by law for the validity of the act.’
Here it is clear that the use of a judicial or a non-judicial process involves much more than a question of ‘formalities’ or any other similar ‘requisites’. If by virtue of Canon 1342 §1 a case requires a judicial decision or decree, the acts which make up the judicial process form ‘the elements which essentially constitute it’. Even the non-respect of a single element of such a process, e.g. the right to be heard, would involve the invalidity of any decision reached as a result of such a flawed process. In a case, therefore, where the whole judicial process is absent, then a fortiori any decision or act posed in the absence of such a process is invalid.
Applying this reasoning to the case of Fr Balasuriya, if a judicial process is required in his case, i.e. in the absence of just causes precluding a judicial process, then the failure to use a judicial process involves the consequence that any declaration made in the absence of such a process is invalid.
The same reasoning applies with respect to an administrative procedure under Canon 1720. A failure to hold a hearing involves the absence of an essential element of the juridic act of making an extra-judicial decree.
The conclusion that flows from this is that the CDF Notification declaring Fr Balasuriya to be excommunicated is juridically invalid, which in turn means that it has no legal effect, or even no legal existence.
THE INVOLVEMENT OF POPE JOHN II
Now, we have already mentioned that Pope John Paul II has himself approved the Notification of the CDF in specific form, making the Notification in effect an act of the pontiff himself. Does this change the situation in any way? In other words, does approval by the pope of an otherwise invalid juridic act have the effect of validating such an act?
The first answer to this question is that an act posed in violation of Canon 1342 §1 is inherently defective. If there were no circumstances which objectively justified the use of an extra-judicial process in the case of Fr Balasuriya, the pope’s approval of such a process does not change those circumstances. Nor can approval by the pope of the CDF Notification make up for the failure to hold a hearing required under Canon 1720.
The second answer is that the pope is not above the law. As a bishop, he is bound by canon law. just as any other bishop is bound by canon law10. The fact that the pontiff “by virtue of his office enjoys supreme, full, immediate and universal power in the Church, which he can always freely exercise’ (Canon 331) does not mean that he is free to ignore the requirements laid down by canon law. As an illustration of this, Canon 1405 §2 explicitly previews the possibility of an appeal or recourse against a decision specifically approved by the pope, a point to which we will now turn.
SOME CANONICAL MISCONCEPTIONS
Here it is important to clear up some common misunderstandings – ones shared by many canonists and perhaps even judges of the tribunals of the Holy See. These misconceptions concern the meaning of Canon 1404, which states that ‘the First See is judged by no-one’, and of Canon 333 §3, which states that ‘there is neither appeal nor recourse against a decision or decree of the Roman Pontiff. Many canonists seem to believe that these canons preclude all appeals against the decisions and decrees of the pope.
The history of these canons, however, is very instructive here. The original source of these provisions can be traced back to Pope Symmach in the 6th century, and later to the 11th century conflicts of Pope Gregory VII as he attempted to exert papal supremacy over the whole Church and to protect ecclesial independence with respect to civil powers. More recently, these provisions derive from regulations introduced by Pope Pius IX just before the First Vatican Council whereby the pope sought to prevent any possibility of an appeal against any of his own decisions to that Council. In other words, the historical purpose of these provisions was to prevent an appeal against a decision of a pope to another non-pontifical authority11.
Here it is important to also refer to Canon 18 which states that canons which restrict or affect persons’ rights are subject to strict interpretation. A broad reading of Canons 1404 and 333 §3 would clearly potentially restrict a person’s right of appeal or recourse against an unjust decision, hence a strict interpretation is required. This leads to the conclusion that the effect of these canons is simply to prevent appeals from decisions of the pontiff to a General Council of the Church or perhaps a Synod of Bishops. Such a conclusion corresponds with the precise historical purpose of these canons.
Secondly, it ought to be noted that all the various dicasteries and congregations of the Holy See are canonically speaking emanations of the pontiff. The constitutional structure of the Church does not allow for a separation of powers in the sense of various civil jurisdictions. Thus, the CDF, as a mainly executive organ, and the tribunals of the Holy See, as judicial organs, are both organs of the pontiff. Thus, a recourse from an act or decision of a Congregation to a tribunal of the Holy See is a recourse from one pontifical organ to another pontifical organ, and not to a non-pontifical body.
Similarly, a recourse against a decision or act specifically approved by the pope is simply a matter of a recourse from an act of the pontiff acting in his administrative (executive) capacity to himself as pontiff acting in his judicial capacity. Thus, Canons 1404 and 333 §3 have absolutely no relevance in this context.
We therefore come back to Canon 1405 §2 which states that a judge cannot review an act or instrument confirmed in specific form by the Roman Pontiff ‘without his prior mandate’.
RECOURSE AGAINST AN ACT OF A PONTIFICAL ORGAN OR THE PONTIFF
In a case involving an allegation of invalidity against an act of a pontifical organ, the normal manner of proceeding would be by way of a recourse12 to the Second Section of the Apostolic Signatura. There it would be possible to obtain a judicial review of the process involved and eventually a decree declaring the invalidity of the juridic act concerned and even damages.
With respect to the CDF Notification, Fr Balasuriya did attempt to launch such a recourse. In fact, after receiving notice of Fr Balasuriya’s recourse, the Signatura had already instructed him to choose his canon lawyer. At this point Secretary of State, Cardinal Sodano sent a letter13 to the Signatura in which he recalled the provisions of Canon 140S §2, namely that that ‘a judge cannot review an act or instrument confirmed in specific form by the Roman Pontiff without his prior mandate’. In other words, before the Signatura can hear a recourse by Fr Balasuriya, it is necessary to obtain a mandate from the pope himself. After receiving the letter from Cardinal Sodano, the Signatura declared itself ‘absolutely incompetent’ to hear Fr Balasuriya’s recourse in virtue of Canon 1405 §2.
One might find it somewhat surprising that the Cardinal Secretary of State, an executive officer, should deem it necessary to recall to the Signatura, a judicial organ, its role! In fact, however, the primary role of the Secretariat of State is to closely assist the Pontiff in the exercise of his charge, and as we have already noted there is no separation of powers in the constitutional structure of the Church14. It therefore seems likely that the letter of Cardinal Sodano implies a refusal on the part of Pope John Paul II to grant the necessary mandate to the Signatura.
This refusal can probably be explained by the fact that Fr Balasuriya himself invoked the personal jurisdiction of the pontiff under Canon 1442 with his December 1996 appeal against the CDF In other words, Pope John Paul II has indicated that henceforth he wishes to deal with Fr Balasuriya’s case personally.
This leaves the pope to either try the case personally or through judges delegated by himself In practice, this would normally mean that a special tribunal would be constituted with jurisdiction to consider the case.
Responsibility to the truth
In the present case, the issue at stake is the legitimacy of a juridic act (i.e. the declaration of Fr Balasuriya’s excommunication) approved by the pontiff himself in specific form. The only remaining question, then, is to know whether and under what conditions the pope is bound to hold a judicial review of such a juridic act approved by himself?
As to whether he is so bound, we have already seen that neither the bishops nor the pope are above the law. On the contrary, their duty is to uphold the law of the Church. With respect to the civil legal order, the question of the obligation of a sovereign for upholding the law has been discussed since medieval times, mostly in terms of whether the king was bound by his own laws. Lawyers and canonists generally agreed that the king was indeed so bound. Their only question was whether this obligation was legal or moral in nature. Within the ecclesial legal order, Pope John Paul n, on the basis of his own philosophical convictions, would perhaps prefer to pose the problem in different categories from the legal obligation versus moral obligation debates of the past.
As the title of his famous encyclical indicates, Pope John Paul II has made the Splendour of the Truth a major theme of his pontificate. In terms of this category, then, let us note that just as the scientific world has established its own scientific method for arriving at the truth and for eliminating error insofar as it is humanly possible to do so, so has the legal world developed methods for achieving the goal of reaching juridical truth. These methods are known as the judicial process, and they include the rules of evidence and of procedure, as well as standards of proof, etc. To ignore these methods is to invite or increase the possibility of error, which is precisely why judicial processes are always preferred in matters involving penalties, and why administrative acts are normally subject to judicial review.
A second category often resorted to by Pope John Paul II, and by Vatican II is that of personal responsibility. It would seem to me that this is also an important category for reflecting upon the obligations of the pontiff and indeed of all Catholics to uphold the Church’s law. In this sense, we can speak of the pontiff’s special responsibility to uphold the truth in the canonical domain as well as in the theological domain. And since the judicial method offers greater certainty in arriving at the truth than administrative procedures, we can conclude that as a general principle the pontiff is bound to allow for judicial review of his own administrative acts.
Indeed, we could also add an evangelical argument here As the 1971 Synod of Bishops recognised, action for justice is a constituent element of evangelisation. In such a case, then, the pontiff by allowing for judicial review of his own administrative acts, upholds objective standards of justice. In a world marked by the tendency of civil powers to resort to extra-judicial procedures including imprisonment and even execution, Christians have both an obligation and responsibility to witness to the truth in the field of law. To fail to do so would be to betray the Gospel.
We can therefore conclude the article with a brief summary. We have made the following points:
a) That the Congregation for the Faith appears to have failed to abide by the Canon 1342 §1 requirement for a judicial procedure in the absence of just causes precluding a judicial procedure, alternatively, it has failed to follow the procedures laid down in Canon 1720 for an administrative procedure;
Such a failure involves the invalidity of the declaration of excommunication by the CDF against Fr Balasuriya,
c) Approval even in specific form, by the pontiff of an invalid decision or act does nothing to validate it;
d) Judicial review of such a decision is possible either to the Signaiura with a mandate from the pontiff under Canon 1404 §2 or alternatively to the pope acting personally or through his delegated judges under Canon 1442,
e) The pontiff has a responsibility to the truth to allow such a recourse, Le. to allow for a judicial review of his own extrajudicial administrative act.
The result of these conclusions is that Fr Balasuriya remains affected by a declaration of excommunication which appears to be invalid This is a breach of one of the fundamental rights of the faithful set out in Canon 221 §3 and which states that “the Christian faithful have the right not to be punished with canonical penalties except in accord with the norm of law’15.
The continued existence of this situation, even apart from the question of the damage to Fr Balasuriya’s good reputation (Canon 220) and his own personal suffering, is a matter of scandal to the faithful. It has already apparently led to serious divisions in the Cathode Church in Sri Lanka. It also gravely damages the Church’s reputation among the non-Catholic community, and serves to weaken the Church’s legitimacy as a voice for the truth.
Moreover, such a serious failure by the highest authorities of the Church to respect the provisions of canon law amounts to a breach of the pontifical duty to give example to the whole Church. Sadly the declaration of Fr Balasuriya’s excommunication is merely the latest in a series of similar events in which various dicasteries of the Holy See have resorted to procedures which appear to be in breach of the canonical requirements16.
In these circumstances, it is urgent for the Holy See to make public any other factual information which could provide a canonical justification for the manner of proceeding in the case of Fr Balasuriya. In the absence of such justification, then I would argue that the Holy See and the pontiff himself have incurred a no less urgent duty to initiate a judicial review of this case.
Pope John Paul II has taken many courageous steps to recognise errors of the past. It seems to me that he is now called to demonstrate even greater courage and humility in allowing for a judicial review of a wrongful and invalid act approved in specific form by himself. Having been called to take personal administrative responsibility for the extra-judicial declaration of Fr Balasuriya’s excommunication, Pope John Paul II is now obliged to take judicial responsibility as well.
Finally, let us recall that proving the invalidity of the declaration of Fr Balasuriya’s excommunication does not resolve the substantive question of whether the content of his book is heretical, and whether he has held obstinately to a heretical doctrine or doctrines. However, Fr Balasuriya has always insisted on his readiness to confront the theological questions involved in his work, and even to correct himself publicly on any points in which he may be shown to be wrong.
In both the theological and the juridical domains, then, let us endeavour to be faithful to Plato’s injunction to ‘seek the truth with one’s whole soul’.
© Stefan Gigacz 1997
1Congregation for the Doctrine of the Faith, Notification concerning the Text Mary and Human Liberation by Fr Tissa Balasuriya OMI, L’Osservatore Romano, 12 January 1997.
2For a number of documents as well as an account by Fr Balasuriya concerning this matter, see Asian Human Rights Commission, Dossier: Excommunication of Fr Tissa Balasuriya, Hong Kong, 1997. Further information drawing on Sri Lankan church sources is contained in a collective publication, Mary and Human Liberation, The Other Side, Colombo, 1997. On the issues relevant to this article the two accounts are not in contradiction.
3Canon 1442 provides that ‘the Roman Pontiff is the supreme judge for the entire Catholic world; he tries cases either personally or through the ordinary tribunals of the Holy See or through judges selected by himself. The effect of Fr Balasuriya’s appeal was thus to bypass the usual chain of recourse through the various tribunals of the Holy See by invoking the personal jurisdiction of the pope. We will return to this point below.
4Most decisions of the Holy See are obviously the work of the various dicasteries rather than the personal work of the pontiff himself, who is nevertheless consulted for his approval on the most important issues. Thus, there are two forms by which he may approve of decisions of the various agencies of the Holy See. Normally, the pontiff gives approval ‘in common form which means that the decision concerned remains the decision of the dicastery concerned and does not implicate him personally in the decision. Occasionally, the pontiff gives approval in specific form’ which means that in effect the decision of the dicastery becomes his own decision with the juridical consequences which flow from that. The relevant difference in the case of Fr Balasuriya is that no appeal or recourse is allowed against a decision specifically approved by the pontiff without a mandate from him (Canon 1405 §2).
5I point out here that my conclusions are subject to the caution that my knowledge of case is based only on materials which are publicly available. It is possible that access to the complete dossier may modify my views on certain points. Moreover, the case involves a number of very technical canonical issues. I will therefore attempt to restrict myself here to the main issues.
6Cf. Canon Law Society of America, The Code of Canon Law, A Text and Commentary, 1985 (henceforth CLSA) at p. 897. Censures or medicinal penalties are to be contrasted with expiatory penalties whose objective is ‘repair the damage done to the ecclesial order by the offender’.
7Other penalties also may be inflicted in certain circumstances including ultimately dismissal from the clerical state (Canon 1364 §2). Such a dismissal can only take place as a result of a judicial procedure (Canon 1336 §1). With respect to members of a religious institute. Canon 694 § 1 provides that a member who has ‘notoriously abandoned the faith’ is to be held to be ipso facto dismissed from the institute’. Canon 694 §2 requires the major superior and the council of the institute concerned ‘after having collected the proofs should issue a declaration ot the fact so that the dismissal is established juridically’. So far no such action has been taken against Fr Balasuriya.
8Penal remedies include admonitions and rebukes (Canon 1339); penances include ‘works of religion, piety or charity1 (Canon 1340).
9As hypothetical examples of such circumstances, the CLSA commentary mentions ‘the need to proceed expeditiously in particularly scandalous situations’, or the fact that tribunals may not be equipped to conduct a formal judicial procedure’ (CLSA, op. cit., at p. 912). The latter example seems questionable, to say the least: if the law imposes a judicial procedure, why does an adequately equipped tribunal not exist? In any event, neither of these examples seems applicable in the case of Fr Balasuriya.
10Canon 391 §1 explicitly provides that a diocesan bishop is to rule his particular church ‘in accord with the norm of law’.
11Cf. Klaus Schatz, (Joseph Hoffman, translator) La primaute du Pape, Son histoire, des origines a nos jours, Cerf, 1992, at p. 116. Cf. also CLSA at p 951, citing Vatican I, Constitution on the Church of Christ.
12Since an administrative procedure has been used, the ‘appeal’ procedure is technically termed a ‘recourse’. Article 123.1 of the Apostolic Constitution Pastor Bonus, which is the special law governing the Curia of the Holy See, allows for such recourse in cases of ‘illegitimacy’, i e where juridic acts violate the law in the manner of their decision or in the manner of proceeding.
13Letter of Cardinal Sodano to the Signature dated 5 February 1997 (The Tablet. 8 March 1997).
14Cf. Pastor Bonus, Article 39.
15There are many other pons of criticism which could be made concerning the procedure in Fr Balasuriya’s case which we cannot go into here, e.g., the question of a privilege against self-incrimination (Canon 1728 §2), which would seem to be violated by the attempted imposition on Fr Balasuriya of a specially drafted Profession of Faith. Indeed, such an imposition comes very dose to what civil lawyers cal entrapment, i.e. an attempt to create an offence or to manufacture evidence by what amounts to ‘setting up’ a person. This would be a further ground of invalidity in the proceedings m Fr Balasuriya s case.
16Cf. Francis Messner and Jean Werckmeister, Les aspects canoniques de l’Affaire Gaillot, Revue de Droit Canonique, 45, 1995, p. 75 where the authors severely criticise the procedure for the1995 removal of French Bishop Jacques Gaillot from his post as diocesan bishop as being ‘in flagrant conflict with the official discourse which claims to value canon law as an integral part of the Church’s constitution’. Another similar example is that of the Holy See’s 1989 derecognition as an International Catholic Organisation of the International Young Christian Workers (IYCW) movement, once again by means of an administrative process without any hearing. Each of these cases involved a different dicastery, a fact which indicates the seriousness of the problem – a structural failure at the level of the Holy See to respect the provisions of canon law.
17Latin: ‘Acquisitis probationibus, iudex decreto partibus et earum advocatis permittere debet, sub poena nullitatis, ut acta nondum eis nota apud tribunalis cancellarium inspiciant, quin etiam advocatis id petentibus dari potest actorum exemplar, in causis vero ad bonum publicum spectantibus iudex ad gravissima pericula evitanda aliquod actum nemini manifestandum esse decernere potest, cauto tamen ut ius defensionis semper integrum maneat.’
18Latin: ‘Immo, quoties natura causae vel probationum talis at ut ex actorum vel probationum evulgatione aliorum fama pericitetur, vel praebeatur ansa dissidiis, ant scandalum aliudve id genus incommodum oriatur, iudex poterit testes, peritos, partes earumqne advocator vel procuratores iureiurando astringere ad secretum servandum.’
19The form of approval given by Pope John Paul II to the decision of the CDF to excommunicate Fr Balasuriya is not clear. There are two possibilities in forma commune, a form which does not implicate the Pope in the decision, and which thereby remains a decision of the dicastery concerned, in this case the CDF, and in forma specifica, in which the decision of the dicastery is assumed as a decision of the Pope himself. In the case of the latter hypothesis, the decision to allow recourse to the Signature is in effect to allow a recourse against the Pope himself, a recourse normally disallowed under the terms of Canon 333 §3
However, in this case, Fr Balasuriya had attempted to present his case to the Signature before the excommunication was declared by the CDF and approved by the Pope Moreover, according to Fr Balasuriya, the Signature informed him that he needed to exhaust his opportunities for hierarchical recourse before being able to commence a recourse to the Signature In such circumstances, it would be unjust that Fr Balasuriya’s recourse to the Signature should be blocked by the approval of his excommunication in specific form of the Pope
In any event, even the allowing of a recourse against a decision approved by the Pope in specific form would not seem sufficient to justify the imposition of secrecy in this case.