-=Judgement=-
With Pope John Paul II as our Holy Father and Most Reverend George Pell as Archbishop of Melbourne, the Tribunal of Melbourne, sitting as a court of first instance at the Tribunal Offices, 402 Albert Street, East Melbourne Victoria, and consisting of a turnus of judges, namely
issues on 14 March 2001 the following definitive decision in the contentious trail of rights in which John Raymond Lilburne, a Catholic domiciled within the Parish of Park Orchards-Warrandyte (within the Archdiocese of Melbourne) was the petitioner, and Very Reverend Gerard Patrick Dowling, domiciled within the Cathedral Parish of the Archdiocese of Melbourne, was the respondent. The petitioner appointed Mrs Maree Rewell as his advocate and procurator.
SPECIES FACTI
John Raymond Lilburne became a seminarian for the Archdiocese of Melbourne in early 1999 at Corpus Christi College, Carlton. Following the current policy at Corpus Christi College, John Lilburne, together with his class-mates, was instituted as a lector early in the second year of his seminary course. The institution to the ministry of lector occurred in St Patrick's Cathedral, East Melbourne, on 27 February 2000, the celebrant being Most Reverend George Pell, Archbishop of Melbourne. About July 2000, John Lilburne ceased being a seminarian, and left Corpus Christi College. Soon afterwards, John Lilburne made a number of approaches to Very Reverend Gerard Patrick Dowling, Dean of St Patrick's Cathedral, East Melbourne, advising that he was an instituted lector, and reqesting that he be permitted to function as an instituted lector in St Patrick's Cathedral. On 25 October 2000, Dean Dowling advised John Lilburne that he was not ready to consider his inclusion as a reader at the Cathedral as at that time there were, in respect to readers, no vacancies and a waiting list.
On 14 November 2000, John Lilburne lodged a petition with this Tribunal, requesting that Dean Dowling receive a penalty for infringing John Lilburne's rights by breaching the prescriptions of cann. 230.3, 220, 231.2, 846.1 & 1375.
On 7 December 2000 a collegiate tribunal of three judges was constituted, and on 6 February 2001 it accepted the petition, being competent to do so as the respondent is domiciled with the Archdiocese of Melbourne, and the subject matter of the litigation occurred within the Archdiocese of Melbourne. On 6 February 2001 the point at issue was determined to be: Whether the respondent had violated the rights of the petitioner by breaching the prescriptions of cann. 230.3, 220, 231.2 & 846.1? Moreover, if proven guilty, is the respondent to be punished by a just penalty according to the prescriptions of can. 1375?
After the proofs had been assembled, the acts of the case were published on 13 February 2001. Further proofs were admitted and published on 27 February 2001, and as neither party had any further proofs to bring forward, the conclusion of the case was ordered on 2 March 2001.
Since then, the advocate for the petitioner has submitted pleadings, the respondent having advised that he was happy to leave the matter to the justice of the court. On 9 March 2001, because the case was considered to be one of greater importance, the tribunal of three judges was replaced by a collegiate tribunal of five judges. This Tribunal now addresses itself to the dubium, which is formulated in the usual way: "Whether the point at issue is proven?"
IN IURE
In his petition, the petitioner has referred to several canons in the Code of Canon Law, and to some liturgical legislation. We now proceed to give this Tribunal's exposition of these pieces of legislation. As well, we shall give an exposition of can. 145, which is necessary for an understanding of the issues being considered.
a) Can. 230.3
Can. 230.3 states: Where the needs of the Church require and ministers are not available, lay people, even though they are not lectors or acolytes, can supply certain of their functions, that is exercise the ministry of the word, preside over liturgical prayers, confer baptism and distribute Holy Communion, in accordance with the provisions of the law.
The entire can. 230 deals with different types of lay ministry exercised in the Church. The first paragraph states that lay men can be instituted into the stable ministries of lector and acolyte. The second paragraph states that all lay persons can receive a temporary assignment to the role of
lector, as well as to roles such as commentator and cantor. This third paragraph of can. 230 is dealing with what are known as extraordinary ministers (and sometimes inaccurately as special ministers). It is stating that when the ordinary Church ministers - bishops, priests and deacons - are unavailable to carry out the functions of their ministry, certain of their functions can be carried out by lay persons, provided the carrying out of such functions is done in accordance with the provisions of the law, and not just according to their own whim or initiative. The examples given here, namely exercising the ministry of the word, presiding over liturgical prayers, conferring baptism and distributing Holy Communion, are not exhaustive,
{Footnote 1: Cf. cann. 759, 766, 861.2 & 910.2; Sacred Congregation for Divine Worship, General Instruction on the Liturgy of the Hours, 2 Feb. 1971, nn. 254 & 258.}
as others are clearly in legislation, for example being entrusted with a share in the exercise of pastoral care of a parish, exposing and deposing the Blessed Sacrament, assisting at marriage, and celebrating funeral rites.
{Footnote 2: Cf. cann. 517.2, 943 & 1112; The Rite of Funerals, nn. 19, 22[4], 25 & 51.}
In case there is any confusion as to what ministry of the word is, we note that the Holy See, quoting verbatim the definition used by the Second Vatican Council, said in 1997 that it consists in the pastoral preaching, catechesis and all forms of Christian instruction, among which the liturgical homily should hold pride of place.
{Footnote 3: Cf. Congregation for the Clergy & al., Instruction on Certain Questions regarding the Collaboration of the Non-Ordained Faithful in the Sacred Ministry of Priests, 15 Aug. 1997, art. 2.1 (Acta Apostolicae Sedis [=AAS], 89[1997], p. 863); Vatican II, dogmatic constitution, Dei Verbum, 18 Nov. 1965, n. 24.}
Moreover, can. 230.3, by using the words even though they are not lectors or acolytes, is stating that an instituted lector or acolyte has no rights to be deputed in preference to other lay persons in carrying out the ministerial functions that are proper to bishops, priests and deacons.
In fact, in the first draft of the revised Code, can. 529 of Schema canonum libri II de populo Dei (published in 1977) proposed that non-instituted lay ministers could, in the absence of sacred ministers, lectors and acolytes, supply certain functions where necessary or useful.
{Footnote 4: Cf. Communicationes, 13(1981), p. 320.}
This was not challenged when a committee of the Pontifical Commission for the Revision of the Code of Canon Law carefully examined cann. 526-38 on 16 May 1980.
{Footnote 5: Cf. ibid., p. 321}
However, at the plenary session of the Commission held during 20-28 October 1981, the text was amended to its present form to indicate that 230.1 was dealing with ministries reserved to men and stably conferred, whereas 230.2-230.3 were dealing with temporary or ad hoc deputation available to al lay persons.
{Footnote 6: Cf. ibid., 14(1982), pp. 177-9
The functions of lectors and acolytes are not listed in this canon, nor indeed anywhere in the Code of Canon Law, but elsewhere. The lector's functions were enumerated in 1972: The lector is appointed for a function [munus] proper to him, that of reading the Word of God in the liturgical assembly. Accordingly, he is to proclaim the readings from Sacred Scripture, except for the gospel in teh Mass and other sacred celebrations; he is to recite the psalm between the readings when there is no psalmist; he is to present the intentions for the general intercessions in the absence of a deacon or cantor; he is to direct the signing and teh participation by the faithful; he is to instruct the faithful for the worthy reception of the sacraments. He may also, in so far as may be necessary, take care of preparing other faithful who are appointed on a temporary basis to read the Scriptures in liturgical celebrations. That he may more fittingly and more perfectly fulfil these functions [muneribus], he is to meditate assiduously on Sacred Scripture.
{Footnote 7: Cf. Paul VI, motu proprio, Ministeria quaedam, 15 Aug. 1972, norm V (AAS, 64[1972], p. 532).}
Another enumeration is in the Ceremonial of Bishops: The lector is appointed for a function [munus] proper to him, that is of reading the Word of God in the liturgical assembly. Accordingly, he is to proclaim the readings from Sacred Scripture, except for the gospel reading in the Mass and other sacred celebrations. In addition, the lector is entrusted with the special office [munus] of instructing children and adults in the faith and preparing them to receive the sacraments worthily.
{Footnote 8: Cf. Caeremoniale Episcoporum, n. 794.}
Clearly these texts indicate that the proper functions of a lector are not those enumerated in can. 230.3.
b) Can. 220
Can. 220 states: No one may unlawfully harm the good reputation which a person enjoys, or violate the right of every person to protect his or her privacy.
The purpose of this canon is to protect two distinct rights, namely the right to one's good name, and the right to one's privacy. The canon insists that no one may unlawfully infringe either right, because there will be many cases where individuals forfeit this right by their conduct.
The source of this canon is can. 2355 of the 1917 Code, which stated: If anyone inflicts injury upon another person, not by bodily attack, but by words or writings or in any other manner, or who damages his good reputation, may not only be forced in accordance with the norms of canons 1616 and 1938 to make due satisfaction and repair the damages done, but may in addition be punished with appropriate penalties and penances, not excluding the suspension or removal from office and benefice if the offender be a cleric and the gravity of the offence demands it.
The Rotal jurisprudence is adequately summarised in Karl Holbock's well-known monumental work, and we reproduce the pertinent sections here:
"Any infringement of justice, or to express it better, any intended violation of the rights of another is unacceptable to him, is termed injury. Injury here is used in the broad sense. Three kinds of injury are set down with respect to a human person, namely injury of his body, or of his possessions, or thirdly of his reputation and honour. Injury to his honour and reputation is injury in the strict meaning of the word. Properly speaking, injury of his honour is called contumely, but of his reputation is called defamation.
"Reputation is a judgement by others of us and our life-situation. In itself, reputation is formed from the estimation of many persons but, since it arises from judgements that must agree with one another, even the judgement of one man about someone is "reputation" - at least partial and incipient. Reputation is either good of bad. In this latter case, there exists contempt. A good reputation enhances a neighbour, but contempt is a source of shame. A good reputation is in itself an asset because it is generally quite indispensible for us, if we are to perform advantageously the tasks entrusted to us. [...].
"Since good reputation and honour are a product of virtue and of proper living in society, the laws of nature oblige everyone to preserve them. Consequently, everyone has a correlative right not to be impeded in acquiring a good reputation, and also not to be unjustly harmed in the reputation he possesses. It follows that the right to a good reputation and to honour - a right included among the absolute rights - generates the right of legitimate defence of these qualities through those coercive means that society is always bound to maintain to protect its members.
"Good reputation is externally wounded by defamation, that is by the revelation without a just cause of a true and secret crime (detraction) or by falsely imputing a crime (calumny). The conditions for defamation essential for a crime of defamation are not prescribed in canon law. They are taken from natural law so that the crime of defamation in the external forum exists when an external evil act is combined with the upset of the external social order.
"Defamation is the denigration of another's reputation made publicly, that is, in the presence of many, with the direct or indirect intention of divulging the iniquity of another. There can be no defamation without, at the least, an indirect and responsible intention of doing wrong. Hence there is the distinction between material and formal defamation. It is formal when it is done with the intention of injuring another or of besmirching another's reputation. It is material when it is done without a direct intention and will, but only with a foreseen probable danger of injuring or defaming someone. The essence of defamation, like any other crime, of wounding another's reputation, consists of two elements, the first material, the second intentional. The latter element is the bad will or bad intention, the bad intention being to injure or to propose something against another. The former is composed of words or deeds, that are calculated to diminish or wound the worth of another. For formal, and strictly speaking, wrongful defamation, there is required evil intent. Without evil intent, there is no defamation. [...].
"If anyone has a right to do something, even if the loss of honour and esteem of some person may follow from it, injury is not considered to be inflicted. [...].
"An action for injury can be set up either according to criminal law for public defence, or according to civil law for repairing the damages that follow from the injury, for the personal advantage of the plaintiff. As far as a civil action is concerned, the plaintiff ought to prove that he has in fact suffered loss, and that the accused was in fact the efficacious and unjust cause of this loss. [...]."
{Footnote 9: Cf. K. Holbock, Tractatus de jurisprudentia Sacrae Romanae Rotae. Graz, Austria, Verlag Styria, 1957, pp. 386-9.}
c) Can 231.2
Can. 231.2 states: Without prejudice to the provisions of can. 230.1, they [i.e. lay people who are pledged to a special service of the Church, whether permanently or for a time] have the right to a worthy remuneration befitting their conditon, whereby, with due regard to the provisions of civil law, they can becomingly provide for their own needs and the needs of their families. Likewise, they have the right to have their insurance, social security and medical benefits duly safeguarded.
The requirements of social justice towards lay Church workers are clearly expressed in this canon, which is canonising the teaching of the Second Vatican Council:
Worthy of special respect and praise in the Church are the laity, single or married, who, in a definitive way or for a period, put their person and their professional competence at the service of institutions and their activities. It is a great joy to the Church to see growing day by
day the number of lay people wh are offering their personal service to associations and works of the apostolate, whether within the confines of their own country, or in the international field, or, above all, in the Catholic communities of the missions and of the young Churches. Pastors are to welcome these lay persons with joy and gratitude. They are to see to it that their conditions of life satisfy as perfectly as possible the requirements of justice, equity and charity, chiefly in the manner of resources necessary for the maintenance of themselves and their families. They should too be provided with the necessary training and with spiritual comfort and encouragement.
{Footnote 10: Cf. Vatican II, decree, Apostolicam actuositatem, 18 Nov. 1965, n. 22.}
Also worthy of praise is that army of catechists, both men and women, to whom missionary work among the nations is so indebted; who imbued with an apostolic spirit make an outstanding and absolutely necessary contribution to the spread of the faith and the Church by their great work. [...], those who give themselves fully to this work should be assured, by being paid a just wage, of a decent standard of living and social security.
{Footnote 11: Cf. ibid., decree, Ad gentes divinitus, 7 Dec. 1965, n. 17.}
The canon is stating that those lay people who are employed to work full-time or part-time for the Church have the right to appropriate remuneration and social welfare benefits. This canon also refers to can. 230.1 which states explicitly that mere institution of a lay man by liturgical rite to the ministry of lector or of acolyte does not bring with it a right to sustenance or remuneration from the Church. Such a lector or acolyte would have to be employed to work full-time or part-time by the Church - whether to carry out the ministry of lector or acolyte, or some other work - to be eligible for remuneration.
d) Can. 846.1
Can. 846.1: The liturgical books, approved by the competent authority, are to be faithfully followed in the celebration of the sacraments. Accordingly, no one may on a personal initiative add or omit or alter anything in those books.
This is clearly not a mere exhortation, but a firm prescription. Vatican II taught that regulation of the liturgy depends solely on the authority of the Church, with the Holy See, episcopal conferences and diocesan bishops having spheres of competence, and then added, Therefore, no other person, not even a priest (sacerdos), may add remove or change anything in the liturgy on his own authority.
{Footnote 12: Cf. ibid, constitution, Sacrosanctum Concilium, 4 Dec. 1963, n. 22.}
However, the books themselves give many options for the
adaptation of the celebrations, for example, multiple choices of text, occasions where the celebrant may address the congregation in these or similar words, etc.
Having said this, we now examine the texts from liturgical books quoted by the petitioner under this canon.
The first is the General Introduction (Praenotanda) to the Lectionary for Mass, n. 51:
The reader's ministry, which is conferred through a liturgical rite, must be held in respect. When there are instituted readers available, they are to carry out their office [proprio munere] at least on Sundays and major feasts, especially at the principal Mass of the day.
It is clearly stated here that the ministry of reader - whether performed by an instituted lector or by a reader with a temporary deputation - is to be held in respect. Consequently, the ministry of reading is not the preserve of clerics. Where instituted lectors are available - that is physically available and morally available - they are to carry out their office especially at the principal Mass on Sundays and major feasts.
The next text quoted by the petitioner is from the Caeremoniale Episcoporum, n. 31:
In celebrations presided over by the bishop, it is fitting that readers formally instituted proclaim the readings and, if several readers are present, they should divide the readings accordingly.
We note that, when the new Caeremoniale Episcoporum was published by the Congregation for Divine Worship in 1984, that Congregation advised: The new Ceremonial of Bishops cannot be regarded as a liturgical book in the proper sense, since it is not a book for use in liturgical celebrations.
{Footnote 13: Cf. Congregation for Divine Worship, decree, 14 Sept. 1984 (AAS, 76[1984], p. 1087).}
It then gave its purpose, namely the description of episcopal ceremonies: The Ceremonial of Bishops describes the rites carried out by a bishop ... with the intention of achieving a liturgy for bishops that is genuine, simple, clear, dignified and pastorally effective.
{Footnote 14: Cf. ibid.}
This book regulating the ceremonies conducted by bishops or with their participation indicates that in celebrations over which a bishop presides it is fitting - but not obligatory - that instituted lectors proclaim the readings.
The third text quoted by the petitioner is from the General Instruction (Institutio Generalis) to the Roman Missal (1975 edn), n. 66:
The reader is instituted to proclaim the readings from Scripture, with the exception of the gospel. He may also announce the intentions for the general intercessions and, in the absence of the psalmist, sing or read the psalm between the readings. The reader has his own proper function in the eucharistic celebration and should exercise this even though ministers of a higher rank may be present. Those who exercise the ministry of reader, even if they have not received institution, must be truly qualified and carefully prepared in order that the faithful will develop a warm and lively love for Scripture from listening to the reading of the sacred texts.
This passage is stating clearly that the Scripture readings at Mass other than the gospel are to be read by a lay reader - whether the instituted lector of the present can. 230.1 or the reader of the present can. 230.2. This is different from what was required by the Roman Missal promulgated by Pope Pius V in 1570 and its subsequent editions, namely the Scripture readings were always to be read by a cleric.
{Footnote 15: Cf. Missale Romanum ex decreto Sacrosancti Tridentini restitutum, S. Pii V Pont. Maximi jussu editum, aliorum Pontificum cura recognitum, a Pio X reformatum, et Benedicti XV auctoritate vulgatum, Ritus servandus in celebratione Missae, cap. VI, nn. 1, 4 & 8.}
We note too that this passage is not from the text of the Missal (textus missalis), but from the General Instruction (Institutio Generalis) that is a preliminary to it. Instructions are defined in can. 34 as documents which set out the provisions of a law and develop the manner in which it is to be put into effect. It is clear that instructions are not laws, but are the means of more fully explaining and enforcing laws. We note, moreover, that in the General Instruction of the Roman Missal, the usual word for instruction, namely instructio, is not used, but another word, namely institutio. Institutio is commonly translated as instruction or arrangement or method. When wondering why that word was chosen, we have the reasoning given by the Holy See:
The instruction is an accurate resume and application of those doctrinal principles and practical norms on the Eucharist that are contained in the conciliar constitution Sacrosanctum concilium (4 December 1963), Paul VI's encyclical Mysterium fidei (3 September 1965), and the Congregation of Rites' instruction Eucharisticum mysterium (25 May 1967).
{Footnote 16: Cf. Sacred Congregation for Divine Worship, declaration, 18 Nov. 1969 (Notitiae, 5[1969], p. 417).}
We consider that the Institutio Generalis is entirely different in character from the general rubrics in the Missal of Pius V. The Institutio presents first of all the doctrinal and pastoral considerations in order to give meaning to the rubrics. Therefore, any regulations are to serve the pastoral aims of the Church.
e) Can. 1375
Can. 1375 reads: Those who hinder the freedom of the ministry or of an election or of the exercise of ecclesiastical power, or the lawful use of sacred or other ecclesiastical goods, or who intimidate either an elector or one who is elected or one who exercises ecclesiastical power or ministry, may be punished with a just penalty.
This canon aims to ensure freedom and lack of intimidation within the Church, namely in the exercise of the ordained ministry, in the exercise of ecclestical offices, in the conduct of ecclesiastical elections, and with the use of sacred and ecclesiastical goods. Its fontes are five canons of the previous Code (cann. 2334, 2337, 2345, 2346 & 2390) which regulated these matters. Those canons stated:
Excommunication specially reserved to the Holy See is incurred: 1&186; by those who issue laws, ordinances or decrees against the liberty and rights of the Church; 2&186; by those who, in order to impede the exercise of jurisdiction in the internal or the extenal forum, either directly or indirectly have recourse to any secular power.
If a parish priest, in order to impede the exercise of eccesiastical jurisdiction, dares to excite the people, promote public subscriptions for himself, or rouse the people by sermons or writings, or to take other similar action, he must be punished in proportion to the gravity of his guilt by the ordinary according to his own prudent judgement, no excluding, if the matter warrants it, with suspension. In the same way, the ordinary is to punish a priest who in any way stirs up the populace to impede another priest who has been lawfully appointed as parish priest or administrator from entering a parish.
Those who usurp or retain, personally or through others, property or rights belonging to the Roman Church, incur automatic excommunication specially reserved to the Apostolic See; and if they are clerics they must be deprieved of their dignities, benefices, offices and pensions, and be declared incapable of holding such.
If anyone dares to appropriate to his own use and usurp, either personally or through others, ecclesiastical goods of any kind, whether moveable or immoveable, corporeal or incorporeal, or prevent those to whom such goods rightfully belong receiving the fruits or income from eccesiastical goods, he shall be subject to excommunication until he has made complete restitution of the goods, has removed the above-mentioned obstacles to the reception of the revenue or income by those entitled to it, and has afterwards obtained absolution from the Apostolic See. If a patron of a church or church property should be guilty of the above offense, he is automatically deprived of his right of patronage. A cleric who has been guilty of this offense or has consented to it shall, in addition, be deprived of all benefices whatsoever, shall be rendered disqualified to obtain any others, and shall be suspended from the exercise of his orders
at the discretion of the ordinary, even after he has made complete satisfaction and obtained absolution.
Those who in any manner, either in person or through others, interfere with the freedom of ecclesiastical elections, or who, after the completion of a canonical election, molest the voters or the person elected shall be punished in proportion to the gravity of their guilt. If lay persons or secular authorities unlawfully and in violation of canonical liberties presume to interfere in elections conducted by a college of clerics or religious, the electors who solicited or freely admitted such interference are automatically deprived of the right to vote in that particular election; persons who knowingly assented to being elected in that manner are automatically disqualified for the office or benefice in question.
The wording of the present can. 1375 was published in 1973 by the Pontifical Commission for the Revision of the Code of Canon Law as can. 54 of Schema documenti quo disciplina sanctionum seu paenarum in Eclesia latina denuo ordinatur. It was considered on 17 March 1977 by a special committee of the Commission established to revise penal law. This draft of the canon was accepted as written, with no need for modification, although the committee received and acted upon a recommendation from the Sacred Congregation for the Doctrine of the Faith that an additional canon be added to follow it.
{Footnote 17: Cf. Communicationes, 9(1977), p. 309.
This additional canon is the present can. 1376:
A person who profanes a sacred object, moveable or immoveable, is to be punished with a just penalty.
Can. 17 requires that ecclesiastical laws are to be understood according to the proper meaning of the words considered in their text and context. When examining the context of can. 1375, it must be noted that the fontes are the five canons from the 1917 Code quoted above. Moreover, the canon is one of those grouped under the heading Offences against Ecclestical Authorities and the Freedom of the Church. Therefore it is clear that this particular canon is attempting to ensure the free exercise of ecclesiastical offices and the correct use of ecclesiastical goods. It is not dealing as such with the rights of individuals. Instituted lectors are in lay ministry, and are in no sense ecclestical authorities exercising Church governance. Moreover, they do no automatically hold an ecclestical office.
f) Can. 145
Finally, we discuss can. 145, which, although not mentioned by the petitioner in his petition, is of great importance in this case. It reads: §1 An ecclesiastical office [officium] is any post which by divine or ecclestical disposition is established in a stable manner to further a
spiritual purpose. §2 The obligations and rights proper to each ecclesiastical office [officiis] are defined either by the law by which the office [officium] is established, or by a decree of the competent authority whereby it is at one and the same time established and conferred.
A fundamental principle is that the functions of ministry are different from office. This is quite clear and obvious when dealing with sacred ministers, namely those men in the Church who have been ordained bishops, priests and deacons. In addition to becoming sacred ministers through sacramental ordination, they have to receive a canonical office in which they can exercise the functions of their ministry. The offices are many and varied, for example diocesan bishop of X, auxiliary bishop of Y, parish priest of Z, episcopal vicar for A, chaplain to B, assistant priest of C, deacon appointed to parish D, etc.
Installation to a ministry of lector or acolyte without appointment to serve a specific ecclesial group or worshipping community would be meaningless. Normally no bishop, priest or deacon can lawfully exercise his ministry without holding an office that requires the exercise of his ministerial functions. In order to exercise lawfully his ministerial functions outside the context of an office that he holds, permission needs to be obtained,
{Footnote 18: Cf. e.g. cann. 764, 862, 886, 903, 1003, 1017, 1109, 1206, 1207, 1469, etc.}
unless it is granted by the law.
{Footnote 19: Cf. e.g. cann. 883, 976, 1116, etc.}
Similarly, after a lay man has been instituted as a lector, he needs to be provided with an ecclesiastical office wherein he can carry out the functions of his ministry. In the Australian Church, most men who have been instituted as lectors have been seminarians preparing for the priesthood, or men preparing for the permanent diaconate. Their exercise of the functions of the ministry of lector would normally occur with the office of pastoral associate at the parish or parishes to which they are appointed as part of their seminary or pastoral formation. However, should a bishop institute a lector not not destined for Holy Orders, he would need to appoint him to a pastoral office where the functions of this ministry can be lawfully exercised.
Can. 146 states that an ecclestical office cannot be validly obtained without canonical provision. Can. 147 states that ecclesiastical offices are provided by free conferral, by appointment after presentation, by confirmation or admission after election or postulation, or by acceptance of a simple election. Within a diocese, all appointments to offices are the prerogative of the diocesan bishop and are by his free conferral, unless the law expressly states otherwise (can. 157). The power to make such apppointments is executive power, which is part of the diocesan bishop's power of governance, although it can be delegated to other clerics(cann. 129 & 137).
IN FACTO
We now proceed to apply the law to the facts contained in the evidence brought before us. We shall also make some observations on some other points brought before us, that have little or nothing to do with the point at issue.
a) Can. 230 §3
We believe that the petitioner has misread or misinterpreted this third paragraph of can. 230. The paragraph is simply dealing with extraordinary ministers. The context is clearly indicating lay persons supplying certains of the functions proper to sacred ministers, namely bishops, priests and deacons. The words ministers are not available (deficientibus ministris) cannot refer to the lay ministers of lector and acolyte, as the functions listed in can. 230 §3 are not proper either to lectors or to acolytes.
Therefore, the respondent has not violated the petitioner's rights by breaching the prescriptions of can. 230 §3.
b) Can. 220
The jurisprudence we have expounded above teaches that defamation is the denigration of another's reputation made publicly, with the responsible intention - direct or indirect - of divulging the iniquity of another. There must be at least foreseen probable danger of wounding the petitioner's reputation. The petitioner has refused the invitation to bring forward witnesses to testify to the defamation of him by the respondent. The petitioner's argument seems to be that his relatives and friends, are the parishioners of the Cathedral parish, expect to see him at Mass daily in the Cathedral, dressed in an alb, with a seat in the sanctuary, and reading the Scripture readings and intercessions. Moreover, the petitioner's reputation would be enhanced by his relatives and friends, and the petitioners, seeing this.
Even if we were to accept that such dressing, seating and reading would enhance the reputation of the petitioner, we cannot accept the argument that refusal to enhance a reputation is defamation. For defamation there must be a intention to besmirch a reputation. There must also be an adverse judgement by others. There is simply no evidence to support any of this.
Therefore, the respondent has not violated the petitioner's rights by breaching the prescriptions of can. 220.
c) Can. 231 §2
The law is clear. Those employed by the Church must be remunerated, and enjoy normal social welfare benefits. Can. 230 §1 states unequivocally that institution of a layman to the ministry of lector does not bring a right to sustenance or remuneration. The respondent has no obligation to employ the petitioner, even if he were to invite him on occasion or often to read as an instituted lector. The respondent did not institute the petitioner as a lector. It is clear that the Archbishop of Melbourne did that. Therefore the respondent could not even have implied that appointment to an ecclesiastical office or employment by a Church agency would be linked to, or follow from, the institution to a liturgical munus.
Therefore, the respondent has not violated the petitioner's rights by breaching the prescriptions of can. 231 §2.
d) Can. 846 §1
The petitioner has cited three liturgical texts to illustrate his claim that the repondent has violated the prescriptions of can. 846 §1.
One text is from the Caeremoniale episcoporum, which is clearly not a liturgical book in the proper sense, as it merely describes rites. At any event, this book is for bishops, so we cannot see how its prescriptions apply to the respondent, except in the remote sense that he sometimes assists in rites celebrated by a bishop. Moreover, this text simply states it is fitting, and refrains from implying an obligation by using words such as it is obligatory.
Another text quoted by the petitioner is from the Institutio Generalis of the current Roman Missal. It deals with the functions and qualities of readers, whether they be instituted lectors or non-instituted readers. It does not insist on instituted lectors being used.
The other passage does state that, where instituted lectors are available, they are to carry out their office on Sundays and feast days. Therefore we must consider carefully whether the respondent is infringing the petitioner's rights.
First, strictly speaking the liturgical books are to be faithfully followed. That clearly means that the texts of prayers and readings, and the associated rubrics, must be faithfully followed. Instructions and introductions give principles and pastoral norms to assist the users of the texts and rubrics. If an instituted lector has been given an office to serve a worshipping community (such as pastoral associate, sacristan, catechist, director of catechumenate program, etc.), naturally it would be appropriate and normal for him to carry out the special munus he possesses. We note, too, that Bishop Hart, a consultor for almost a decade at the Congregation for Divine Worship &
the Discipline of the Sacraments, is of the opinion that the words they are to carry out their office are not to be taken in an exclusive sense, but in the sense that it is highly appropriate.
However, fundamental and crucial to our deliberation is can. 145, which we have evaluated above in our exposition of the law. The suggestion that a blessing, even if solemnly imparted by a bishop, is at the same time imposing an office is preposterous. Analogous is the blessing of an abbot. The manus of abbot - like that of lector - is permanent. It too may never be repeated, even should the abbot be transferred to abbot of another abbey. An abbot, despite his abbatial blessing, may carry out his abbatial munus only within the abbey he governs. Even to use his pontifical insignia in another monastery, and even to use it within his own abbey after retirement he needs the consent of the new abbot.
{Footnote 20: Cf. Paul VI, motu proprio, Pontificalia insignia, 21 June 1968, nn. 3-4 (AAS, 60[1968], p. 376). }
The reason is clear. He has received the munus of abbot at his abbatial blessing, but he is not to use it outside the context of the officium of abbot.
Instituted lectors without an officium may be available [adsunt] physically. However, they may not presume that they are available morally. The petitioner's advocate has argued that an instituted lector must take priority over all readers temporarily designated. We judge that only instituted lectors who hold an office that calls for liturgical reading at St Patrick's Cathedral take priority over other readers at St Patrick's Cathedral. The parallel cited by the advocate - that of a priest concelebrant displacing an extraordinary minister of the Eucharist - is not quite ad rem, as priests without an office at the Cathedral do not have a right to concelebrate there. If they concelebrate there, they do so by invitation or with permission. Only then, do they have the right to displace other ministers.
The petitioner's advocate has referred twice to a letter of 11 September 1987 from the Cardinal Prefect of the Congregation of the Sacraments to all Papal representatives. This is clearly a private letter with no juridic value, since it has never been published in Acta Apostolicae Sedis, Communicationes, or Notitiae, although it has been circulated.
{Footnote 21: An unofficial English translation of the Italian original is in W. Schumacher & J. Cuneo (eds), Roman Replies and CLSA Advisory Opinions 1988, Washington, Canon Law Society of America, 1988, pp. 4-5; a different English translation is in a letter from Mons Diego Causero (Nunciature Chargé d' Affaires) to Archbishop Edward Clancy (President of Australian Catholic Bishops' Conference), Canberra, 25 Sept. 1987 (cf. Vicar General to clergy, East Melbourne, 19 Oct. 1987, p. 3).}
The Cardinal Prefect was clearly advising Papal representatives to advise bishops in their jurisdiction that there were abuses in some places which should be noticed and remedied. The abuse was extraordinary ministers of the Eucharist taking over the role of ordinary ministers. This private letter cannot be read to say any more or less than that.
Therefore, the respondent has not violated the petitioner's rights by breaching the prescriptions of can. 846 §1.
e) Can. 1375
As it has not been proven that the respondent infringed the petitioner's rights, the question about a penalty lapses. Should this Tribunal have found that the petitioner's rights had been infringed, we would have found in the negative as regards the prescriptions of can. 1375. the appropriate canon would be can. 1399, provided that the special gravity of the violation required it and necessity demanded that scandals be prevented or repaired. We cannot see, in the evidence before us, even a fumus of admiratio, much less scandalum.
f) Some other points raised in this case, but irrelevant to the point at issue
As we, the undersigned judges, have reflected on the law and evaluated the evidence, we have been somewhat unnerved by several facts that have emerged from the evidence before us.
We note that seminarians at Corpus Christi College are being instituted as lector early in the second year of their seven-year seminary course. For many years, the ordination to the minor order of lector occurred at the end of the fifth year of an eight-year seminary course. There may be merit in the seminary trustees and staff considering whether the present timing of installation is premature, and asking whether it should be postponed until seminarians are advanced enough in theological, canonical and liturgical learning to be able to distinguish between munus and officum. If the ceremony of institution of lectors takes place in future publicly in the cathedral rather than privately in the seminary chapel (the traditional venue) as suggested by Father McKenna (p. 18), and if the instituting bishop uses the sample homily reproduced on p. 41, the impression could be created in the minds of the ignorant and the confused that, along with the munus of lector, an officium is being conferred giving those installed lectors the right to walk into any church in the Archdiocese and exercise the munus, despite what other legitimate arrangements may be in place.
We have learnt in this case that a former seminarian believes that institution as a lector brings rank and precedence in the Church. Surely membership and rank comes from nothing other than baptism, confirmation and holy orders. Any munus or officium exists because of service. The Great Lawgiver, in reaction to the apostles jockeying for precedence, taught, If anyone wants to be first, he must make himself last of all and servant of all, and Anyone who wants to be great among you must be your servant, and anyone who wants to be first among you must be your slave,
just as the Son of Man came not to be served but to serve, and to give his life as a ransom for many.
{Footnote 22: Cf. Mk 9:35; Mt 20:26-28.}
The canons on precedence in the 1917 Code were not reproduced in the 1983 Code.
It is simply not correct to state that ministries are described as offices throughout Ministeria quaedam. A reading of that document in the original Latin reveals the use of the word munus rather than officium most of the time. As regards Ministeria quaedam stating that ministries (formerly known as minor orders) establish a Christian in a special class or rank: the document at that point was reviewing the past. The document then proceeded to announce that that state of affairs was being adapted to contemporary needs, so that minor orders became ministries, conferred not by an ordination but by an institution. The result would be a clear distinction between clergy and laity, and consequently between what is reserved to clerics and what is entrusted to lay persons. Prior to the Second Vatican Council, it was commonly taught that the lectorate, a minor order, gave the power of reading - potestatem legendi - the Sacred Scriptures in church.
{Footnote 23: Cf. e.g. N. Halligan, The Administration of the Sacraments, Cork, Mercier, 1962, p. 389; A Sabetti, Compendium Theologiae Moralis, New York, Pustet, 1919, p. 810; E. Genicot, Institutiones Theologiae Moralis, Brussels, Dewit, 1927, p. 383; J.P. Gury, Compendium Theologiae Moralis, Ratisbon, Manx, 1874, p. 744.}
No reputable theologian would hold such theology today. Today, we see the lector as receiving the munus of reading the Scriptures in church.
The question of an instituted lector wearing an alb has appeared several times in the Acts (pp. 4, 14, 16, 19, 25, 37 & 38). We note too that one liturgical text states, ... an instituted lector must wear the distinctive vestment of their office when they go to the lectern to read the word of God.
{Footnote 24: Cf. General Introduction to the Lectionary, n. 54.}
However, we must not forget that liturgical laws are ecclesiastical laws and like most other ecclesiastical laws can be affected by custom (Cann. 23-28). Canonists have always distinguished three kinds of approval - express, tacit and legal - and that any of these suffices to give custom the force of law.
{Footnote 25: Cf. e.g. Benedict XIV, De synodo dioecesana, lib. xiii, cap. v, nn. 3-5.}
Whatever may written about lectors or readers wearing albs, surely the custom, not only in the Archdiocese of Melbourne but throughout Australia, is that they do not. We see a parallel with the requirement of the Tridentine Roman Ritual, that priests were to wear a surplice and violet stole when hearing confessions.
{Footnote 26: Cf. Rituale Romanum Pauli V Pontificis Maximi jussu editum aliorumque pontificum cura recognitum atque auctoritate Pii XI Pontificis Maximi ad norman codicis juris canonici accomodatum, tit. III, cap. 1, n. 10.}
In Australia, custom permitted priests to ignore the
surplice and use only the stole, and both Melbourne diocesan legislation and Australian Plenary Council legislation reenforced this.
{Footnote 27: Cf. Prima Synodus dioecesana Melbournensis habita in ecclesia Sancti Patritii, diebus X et XI martii 1875, decr. V; Concilium plenarium IV Australiae et Novae Zelandiae, habitum apud Sydney a die 4a ad diem 12 am mensis septembris anno Domini 1937, praeside excell.mo ac rev.mo Joanne Panico, archiepiscopo tit. Justinianen. delegato apostolico, a Sancta Sede recognitum, decr. 399.}
The petitioner's advocate has suggested that an attitude of complacency may have arisen in the Church around the conferral of the ministries of lector and acolyte. She states that they have come to be seen only as incidental steps on the path to diaconate and priesthood, and that Ministeria quaedam requires that they are not to be restricted to this. A comprehensive doctoral research at a Roman Pontifical institute into the lectorate indicates that Ministeria quaedam has "left unresolved some practical pastoral considerations. It does not define the exact relationship between those lectors who are preparing for the diaconate or presbyterate from the lectors who are instituted in the ministry as a stable situation. The issue of appropriate training that a lector should receive who is not preparing for higher clerical positions is left unresolved."
{Footnote 28: Cf. W. G. Gregory, The Lector - Minister of the Word: An historical and liturgical study of the office of lector in the Western Church, Doct. of Liturgy diss., Rome, Pontifical Liturgical Institute, 1980, p. 558}
Naturally this is an opinion that in academic circles can be respected or debated. The questions will not be resolved by the petitioner demanding that he can walk into any church and take priority over all non-instituted readers.
Finally, the petitioner asks - somewhat dramatically - a number of questions, namely Will the Archdiocese no longer have me? Am I to be exiled, excommunicated or executed? Aim I no longer to be regarded as an instituted reader? Would a permanent instituted reader coming to the Archdiocese be stopped at the border? We believe that the real answer is that he will be treated like any bishop, priest, deacon or lay person approaching the Archdiocesan border or entering St Patrick's Cathedral. Hundreds of priests are in Melbourne at any one time, but none of them presumes the right to officiate in St Patrick's Cathedral. If appointed to an office there (for example, assistant priest) they function there. If invited to join in special Masses or ceremonies, they are free to accept the invitation. They may even offer their services on occasion. But there is no injustice done them, if their services are refused because not needed. Should the petitioner want to exercise his munus of instituted lector, we recommend that he approach the Archbishop to see whether there is an officium available in the Archdiocese of Melbourne where this can happen.
DECISIO
We now proceed to hand down our definitive judgement on the point at issue.
Having carefully weighed and fully considered all that refers to the law as expounded and the facts placed before us, we the undersigned judges forming a lawfully constituted turnus of the Tribunal of Melbourne, with only God before our eyes and having invoked the name of Christ, resolve, declare and definitively decide as follows in response to the proposed dubium:
Whether the respondent has violated the rights of the petitioner by breaching the prescriptions of can. 230.3? NEGATIVE.
Whether the respondent has violated the rights of the petitioner by breaching the prescriptions of can. 220? NEGATIVE.
Whether the respondent has violated the rights of the petitioner by breaching the prescriptions of can. 231.2? NEGATIVE.
Whether the respondent has violated the rights of the petitioner by breaching the prescriptions of can. 846.1? NEGATIVE.
In view of these decisions, the rest of the dubium concerning punishment must lapse.
We are unanimous in these decisions we have handed down. Consequently, there is no dissenting vote (cf. can. 1609.4) should there be an appeal against our judgement.
Having handed down this, our definitive judgement, we wish to commend and thank the respondent for his complete cooperation, and unfailing graciousness and courtesy, during what has been for him the most harrowing experience of having been arraigned before an ecclesiastical court.
In our deliberations, we have been helped greatly by the clear and lucid pleadings of the petitioner's advocate. Although our findings are not what she urged, nevertheless they have truly helped us to consider every aspect of this petition, and for this we are grateful.
The expenses in this hearing have been assessed as $500. They are to be paid by the petitioner.
Any appeal against this definitive judgement must be lodged within fifteen (15) canonical days from the receipt of notification of its publication. It must be directed either to the Appeal Tribunal of the Catholic Church for Australia & New Zealand, or to the Tribunal of the Roman Rota.
This judgement is to be published by an officer of this Tribunal delievering copies to the petitioner or his procurator and to the respondent.
Given at the seat of the Tribunal, 402 Albert Street, East Melbourne, Victoria, on this fourteeth day of the month of March in the year of Our Lord, 2001.
[Signed] I.B Waters
PRESIDING JUDGE & PONENS
[Signed] K.W. McIntosh
JUDGE
[Signed] John Salvano
JUDGE
[Signed] James Clarke
JUDGE
[Signed] J. Erskine
JUDGE
[Signed, unsure of name] L.M. Teague
NOTARY
Copyright J.R. Lilburne, 19 October 2001.