Reasons for
the Appeal
to the Appeal Tribunal of the Catholic Church for Australia & New Zealand
of the Judgement of the Tribunal of the Catholic Church, Victoria & Tasmania
in Causa: Lilburne-Dowling, No: 301 00 165
In accordance with Canon 1634, this document indicates the reasons for the appeal. The case is first summarised, then the flaws in the Judgement and procedures used by the Tribunal are discussed in detail.
Summary of Case Against Very Reverend Dowling
Very Reverend Dowling accepts that I was instituted as a lector, as Very Reverend Waters wrote: "His evidence clearly implies that he does not question that John Lilburne has been instituted as a lector". (Acts, page 29).
Very Reverend Dowling says: "I believe that the ultimate responsibility of who reads at Masses is mine." (Acts, page 22, Q4).
He does not make a case for why I should not being allowed to read as an instituted lector. In fact he says: "I have no personal objection whatsoever to John Lilburne being a reader of the Word of God at the Cathedral." (Acts, page 23, Q 10).
On the question of whether any of the rostered readers at St Patrick's Cathedral are instituted readers he replies: "To my knowledge, they are not." (Acts, page 46, Q 2).
From this it is clear that people who are not instituted lectors, are being given priority to read at the Cathedral, when an instituted lector is available, and that Very Reverend Dowling accepts responsibility for this situation.
This fails to comply with, for example, the General Introduction to the Lectionary for Mass, n 51: "When there are instituted readers available, they are to carry out their office at least on Sundays and major feasts, especially at the principal Mass of the day."
However, according to the Judgement, page 15: "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." Apparently the
Office of Lector is judged to be inadequate, and a further office
is needed. Examples given on page 14 of the Judgement are "pastoral
associate, sacristan, catechist, director of catechumenate program,
etc." This is an unreasonable additional requirement, which
fails to respect the Office of Lector, and makes it meaningless.
Even when this additional requirement is satisfied, by Fabian
Smith being "acting Sacristan" at St Patrick's Cathedral,
the Judgement fails to uphold the law.
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Canon 230 §3
According to page 3 of the Judgement, "ministers" in Canon 230 §3 refers to "the ordinary Church ministers - bishops, priests and deacons". This is contrary to my understanding of the term "ministers". I believe it includes lectors and acolytes, as well as bishops, priests and deacons. On page 13 of the Judgement:
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 certain 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.
The interpretation that "ministers" in Canon 230 §3 refers only to clerics fails to explain:
- The use of the term "ministers", rather than "clerics", "sacred ministers", or "ordained ministers" which would have been used by the legislator if this exclusive sense were intended.
- The context of Canon 230 §3, which is about lay ministers.
- The reference to Canon 230 §3 in the two official documents I quote on page 35 of the Acts, which give priority to instituted ministers.
Functions in Canon 230 §3
While the term "ministers" need not refer exclusively to instituted ministers, the choice of examples (as well as the context) emphasises their role. The examples are "to exercise the ministry of the word, to preside over liturgical prayers, to confer baptism, and to distribute Holy Communion in accord with the prescriptions of law." [All quotes from the Code of Canon Law in this appeal are taken from Code of Canon Law Latin-English Edition, Canon Law Society of America, Washington, 1983).
The lector's role in the ministry of the word is referred to in the two documents quoted on page 4 of the Judgement: "The lector is appointed for a function 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 the Mass and other sacred celebrations...".
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The role "to preside over liturgical prayers" would include the acolyte's role in the worship of the Eucharist outside Mass, as well as the role of instituted ministers in the Book of Blessings n 18 (d) (Acts, page 34), and for Sunday Celebrations in the Absence of a Priest, n 30 (Acts, page 35).
The role of conferring baptism is more clearly understood when it is appreciated that an instituted lector is a catechist. As stated in the Ceremonial of Bishops, n 794: "In addition the reader is entrusted with the special office of instructing children and adults in the faith and of preparing them to receive the sacraments worthily." In the Rite of Baptism for Children, Chapter IV is entitled "Rite of Baptism for Children Administered by a Catechist when no Priest or Deacon is Available". This is also covered in Canon 861 §2.
The role "to distribute Holy Communion" refers to that of the acolyte.
It is not surprising, therefore, that the Index to the Code of Canon Law New Revised English Translation (HarperCollins, 1997, page 456) has under the heading "Lector" an entry "certain functions of, 230 §3".
But according to page 4 of the Judgement: "Clearly these texts indicate that the proper functions of a lector are not those enumerated in can. 230 §3". Page 13 of the Judgement has: "the functions listed in can. 230 §3 are not proper to either lectors or to acolytes". One may agree with these sentences, particularly based on an understanding of "proper" as being exclusive. But it does not follow that Canon 230 §3 excludes lay ministers, nor that it was not included to emphasize the role of lectors and acolytes.
Priority to Lectors and Acolytes
The middle paragraph on page 3 of the Judgement does not make sense:
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.
If the term "proper" means functions only performed by clerics, then the sentence is simply meaningless: no lay person can do what only a cleric can do. But if "proper" is meant in the more general sense of being appropriate, then the assertion is wrong. The phrase even though they are not lectors or acolytes, emphasises the preference given to lectors and acolytes. Canon 230 §3 concludes with "in accord with the prescriptions of law." I referred to such laws giving instituted lectors preference in Church documents in pages 33 - 35 of the Acts.
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Extraordinary Ministers and Ordinary Ministers
Canon 230 §3 is discussed in page 13 of the Judgement: "The paragraph is simply dealing with extraordinary ministers." But to deal with "extraordinary ministers" it must also deal with "ordinary ministers".
There is a ordinary minister for distributing communion - a bishop, priest, or deacon - with others being extraordinary ministers. In the same way there is an ordinary minister for "proclaiming the readings from Sacred Scripture except for the gospel" - an instituted lector - with others being extraordinary ministers. Just as clerics have functions proper to them, lectors have a proper function.
The lector is not usurping the function of the priest. If a lector is available and the priest does these readings, then the priest is usurping the functions of the lector. This is clear from the 1975 General Instruction to the Roman Missal n 66: "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."
Page 15 of the Judgement refers to a letter of 11 September 1987. (This is a typing error, apparently not noticed by the five judges, since the letter on page 51 and 52 of the Acts has the date 21 September 1987.) The claim "This is clearly a private letter with no juridic value, since it has never been published in Acta Apostolicae Sedis ..." is misleading. The letter was about the Pontifical Commission for the Authentic Interpretation of the Code of Canon Law's response of 1 June 1988, which was published in Acta Apostolicae Sedis 80 (1988), on page 1373. This is referred to on page 35 of the Acts, and applies to this issue of ordinary and extraordinary ministers.
As the Judgement says on page 15 "The abuse was extraordinary ministers of the Eucharist taking over the role of ordinary ministers." It is unreasonable that it is not recognised how this principle applies to lectors.
Canon 145
According to page 12 of the Judgement:
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, unless it is granted by the law. Similarly, after a lay man has been instituted
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as a lector, he needs to be provided with an ecclesiastical office wherein he can carry out the functions of his ministry. ... However, should a bishop institute a lector 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.
I do not believe that the Rite of Institution of Reader is a meaningless ceremony. The "specific ecclesial group" that I was appointed to serve (at least in a formal way in the liturgy) is the Latin Church. The ceremony includes nothing more specific than that. I was not making a commitment, for example, to always live in the Archdiocese of Melbourne. The lector's office is simply the Office of Lector.
Most Reverend Hart refers to the "importance of the Office of Lector" (Acts, page 24, Q 4). There is no suggestion that the "Office of Lector" is not an office, or that an additional appointment is needed for its functions to be performed.
What is the basis for saying that a bishop "would need to appoint him to a pastoral office where the functions of this ministry can be lawfully exercised."? The Judgement refers to an "office of pastoral associate" on page 12, an "office that calls for liturgical reading at St Patrick's Cathedral" on page 15, and an "office to serve a worshipping community (such as pastoral associate, sacristan, catechist, director of catechumenate program, etc.)" on page 14. With all these offices regarded as valid, why is the Office of Lector regarded as invalid?
On page 15 of the Judgement: "The suggestion that a blessing, even if solemnly imparted by a bishop, is at the same time imposing an office is preposterous." It is wrong to say that the Rite of Institution of Readers does not give the Office of Lector to the person instituted. If it does not do this, then it is a meaningless ceremony.
The Judgement's assertion that it does not give an office is inconsistent with the following:
- The bishop's words in the homily: "As readers and bearers of God's word, you will assist in this mission, and so take on a special office within the Christian community;" (Acts, page 41).
- The Office of Lector satisfies the requirements of an office listed on the bottom of page 12 of the Judgement. In accordance with Canon 146 there is canonical provision for it, given in Canon 230. In accordance with Canon 147 there is free conferral of a competent ecclesiastical authority, as occurs in the Rite of Institution. In accordance with Canon 157 this is done by the bishop. The "Office of Pastoral Associate", for example, does not satisfy these requirements to the same extent as the Office of Lector does.
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Confusion re Lawful Exercise of Functions
According to page 12 of the Judgement "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" and "should a bishop institute a lector 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." This gives the impression that it would be wrong, or unlawful, for an instituted lector to read - carry out the functions of his mininstry - without an additional "ecclesiastical office" or "pastoral office".
But according to page 14 of the Judgement: "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." So the Judgement is inconsistent, with page 12 requiring an appointment by the Archbishop, but page 14 simply requiring an invitation from the respondent.
So if Very Reverend Dowling can invite me to read as an instituted lector, why is an pastoral office required from the Archbishop to perform this function? Why before institution should I be able to read, but after institution require further approval from the Archbishop to do this? It does not seem reasonable.
According to the 1975 General Instruction to the Roman Missal, n 66, a lector is "instituted to proclaim the readings". But page 12 of the Judgement seems to say: a lector is instituted to prevent him from proclaiming the readings, unless the Archbishop appoints him to a pastoral office. It is an unreasonable assertion that is likely to cause confusion.
A Word Game?
What difference is there whether the word used is "office" rather than "function" or "ministry"? To an extent it is simply a question of semantics - whether I am not being allowed to perform my "ministry", "office" or "function", my ministeria, officium, or munus. I have been instituted as a lector, but am not allowed to read. Whichever word is used for what happened when I was instituted, this is still wrong.
But if I do not have an office - "officia" - then it could be argued that the words of Canon 230 §3 "officia supplere" do not apply to me. Perhaps this is why the Judgement pays so much attention to the word, so I examine how it is used for instituted ministers in the next section.
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"Office" in the Motu Propiro Ministeria Quaedam
From the Motu Propiro Ministeria Quaedam I find the
following words:
officia - 3 times
officium - twice
officiis - once
officii - once
The first paragraph, taken from Acta Apostolica Sedis 69 (1972), p. 529:
MINISTERIA QUAEDAM ad cultum Deo rite exhibendum et ad populi Dei servitium iuxta necessitates praestandum vetustissimis iam temporibus ab Ecclesia instituta fuerunt; quibus sacrae liturgiae et caritatis officia exercenda fidelibus committebantur, variis rerum adiunctis accommodata. Horum munerum collatio peculiari ritu saepius fiebat, quo fidelis, benedictione Dei impetrata, ad officium aliquod ecclesiasticum adimplendum in speciali classi seu gradu constituebatur.
The translation of this, (from Documents on the Liturgy, Liturgical Press, 1982, p. 908):
Certain ministeries were established by the Church even in the most ancient times for the purpose of suitably giving worship to God and for offering service to the people of God according to their needs. By these ministries, the offices to be carried out in the liturgy and the practice of charity, deemed suitable to varying circumstances, were entrusted to the faithful. The conferring of these functions often took place by a special rite, in which, after God's blessing had been implored, a Christian was established in a special class or rank for the fulfillment of some ecclesiastical function.
The Motu Propiro quotes Sacrosanctum Concilium, n 14:
(1 Pt. 2, 9; cf. 2, 4-5), vi Baptismatis ius habet et officium.
(1 Pt 2:9; see 2:4 - 5), is their right and duty by reason of their baptism.
In the next paragraph of the Motu Propiro:
In officiis peculiaribus servandis et ad hodiernas necessitates accommodandis, continentur ea, quae praesertim cum ministeriis Verbi et Altaris arctius conectuntur et in Ecclesia Latina Lectoratus, Acolythatus et Subdiaconatus vocantur;
Among the particular offices to be preserved and adapted to contemporary needs are those that are in a special way more closely connected with the ministries of the word and of the altar and that in the Latin Church are called the offices of reader and acolyte
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and the subdiaconate.
In the next paragraph:
Praeter officia Ecclesiae Latinae communia, nihil obstat, quominus Conferentiae Episcopales alia quoque petant ab Apostolica Sede, quorum institutionem in propria regione necessariam vel utilissimam, ob peculiares rationes, iudicaverint.
In addition to the offices universal in the Latin Church, the conferences of bishops may request others of the Apostolic See, if they judge the establishment of such offices in their region to be necessary or very useful because of special reasons.
In paragraph V of the Motu Propiro:
Lector suscepti officii conscius, omni ope contendat atque apta subsidia adhibeat, quo plenius in dies sibi acquirat suavem et vivum Sacrae Scripturae affectum atque cognitionem, quibus perfectior fiat Domini discipulus.
Aware of the office he has undertaken, the reader is to make every effort and employ suitable means to acquire that increasingly warm and living love and knowledge of Scripture that will make him a more perfect disciple of the Lord.
In paragraph VI, which is about the acolyte:
Poterit quoque - quatenus opus sit - aliorum fidelium institutionem curare, qui ex temporanea deputatione sacerdoti vel diacono in liturgicis actionibus opitulantur, missale, crucem, cereos etc. deferendo vel alia huiusmodi officia exercendo.
He may also, to the extent needed, take care of instructing other faithful who on a temporary basis are appointed to assist the priest or deacon in liturgical celebrations by carrying the missal, cross, candles, etc., or by performing other such duties.
Wrong Use of the term "Office"
These examples illustrate the unreasonableness of taking the word "officium" and saying it only means an appointment to a specific job. But this is the sense used on page 18 of the Judgement: "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."
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The unreasonableness of saying I have the function but not the office, the munus but not the officium, is clear from Canon 145 §1 itself:
Officium ecclesiasticum est quodlibet munus ordinatione sive divina sive ecclesiastica stabiliter constitutum in finem spiritualem exercendum.
An ecclesiastical office is any function constituted in a stable manner by divine or ecclesiastical law to be exercised for a spiritual purpose.
Other examples of this narrow use of "office" are on page 12 of the Judgement: "diocesan bishop of X, auxiliary bishop of Y, parish priest of Z, episcopal vicar of A, chaplain to B, assistant priest of C, deacon appointed to parish D, etc.". But even without such specific appointments, people would still have the "office of bishop", "office of presbyter", "office of deacon", "office of lector" or "office of acolyte". There are duties in Church law associated with these different ministries, regardless of additional duties arising from specific appointments.
But according to page 11 of the Judgement, discussing Canon 1375:
Instituted lectors are in lay ministry, and are in no sense ecclesiastical authorities exercising Church governance. Moreover, they do not automatically hold an ecclesiastical office.
It is contradictory to say someone is an instituted lector, but does not have the "Office of Lector". An instituted lector, by virtue of the rite of institution, automatically holds an ecclesiastical office - the Office of Lector. It is an office in the Church, so it is an ecclesiastical office. It is unreasonable for the Judgement to say instituted lectors do not automatically have the Office of Lector, following their institution. It could be reasonable to say that someone instituted as a lector but has lost the Office of Lector as a penalty for an offence, but clearly this is not the meaning intended.
Perhaps part of the entry on "office" from the Harper Collins Encyclopedia of Catholicism (New York, 1995, page 931) will be useful:
In the 1917 Code of Canon Law, officeholders were limited to the clergy alone, because "office" was strictly defined; it included the exercise of jurisdiction, the governing power within the Church. Because clerics alone could possess jurisdiction, positions requiring it were limited to them alone. In the current code (1983) the term "office" is understood in a broader sense; any permanent ministry for the good of souls is considered to be an office. Broadening the definition of office not only allows members of the laity the opportunity to hold office, but also places additional positions under the same norms as clerical offices, thus protecting the rights of lay ministers.
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According to page 12 of the Judgement: "A fundamental principle is that the functions of ministry are different from office." Perhaps there was such a principle in the 1917 code, but for instituted lectors the terms "ministry", "function" and "office" seem to be used without much difference, in the Motu Propiro Minsteria Quaedam.
Judgement Inconsistent Regarding Fabian Smith
The Judgement fails to use the criteria it establishes in the case of Fabian Smith.
According to page 14 of the Judgement: "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."
On Acts page 38 I give evidence that Fabian Smith is an instituted lector and that on Sunday 21 January 2001 I saw him as an altar server with Very Reverend Dowling, but not reading. On Acts page 46, Question 3, Very Reverend Dowling gives evidence about Fabian Smith: "At the Cathedral he was acting Sacristan."
So even when someone has the additional requirement of "an office to serve the worshipping community (such as .... sacristan..." the Judgement fails to apply this. Simply on this point my rights under Canon 846, that the liturgical books be faithfully observed, are breached.
Of course I believe that Fabian Smith should read simply because he is an instituted lector. But the Judgement, which makes the additional requirement of a job like sacristan, fails to uphold the law even when this additional requirement is satisfied.
In this section other flaws in the Judgement are discussed. I do not consider these issues as the central to this case. I hope that in raising them, there is not a diversion from the central issues above. They are included, not only because I think they should be corrected, but also to highlight the short comings of the Judgement.
Canon 220
The Judgement fails to address the issue of the damage to my reputation in being treated as someone who had lost the office or ministry of lector. This was an issue raised in the Libellus: "that the ministry was somehow removed as a penalty for some offence." On page 37 of the Acts I wrote:
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Valid reasons for preventing me from functioning as an instituted reader would be for the penalties of excommunication (in accordance with Canon 1331), interdiction (Canon 1332), or as a penalty in accordance with Canon 1336 (where an offender can be punished with "deprivation of power, office, function, right ...").
Canon 846 §1
On page 8 of the Judgement the liturgical texts are discussed:
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.
It is a mistake to interpret these sentences as applying to readers with a temporary deputation. What distinguishes an "instituted reader" from "a reader with a temporary deputation" is the ceremony of institution. The instituted reader's ministry is "conferred through a liturgical rite" but the "reader with a temporary deputation" does not have a ministry conferred though a liturgical rite. At least this was the case in 1981, when the instruction was written.
The mistake could be based on the Book of Blessings having a ceremony for the blessing of readers. According to Book of Blessings, published by Liturgical Press, Minnesota, in 1989, page 691:
CHAPTER 61 ORDER FOR THE BLESSING OF READERS ...
1828 This order is not intended for the institution of readers by the bishop, who uses the rite contained in the Roman Pontifical. Rather, this blessing is for parish readers who have the responsibility of proclaiming the Scriptures at Mass and other liturgical services. ...
But this ceremony did not exist in 1981 when the General Introduction to the Lectionary for Mass was written. In 1984 De Benedictionibus was published, without a Blessing for Readers. In 1989 approval was given for this additional blessing for use in the United States of America.
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The Judgement discusses the Ceremonial of Bishops on page 14:
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.
To say the Caeremoniale Episcoporum "merely describes rites" suggests an inadequate understanding of the legal importance of this book. Perhaps some quotes from the Decree of publication (from Ceremonial of Bishops, Liturgical Press, Minnesota, 1989, page 9) will show this:
The aforementioned pastoral and juridical norms issued by the Apostolic See, as well as the norms and rubrics already laid down in the liturgical books, remain in force, unless this Ceremonial corrects them. ....
The Congregation for Divine Worship prepared this new Ceremonial of Bishops and Pope John Paul II, at an audience of 7 September 1984 granted to the undersigned Pro-Prefect and the Secretary of the Congregation, by his authority approved it and ordered its publication.
By mandate of Pope John Paul II this Congregation for Divine Worship therefore publishes the new Ceremonial of Bishops and decrees that it supersedes the previous Caeremoniale Episcoporum as soon as it is issued.
All things to the contrary notwithstanding.
The Caeremoniale Episcoporum corrects earlier rubrics. Changes in it did not apply only to bishops or only to Mass with bishops. For example, according to the 1975 Roman Missal and 1981 Lectionary for Mass at the reading of the Gospel the three crosses were made only by the person reading the Gospel. But this was corrected by the Caeremoniale Episcoporum , n 74 with "The bishop signs himself in the same way on forehead, lips, and breast, and all present do the same."
The Judgement says "this text simply states it is fitting, and refrains from implying an obligation by using words such as it is obligatory." If the words were changed to "it is obligatory" then bishops would be put in the absurd position of not being allowed to celebrate Mass without an instituted reader. So it is unreasonable to use this text to say that it is not obligatory to use an instituted reader when they are available. It is stressing the importance of instituted readers being available for Mass with a bishop.
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Regarding the General Instruction to the Roman Missal, the importance of Church unity does not seem to be dealt with adequately. For example on page 9 of the Judgement:
We consider 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.
Pope Paul VI wrote on 3 April 1969 in the Apostolic Constitution of the Roman Missal, (from The Sacramentary, Catholic Book Publishing Company, New York, 1985, page 10):
After what we have presented concerning the new Roman Missal, we wish in conclusion to insist on one point in particular and to make it have its effect. When he promulgated the edito princeps of the Roman Missal, our predecessor St. Pius V offered it to the people of Christ as the instrument of liturgical unity and the expression of a pure and reverent worship in the Church. Even though, in virtue of the decree of the Second Vatican Council, we have accepted into the new Roman Missal lawful variations and adaptions, [footnote 15: See SC, art. 38-40] our own expectation in no way differs from that of our predecessor.
Change the Homily in the Roman Pontifical
According to page 16 of the Judgement: "if the instituting bishop uses the sample homily reproduced on p. 41, the impression could be created in the minds of the ignorant and confused that along with the munus of lector, an officium is being conferred ...". The solution seems to be to change the homily, or not use it.
It is extraordinary that this should be suggested in a Judgement considering Canon 846 §1: "The liturgical books approved by the competent authority are to be faithfully observed in the celebration of the sacraments; therefore no one on personal authority may add, remove or change anything in them."
The homily is part of the Roman Pontifical. According to the rubrics the homily is not optional: "the bishop gives the homily, which he concludes by speaking to the candidates in these or similar words:...". Part of the homily is: "As readers and bearers of God's word, you will assist in this mission, and so take on a special office with the Christian community;" This highlights that an office is obtained though institution, and the suggestion that the homily be changed shows the flaw in the Judgement saying institution does not give an office.
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Canon 1375
According to page 10 of the Judgement, Canon 1375 "aims to ensure freedom and lack of intimidation within the Church, namely in the exercise of the ordained ministry...". While I agree it includes the ordained ministry, there is no reason for it to exclude the lay ministry.
Albs
On page 17 of the Judgement the issue of an instituted reader wearing an alb is discussed. It is claimed that there is a custom of instituted readers not wearing albs despite the 1981 General Introduction to the Lectionary for Mass, n 54. According to page 17 of the Judgement: "Whatever may be 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."
But this contradicts Most Reverend Hart on Acts page 25: "The distinctive vestment common to all Ministers is the alb. In other words, there is no difference in the vesture for a lector than for any other Minister."
It is also inconsistent with Very Reverend McKenna on Acts page 19: "At the institution they wear an alb or a soutane and surplice. ... The February 2000 group wore albs, from memory." My evidence on Acts page 38: that the readers at the Mass of institution on 27 February 2000 wore vestments. Another case is from my evidence on Acts page 37, which describes me wearing vestments as a lector at the Mass on 9 November 2000.
If an instituted lector does not wear vestments in accordance with the General Introduction of the Lectionary for Mass, n 54, then it is a case of liturgical law not being followed. It is unreasonable to claim it is a legitimate custom.
In this section I raise questions about whether the procedures for trial under Canon Law were adequately followed in this case.
According to Canon 87, a diocesan bishop can dispense from some Church laws. But this Canon stresses that procedural laws cannot be dispensed from: "He cannot dispense, however, from procedural or penal laws ...". This highlights the importance of these laws for justice in the Church.
According to Canon 1454: "All persons who constitute a tribunal or assist it must take an oath that they will fulfil their function properly and faithfully." The importance of the procedures
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being followed properly is thus further stressed.
Notary Not Present
At my interrogation on 6 February 2001 there was no notary present. Very Reverend Waters took notes himself, without using a tape recorder that was available on the desk. There is no indication of a notary being present at any of the other interrogations, so I assume the same method was used for these as well.
This method seems to breach Canon 1561: "The examination of a witness is conducted by the judge, a delegate or an auditor, who is to be assisted by a notary;...". Similarly Canon 1567: "The answer is to be put in writing at once by the notary ...". According to Canon 1569:
§1. At the conclusion of the examination what the notary has put in writing from the deposition must be read to the witness or the witness must be given an opportunity to listen to the tape recording of the deposition with the option of adding to, suppressing, correcting or changing it.
§2. Finally the acts must be signed by the witness, the judge and the notary.
None of the interrogations in the Acts have these three signatures. In my case, parts of the interrogation were read back to me during the interrogation. However the complete examination was not read back to me at the conclusion, in accordance with Canon 1569. Thus I was not given the opportunity to correct the interrogation. One obvious flaw I would have corrected is on Acts, page 13, question 2. I am asked for my date of birth, but according to the Acts I did not give it (although, from memory, I think I did).
The importance of the notary is stressed in Canon 1473:
Whenever the signature of the parties or witnesses is required for judicial acts and a party or a witness cannot or will not sign, this is to be noted in the acts; both the judge and the notary are to attest that the act has been read to the party or witness verbatim and that the party or witness either could not or would not sign.
But by not having a notary present, this is not possible.
Canon 1437 also stresses the importance of a notary:
§1. A notary is to be present during each procedure so that the acts are considered null if they have not been signed by the notary.
Page 16
Procedure for Appeal
On 29 March 2001 I wrote to Very Reverend Waters:
I am writing to lodge an appeal, in accordance with Canon 1630. I direct it to the Appeal Tribunal of the Catholic Church for Australia & New Zealand.
I intend to give the reasons for the appeal when I pursue it, in accordance with Canon 1634.
His reply of 9 April 2001 included:
... As soon as I have received your appeal, I shall forward it to the Judicial Vicar of the Appeal Tribunal.
You have until 29 April 2001 to forward the appeal to me. ...
This does not seem in accord with Canon 1634 §1: "In order to prosecute an appeal, it is required and suffices that the party call upon the services of a higher judge for the emendation of the challenged sentence, append a copy of this sentence, and indicate the reasons for the appeal."
Given the contents of this appeal it seems inappropriate to me that it be forwarded through the Tribunal of the Catholic Church, Victoria & Tasmania.
JOHN LILBURNE
23 April 2001
Copyright J.R. Lilburne, 19 October 2001.