By Brian Fraga - OSV Newsweekly, 5/29/2011
Pope Benedict XVI’s recent actions to remove two diocesan bishops from office may signal a new willingness to crack down on wayward clerics, but canon lawyers note that such a step remains unusual in light of the Church’s understanding of the bishop’s role.
“It’s kind of an iffy problem. I know of only two other cases in recent history where a pope removed a bishop from office against his will,” said Charles M. Wilson, executive director of the St. Joseph Foundation, a nonprofit organization in San Antonio that specializes in advising Catholics of their rights under canon law.
Wilson told Our Sunday Visitor that he believed Pope Benedict XVI had solid footing to recently relieve Bishops Jean-Claude Makaya Loemba, formerly of the Diocese of Pointe-Noire in the Republic of Congo, and William M. Morris, the former head of the Diocese of Toowoomba in Australia.
In Bishop Morris’ case, the pope acted following several requests over five years that he resign. Bishop Morris attracted scrutiny in 2006 when he wrote a pastoral letter suggesting that the Church should ordain women to the priesthood.
According to published reports, Bishop Morris also encouraged the practice of allowing children to receive first Communion before their first confession, and approved of priests offering general absolution during services. On May 2, the Vatican said that Bishop Morris had been “removed from pastoral care.”
“I don’t know what choice the pope had. (Morris) was just defiant,” Wilson told OSV.
The case of Bishop Loemba’s removal raises other questions. The Vatican issued a brief statement on March 31 announcing that he had been relieved of his office. The Roman news agency I Media reported that the pope acted because of severe management problems and tensions within the Pointe-Noire diocese.
However, Edward Peters, a canon lawyer who holds the Edmund Cardinal Szoka Chair at Sacred Heart Major Seminary in Detroit, noted on his blog recently that the Vatican had not offered any factual basis on Bishop Loemba’s case. Peters also took a cautious stance on the notion that mismanagement led to Loemba’s downfall.
“I’d be careful about putting things that way, for it feeds the impression wrongly held in various circles that bishops are just regional managers of worldwide Catholic activities, appointed and sackable by the pope as if they were employees of a major corporation,” wrote Peters, adding that criminal conduct is not the same as mismanagement.
“The bishops aren’t simply branch managers, with a diocese being like a fast-food franchise and the manager being let go for any reason,” said Wilson, who added, however, that Rome has taken a more active role in resolving diocesan disputes. Wilson noted that Rome has recently overturned some American bishops’ administrative decisions on parish closings. The canonical principle behind those moves was that the bishop must obey canon law like every-one else. “The bishops should not be allowed to exercise unlimited personal discretion in all matters,” Wilson said. “Especially if they’re violating the people’s rights, something has to be done.”
Sex abuse victims who have tried to sue the Vatican for alleged coverups by bishops have often heard the legal argument that the pope cannot be sued because he is not a micromanaging CEO with direct supervision of bishops, as if they were branch executives serving at his will.
Church teaching and canon law does in fact point to the bishop as a Church leader who acts out of his own authority.
Lumen Gentium, the Dogmatic Constitution on the Church promulgated by the Second Vatican Council, said the bishop enjoys the fullness of the Sacrament of Holy Orders, and that his authority does not operate by delegation. The document also says that bishops are not “to be regarded as vicars of the Roman pontiff.”
Canon law says a diocesan bishop “has all the ordinary, proper and immediate power required for the exercise of his pastoral office.” St. Jerome, writing in the fourth and fifth centuries, said that “wherever a bishop is, whether at Rome or at Eugubium, at Constantinople or at Rhegium ... he is of the same worth, and also of the same priesthood.”
However, a bishop’s power is not absolute. He is bound to teach authentic Catholic doctrine and uphold canonical norms while being in communion with the Holy See.
Though rare, canon law allows for a diocesan bishop to undergo a “privation” of office if he is found to be guilty of serious ecclesiastical crimes, such as violating canon law regarding the sale or misuse of church property. Mismanagement and weak job performance are not grounds for privation, said Peters.
“Deprivation of office means you’re out completely. You don’t get the office back. It’s a rare happening,” Wilson said.
Only the pope can hear criminal cases involving bishops, and such cases are generally conducted confidentially, wrote Peters.
Bishops who have run afoul of Rome for spouting heterodox teachings, sowing discord, violating canon law or, in several cases, covering up allegations of clergy sex abuse have mostly been able to avoid undergoing a canonical removal by agreeing to resign their office.
“It’s a last-resort type of thing,” said Father Jeff Cabral, a canon lawyer for the Diocese of Fall River, Mass. “These two recent cases were extreme examples. Usually, the pope can remove bishops from office after a canonical process. But in these cases, the pope, who has concern for the whole Church and the salvation of souls, had to act rather quickly.
“Once a bishop’s actions start breaking down the community of the Church, or there are other canonical grounds, that is when the pope can step in,” Father Cabral told OSV.
“What often gets lost in the shuffle is the Catholic faithful also have rights to have Church teachings clearly set out to them, and to be able to worship by the norms set down by the proper authority,” he said.
“Nobody questioned the legality of [Pope] John Paul’s actions,” said Wilson, who added that there is a principle of due process in canon law.
“I would personally prefer a trial. I think that there is a much more fair way to do it,” he said.
Brian Fraga writes from Massachusetts.
Canon law expert Charles M. Wilson says he could only recall two other cases prior to the Pope Benedict XVI’s removal of bishops this year.
In 1973, Pope Paul VI vacated the seat of Hungarian Cardinal Jozsef Mindszenty, who clashed with both communist government officials and the Holy See, which had tried to broker a compromise between the Church in Hungary and the government.
In 1995, Blessed Pope John Paul II demoted French Bishop Jacques Gaillot of Evreux after the bishop angered Rome and the French bishops’ conference by taking a variety of controversial public stances, including giving media interviews in which he lambasted other bishops and criticized the Church for failing to understand the circumstances surrounding homosexuality.
After the bishop refused to resign his seat, the late pontiff demoted him to the titular bishopric of Partenia, a diocese that has been extinct since the fifth century.
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