THE RIGHT TO ADMINISTRATIVE JUSTICE IN RELIGIOUS INSTITUTES by Justin E.A. GLYN SJ Research Seminar – DCA6395 Prof. John HUELS Faculty of Canon Law St Paul University Ottawa 2018 © Justin Glyn, Ottawa, 2018 TABLE OF CONTENTS TABLE OF ABBREVIATIONS ii GENERAL INTRODUCTION 1 CHAPTER 1 – ADMINISTRATIVE ACTS AND RIGHTS IN GENERAL 3 1.1 Classification of Administrative Acts 3 1.2 Authority of Religious Superiors to Place Administrative Acts 7 1.3 General Constraints on Administrative Action 9 CHAPTER 2 – PRACTICAL GUIDELINES FOR SUPERIORS’ ACTION 15 2.1 Preparatory Activity: The Need for the Act, Hearings, Fact-finding, Consultation 15 2.2 The Act Itself: Formalities, Delegation and Revocation 22 2.3 Example 1 – Exclusion from Perpetual Profession 25 2.4 Example 2 – Reassignment 30 Conclusion 32 CHAPTER 3 – REMEDIES 33 GENERAL CONCLUSIONS 40 BIBLIOGRAPHY 41 i TABLE OF ABBREVIATIONS AAS Acta Apostolicae Sedis, Commentarium Officiale c. canon (unless otherwise stated, references are to the 1983 Code, Codex iuris canonici, auctoritate Ioannis Pauli PP. II promulgatus fontium annotatione et indice analytico-alphabetico auctus, Libreria editrice Vaticana, 1989, English translation Code of Canon Law: Latin-English Edition, New English Translation, prepared under the auspices of the CANON LAW SOCIETY OF AMERICA, Washington, DC, Canon Law Society of America, 1999) cc. canons (unless otherwise stated, references are to the 1983 Code) CCEO Codex canonum Ecclesiarum orientalium, auctoritate Ioannis Pauli PP.II promulgatus, fontium annotatione auctus CLSBI Comm G. SHEEHY et al. (eds.), The Canon Law: Letter & Spirit, A Practical Guide to the Code of Canon Law CLSA Comm2 BEAL, J.P., J.A. CORIDEN, and T.J. GREEN (eds.), New Commentary on the Code of Canon Law Exegetical Comm. MARZOA, M., J. MIRAS, and R. RODRÍGUEZ-OCAÑA (eds.) and E. CAPARROS (gen ed. of English translation), Exegetical Commentary on the Code of Canon Law ii GENERAL INTRODUCTION The vow of obedience, as one of the evangelical counsels, is a hallmark of religious life in general and religious institutes in particular.1 Despite their vowed state, however, members of religious institutes remain members of the general body of the Christian faithful and, as such, can “legitimately vindicate the rights which they possess in the Church in the competent ecclesiastical forum according to the prescripts of the law applied with equity” (c.221 §1). Indeed, canon law has much to say about the relationship between superior and subject in an ecclesial context and the way in which power is to be exercised. It follows that, although members of religious institutes are parties to hierarchical relationships, acts of superiors cannot be arbitrary but must respect rights on the part of their subjects which are recognised and governed by law. One area where issues of administrative justice may arise has undoubtedly been much in the public mind of late. This is in relation to administrative penalties or other disciplinary measures, the ongoing revelations of sexual abuse within the Church and the rights which victims, accused and religious institutes have vis a vis each other. Like an iceberg, though, much administrative decision making passes unseen beneath this very public sphere, especially where it is not explicitly penal or disciplinary in character. While not matters of punishment or discipline per se, acts such as admitting a novice, allowing him or her subsequently to proceed to vows, moving a religious from one house to another, advancing him or her through the stages of formation, applying a member to a specific apostolate or exclaustration (among many others) just as surely involve administrative actions and concomitant rights and may have significant impacts on individuals. 1 Codex iuris canonici, auctoritate Ioannis Pauli PP. II promulgatus, fontium annotatione et indice analytico- alphabetico auctus, Libreria editrice Vaticana, 1989, English translation Code of Canon Law: Latin-English Edition, New English Translation, prepared under the auspices of the CANON LAW SOCIETY OF AMERICA, Washington, DC, Canon Law Society of America, 1999, canons 573 §1 and 607 §2. All references to the canons of the 1983 Code (save those beginning a footnote) will be styled “c.” for canon and “cc.” for canons, followed by the canon number(s)); Codex canonum Ecclesiarum orientalium, auctoritate Ioannis Pauli PP.II promulgatus, fontium annotatione auctus, Libreria editrice Vaticana, 1995, English translation Code of Canons of the Eastern Churches: Latin-English Edition, New English Translation, prepared under the auspices of the CANON LAW SOCIETY OF AMERICA, Washington, DC, Canon Law Society of America, 2001, canon 410. All references to the canons of the 1990 Code will be styled “CCEO, c.” for canon and “CCEO, cc.” for canons, followed by the canon number(s). 1 2 To date there have been few, if any, studies considering the right to administrative justice in general to religious institutes (although there are several discussions relating to particular areas, especially penal law). Superiors have therefore had relatively little guidance on the proper bases of, and formal requirements for, administrative action in the context of a religious institute and the avenues for redress open to a member who feels him or herself to be wronged by a superior’s act. This thesis attempts to remedy this lacuna by considering the basic principles of just administrative action in religious institutes: the nature of the authority of superiors over their subjects, the nature and classification of administrative acts, their application to action in religious institutes and the remedies available for justice denied. While I would hope that it could serve as something of a vade mecum for superiors, given its length, it will (of necessity) be an outline only. It will proceed in three chapters. Chapter 1 considers the nature and classification of administrative acts in canon law, the executive authority of superiors in religious institutes and the provisions of the law safeguarding fair procedures including the content of subjects’ general rights to administrative justice. Chapter 2 uses these conclusions to attempt to formulate general principles for just administrative action. It then considers exclusions of members from permanent final vows and reassignment within the institutes as paradigmatic applications of these principles. Chapter 3 briefly considers the remedies available to persons who consider themselves aggrieved by a religious superior’s administrative act and finally offers suggestions as to areas for future studies which might arise from this thesis. While my focus will mostly be the Latin Church, I will note features of Eastern canon law and practice where these are significantly different. CHAPTER 1 – ADMINISTRATIVE ACTS AND RIGHTS IN GENERAL This chapter aims to chart the scope of administrative action relevant to religious institutes. It begins by considering the nature and classification of administrative acts and then considers the nature of executive authority which religious superiors possess. Finally, it discusses the major legal constraints on superiors’ administrative action, focusing on general obligations of a superior and rights of the subject in relation to the placing of an act. Specific rights to challenge an administrative act once it has been placed will be dealt with in Chapter 3. 1.1 Classification of Administrative Acts While the actions of superiors generally fall into one category or another of administrative act (considered below), such acts are not placed in a vacuum. For legality, and occasionally for validity, they may require preliminary steps to be taken by the authority in order to safeguard the rights of those affected or to ensure that the act is appropriate. John Huels therefore uses the term “administrative activity” to cover both administrative acts themselves and the enquiries or other actions which precede and surround them.2 This term is attractive as it includes and subsumes the general process-oriented norms in cc. 50 and 51 which William Daniel describes as “the general administrative procedure”.3 Vital though this procedure is, there are many other safeguards on the justice of administrative action, including, for instance, the warning or consultation of affected parties, seeking advice from consultative bodies or enquiries as to whether an act is appropriate.4 This thesis will consider general and specific rules governing administrative activity surrounding an act when it discusses legal constraints on superiors and rules relating to particular actions. Administrative acts themselves may be described as juridic acts placed unilaterally by virtue of the executive power of governance, in nomine Ecclesiae (in the Church’s name) and on behalf of a public juridic person.5 They may sometimes be similar in form to laws, but their hallmark is their subordinate, 2 J.M. HUELS, “Administrative Acts and Activity in Canon Law,” in The Canonist, 6 (2015), 65. 3 W.L. DANIEL, The Art of Good Governance: A Guide to the Administrative Procedure for Just Decision-Making in the Catholic Church, Gratianus Collection, Montréal, Wilson & Lafleur Limitée, 2015, 101-131. 4 E.g., cc. 50, 127, 645 §2, 689 §1, 970, 1222; HUELS, “Administrative Acts and Activity in Canon Law,” 70-78. 5 HUELS, “Administrative Acts and Activity in Canon Law,” 66; DANIEL, The Art of Good Governance, 27. 3 4 accessory nature.6 In particular, while administrative acts bind those to whom they are directed, they are not only