Who Is He to Judge? Pope Now Directly Intervening in Canonical Cases

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by Christine Niles, M.St. (Oxon.), J.D.  •  ChurchMilitant.com  •  January 30, 2018   

"His actions essentially deprive all parties of due process"

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VATICAN CITY (ChurchMilitant.com) - Pope Francis is now directly intervening in canonical cases in various Vatican dicasteries in what some canonists are calling an unprecedented overreach of authority.

On December 12, Vatican insider Kurt Martens, Professor of Canon Law at Catholic University of America, posted on his Twitter account an excerpt of a canonical decree written in Latin revealing that the Holy Father had directly intervened on behalf of the head of the Congregation for Clergy in a canonical case pending before that Dicastery. When the case was appealed to the Supreme Tribunal of the Apostolic Signatura (essentially the Vatican Supreme Court), the prefect of the Congregation for Clergy had personally asked Pope Francis to intervene.

The Latin statement reads (translated):

While the summarium [evidence file] was being assembled, the Most Eminent Prefect of the Congregation for Clergy went to the Supreme Pontiff, who on the 14th day of November 2017, made the impugned decree his own by affixing his signature [onto it]. (Cf. Letter given to this Sacred Tribunal on 14th day of November 2017 under protocol no. 2017 4371).

The ruling is final and cannot be appealed.

By affixing his own signature to the decree of the Congregation for the Clergy that was being challenged before the Supreme Tribunal of the Apostolic Signatura, the pope bypassed directly all of the judges hearing the case in the Church's supreme administrative court. The pope's action of personally affixing his signature to the ruling being challenged practically constituted papal approval in forma specifica ("in specific form"), meaning it carries the weight of a formal papal act.  The decree being appealed became ipso facto the pope's own decree. And by doing so, according to canon 1629, no. 1 of the Code of Canon Law, no further appeal could be heard by the Apostolic Signatura.

According to A Latin Theological Dictionary

The expression in forma specifica indicates that the pope has reviewed the document [or ruling] and makes it his own by express approbation, and thus the document [or ruling] aquires the canonical force of a formal papal act (cf. CIC Canons 1404 and 1405, §2).

According to a canonist with experience in the Vatican, such an intervention is practically unheard of in modern history. Although the pope is the Supreme Legislator and has power to do as he wills, "such a thing is just not done," he told Church Militant.

This is because it "undermines the authority and position" of the supreme tribunal tasked with judging complex legal cases that can take months, if not years, involving huge case files and laws that only formally trained canon lawyers are competent to adjudicate.

"The pope is not a canonist," he told Church Militant, "and his actions essentially deprive all parties of due process by pulling the rug from under all of the Signatura's judges deciding the case.  And we're talking here about expert canonists who are cardinals, archbishops and bishops — not just amateurs."

As a rough analogy, the canonist said, "Imagine a lawsuit over a wiretap order issued by the head of the FBI that the wiretapped individual was challenging before the U.S. Supreme Court. It would be similar to the Director of the FBI running and complaining to President Trump and asking him to inject himself into the court case on his behalf by making the wiretap order his own order."

"If Trump — with no formal legal training — were to do that, this would be a breathtaking violation of his authority," he remarked.

Because the Constitution forbids such violation of the separation of powers, such a scenario could never take place. But there is no such separation of powers in the Vatican, and until now, there was largely for centuries great respect and deference given to the independence of Vatican tribunals and their cardinal-judges tasked with deciding final appeals, and staffed with officials and specialists trained over years in how to serve the needs of justice.

"Apart from throwing the wheels of due process off the tracks," the canonist told Church Militant, "such an action on the part of the pope is most disrespectful of the cardinal- and bishop-judges of the Supreme Tribunal of the Apostolic Signatura."

He added, "The pope never even consulted with the Signatura's judges on a case they were given power by the pope himself to decide."

Watch the panel discuss worrying trends under this pontificate in The Download—Seeking Clarity.


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