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Fr. Waters’ ‘Reflections’, whether right, wrong, or somewhere in between, are reasonable

February 8, 2012

Melbourne Archbishop Denis Hart has published a brief statement asserting that Fr. Ian Waters, JCD, is being misrepresented by the secular media (and by some others?) as highly critical of the pope’s actions in the Bp. Morris case. Having read, now, Fr. Waters’ “Reflections”, I think Hart’s corrective regarding Waters, if I understand him, is right.

In my opinion, Waters’ canonical reflections fall within the bounds of Canon 212 § 3. I agree with some of his remarks, I am unpersuaded by several others, and I disagree with some. But that is hardly cause for alarm; lawyers are like that. Still, in general, it seems—and with Abp. Hart I think—my impression is that there is rather less in Waters’ remarks than meets the eye, by which I mean, supporters of Bp. Morris seem to be taking Waters to be saying considerably more (to their liking) than in fact he actually says.

For example, Waters writes “many canonists would certainly have questioned whether a bishop in such a situation [as Morris] would be capable of the personal freedom necessary to make an informed decision.” That phrasing might comfort Morris’ supporters, but they should know (and I suspect that Waters would agree) that many canonists would reply that other men making important life decisions under circumstances similar to those faced by Bp. Morris are certainly canonically and naturally sufficiently free to make those decisions.

Or again, Waters writes “If the process for removing a parish priest were adapted for the case of Bishop Morris, it would involve [following several objectively determinable steps].” That is quite true. But of course, the dynamic between bishops and pope is, from a half dozen points of view, not comparable to the dynamic between pastors and bishop, and papal-episcopal relations are not susceptible to being neatly circumscribed by a check-list of sequential steps. Similarly, I think Waters’ suggested appeal to Canon 19 is reasonable, even if it eventually proves bootless, as I think it would, because the very rarity of papal interventions in cases like this one leaves the Roman Curia without a substantial praxis to draw upon for guidance.

I agree with Waters that nothing in the public record of this case suggests that it was a penal deprivation matter (cc. 196, 419), but, if this had been a penal case, that would not have implied, pace Waters, that Morris’ “good name [could] not be called into question”. One has the right not have one’s good name not called into question only during the preliminary penal investigation (c. 1717 § 2) and more generally, to be free only of illegitimate harm to one’s reputation (c. 220). If one’s name suffers legitimately during a case, so be it.

As for the Waters’ interesting discussion of prior cases of Australian bishops apparently removed by Rome, I have not the background to determine their relevance to the Morris situation, but I would note that none of cases occurred under the 1983 Code, only one occurred under Pio-Benedictine law, and three occurred under late Decretal law. Analogies can be drawn from them, therefore, but with considerable caution.

In the end, Waters concurs with [Judge] Carter’s conclusion that “Bishop Morris was denied procedural fairness and natural justice.” Notice, first, what this statement does not say: it does not say that Morris should have been left in office; it does not say that, had Morris been canonically prosecuted, he would have been vindicated; it does not say that popes have no authority to remove bishops from office except upon conviction of ecclesiastical crimes. My impression is that Morris supporters have assumed all three points to be Waters’ position.

Instead, Waters only says, I suggest, that, assuming the accuracy of the narration provided by Judge Carter,* in Waters’ canonical opinion, Morris was “denied procedural fairness and natural justice.”** Time will tell, of course, but given that the removal of bishops from office (and I repeat that I am not convinced that happened here), outside of the parameters established in Canon 416, is so unusual, one should hardly expect immediate agreement among canonists as to manner and results of individual cases. + + +

* Time permitting, I’ll try to read through Judge Carter’s ‘canonical’ critique but, having read more than my share of attempts by common lawyers to parse canon law over the years, it’s not at the top of my to-do list. Sorry, it just isn’t.

** Might one suggest that the greatest injustice done to Morris was treating him with such excessive, and perhaps misleading, deference for ten-plus years when what all sides really deserved was a direct confrontation on the facts and a prompt resolution of this neuralgic case?

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