Dismissal of a religious is a serious matter. This article explains how carefully Canon Law proceeds in this matter, respecting the facts of the case and the rights of the accused person.
Sr Esther, a finally professed religious sister, was dismissed by her superiors. She appealed to the Holy See, Rome. The Holy See did not confirm the dismissal and Sr Esther continues to be a member in that congregation. How is that possible?
Procedure to be followed:
To be effective, a decree of dismissal has to be confirmed by the competent ecclesiastical authorities, to which the institute is subject. Which authorities? To the Apostolic See, for an Institute of Consecrated Life and Societies of Apostolic Life of the Pontifical right, to the Patriarch, for an institute of Patriarchal right, and to the Diocesan Bishop, for an institute of diocesan right. Therefore, the superior general is to send the decree of dismissal and all the documents to the competent authority. After a careful examination, if the competent authority is satisfied with the merits of the case, the decree is confirmed and it becomes effective. Only after such a confirmation can the superior general formally communicate the decision to the religious concerned. This has to be done by a certified letter or communicated to the person before two witnesses. In making this notification, attention must be drawn to the part of the decree indicating the right of the person dismissed to have recourse within ten days of receiving the notification of the decree. If the religious decides to lodge recourse with the competent authority that confirmed the decree of dismissal, the effects of the decree stand suspended. (CIC c. 700; CCEO cc. 500§4, 501§2§3, 552§3; 553§3).
After the recourse, if the decree of dismissal is upheld, the religious can have a final recourse to the Apostolic Signatura. But it will concern only the validity of the process; the merit of the case will not be reopened. Let us, now, have a look at the procedure for the Obligatory Dismissal and Facultative/Discretionary Dismissal (for the meaning of these terms kindly see the previous article):
Procedure in Cases of Obligatory Dismissal (CIC c. 695§2)
(i) The major superior, either personally or through a delegate, must gather all the available evidence pertaining to the fact and imputability of the alleged offence. (ii) The allegation and the evidence gathered are to be communicated to the religious who is accused. This is to be done either in writing or verbally in the presence of two witnesses. (iii) The religious is to be invited to respond formally after studying the accusations and the evidence. This must be done in writing or, if made orally and transcribed, it must be signed by the religious. (iv) After receiving the response of the accused or in the absence of any response even after an appropriate period of time, all the documentation is to be sent to the superior general.
Procedure in the cases of Facultative/Discretionary Dismissal (CIC cc. 697, 1º, 2º, 3º; 698; 699§1§2; CCEO cc. 500; 551; 553)
- Phase 1: The major superior is obliged to consult the council before initiating any proceedings for dismissal. Here the provincial (or the superior general, in case the institute is not divided into provinces) should meet with the council members and inform them that he/she wishes to begin the dismissal of a member of the institute. In this case, taking the counsel is necessary. Although not bound to accept this advice, the major superior can go against it if he/she has an ‘overriding reason’ (CIC cc. 1272, 2º; CCEO c. 934§2, 2º, 3º). (ii) The major superior, either personally or through a delegate, must gather together all the information necessary to establish the facts. (iii) The major superior is to warn the member in writing; if this is done orally and transcribed, it must be signed by the major superior, two witnesses and the secretary. This canonical warning must contain the following elements: (a) a brief statement of the complaint concerning the religious; (b) a clear indication of the specific action required by way of amendment; (c) an explicit warning that dismissal will follow unless there is due amendment; (d) and an invitation to make a response. (v) If there is no improvement, and no written response is made, another warning is to be issued after fifteen days. (vi) If the second warning also is ineffective, the major superior must meet with the council, within fifteen days, to determine whether the religious has shown evidence of correction or has submitted a sufficient defence. (vii) Here the superior has to act in accordance with the consent of the council. (viii) If the decision is to dismiss the member, all the acts of the case are to be sent to the superior general. These acts consist of: (a) the evidence collected by the major superior; (b) the warnings issued in accordance with the law; (c) and written replies, if any, from the religious concerned. (ix) The documents must be signed by the major superior and the secretary. It is important to keep the minutes of the meetings held for consultation and consent as these are to be sent along with the petition to the superior general.
- Phase 2 (CIC c. 6991): (i) After receiving all the necessary information and the required documents concerning the case, the superior general is to meet collegially with the council. For validity, this council must consist of at least four members. (ii) The council is to examine all the documents weighing up the evidences, arguments and replies of the accused and determine whether the religious in question is to be dismissed or not, and eventually vote on the dismissal.(iii) The decision is to be made by the superior general and the council in a collegial voting by secret ballot. Unlike in consent, the superior general also votes along with the councillors. All have equal voice in deciding the matter. (iv) If there is an absolute majority vote in favour of dismissal, the superior general is to draw up the decree of dismissal. It must contain an outline of the reasons for dismissal, in law and in fact. It must also indicate the right of the religious to have recourse and the effect of that recourse.
- Final Phase (CIC c. 700)
The final phase of the dismissal process comprises two stages: confirmation and notification. We have dealt with it in detail in the beginning of this article.
In the case quoted at the beginning of this article, the competent authority has not confirmed the decree of dismissal. This has invalidated the decree itself. Hence Sr Esther continues to stay in the institute. Or it could be that the effects of the decree are suspended until further communication from Holy See.
To read the entire article, click Subscribe
