Recently I posted my take on the SSPX appeal to the Holy See against the declaration of their excommunication for schismatic ordinations of bishops. I shared this with a canonist friend of mine, Mr Paul Shogren, who is an independent canonist, for his comment. Among his response was this take on a couple of my ideas. His reply is in red:
3. Appeal Against Sentence I think it better to use 'Recourse' as this is not an appeal against a judicial sentence.
Since the Holy Father indicated, prior to the ordinations, that they would violate the law and trigger automatic excommunication I wonder if, in fact, an appeal is possible or at least advisable? This is not a standard appeal against a decision of an ecclesial authority. The declaration has been made by the Holy See itself. SSPX refer to canon 1353 regarding the suspensive effect that occurs when an appeal is made. However, canon 333 paragraph 3 states: "No appeal or recourse is permitted against a sentence or decree of the Roman Pontiff." The declaration of the penalty was issued by the Dicastery for the Doctrine of the Faith acting on behalf of the Supreme Pontiff and with his permission. This situation would be clearer if the pope had signed the document in forma specifica which would have eliminated any ambiguity. He could also have handed down the sentence in forma Motu Proprio (on his own initiative). In any event, I struggle to see what an appeal would achieve. It can hardly argue the facts of the case and the penalty is automatic. Any appeal is therefore looking to challenge the Law itself as well as the authority of the Legislator to interpret the law as to what constitutes the delict of schism.
For what it's worth, I think the individuals concerned (recalling that the SSPX lacks juridic status) have a reasonable ground for recourse in as much as the declaration of the excommunication seemingly took place without any form of administrative penal process. I note that the DDF, when it declared the excommunication of Archbishop Vigano for schism, undertook an administrative penal process. Of course, one could reply that the DDF would only have foregone the administrative penal process if it had a solid canonical reason e.g. when they consulted the pope about the matter he dispensed the relevant procedural law (being a 'grave and extraordinary matter' the Prefect was bound to do present it to him under art. 31§1 Praedicate evangelium).
Perhaps the DDF are playing strategically here and enticing the SSPX bishops to undertake recourse so there can be some very solid juridic examination, and the SSPX will be forced to explicitly show whether they submit to the jurisdiction of the Pope and the Roman authorities during this recourse and what emerges from it; they will get what they asked for, to have the Pope personally examine their claims, but not on the terms they wanted. Leo says, "Yes I will consider your case, but like everyone else, according to the law, not just because you want to see me." Quite a brilliant strategy if my conjecture is correct.
4. The Office of Pope
If the appeal is against the Code and therefore Vatican II it is not only tilting against the authority of the Successor of Peter but the College of Bishops as a whole. SSPX seem to think that the Pope can act as an autocrat. If they had read the law under which they are appealing they would see canon 330 "Just as by the Lord's decision Saint Peter and the other Apostles constitute one college, so in a like manner the Roman Pontiff, the Successor of Peter, and the other bishops, the successors of the Apostles, are united among themselves." SSPX would be mistaken to think that the Pope would act in an arbitrary or unilateral way to undermine the penal law of the Church and the integrity of not only the 1983 Code but the recent legislation of Pope Benedict XVI regarding graviora delicta (more serious crimes) In short, I fear that SSPX will simply be digging themselves deeper into the hole that they have created by continuing to appeal this excommunication.
Art. 9 of the SST norms state that the DDF is the Supreme Tribunal for all graviora delicta (this is an exception to it being the Rota for judicial penal trials and the Signatura in the case of an administrative penal process), so the SSPX bishops will have their recourse decided by the same dicastery that declared the excommunications. The only recourse after the DDF for these graviora delicta is the Pope.
I publish this because it gives readers of this blog an idea of how nuanced and complex canonical matters, especially those related to penal law, can be. Even though I am qualified in Canon Law my primary role is to act as Vicar General and as a Parish Priest. I am not suitably up to date with pontifical legislation. The situation can be complex, for example, there are judicial trials and administrative trials which have a separate character. Furthermore, it is not only the Code of Canon Law to be considered but also particular law when it comes to the jurisdiction and obligations of various dicasteries. Lastly, any priest, religious or lay person looking to defend or assert their rights within the Church needs to obtain professional advice rather than interpret the law by themselves. This, of course, costs money but if the issue at stake is important, given that the civil law processes take place on paper, it is crucial that you get the right advice from the outset, so you are not embarrassed as the proceedings or case comes before the appropriate authority.
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