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Speculum Iustitiae?

March 13, 2019

As certain agencies report the conviction and sentence of Cardinal Pell to a term of 6 years imprisonment, others feature the decision of Archbishop Lori of Baltimore to 'suspend' two retired Bishops. The latter report indicates the decision was made by Archbishop Lori in his capacity as Apostolic Administrator of the Diocese of Wheeling-Charleston. It goes on to refer to sexual misconduct and alludes to financial irregularities in which the Bishops (or one of them- it is not clear) are implicated. Whilst making no attempt to distinguish between them, it appears that one of the bishops concerned is also implicated in a failure to respond to allegations of abuse made against others.  Nonetheless, the announcement is said to be the product of an evaluation on the part of a panel of lay assessors, one of whom is reported to be non-catholic. It is only some considerable way into the report that one reads that the decision has been made pending assessment by the Holy See. 

It may be thought that this latest news item (like the imprisonment of Cardinal Pell) is a further metaphorical nail in the coffin containing the credibility of the Church and its leadership. However, the news of Cardinal Pell's fate has been received as merely evidence of the culmination of a campaign to secure his unjust conviction. Whatever one's viewpoint, there can be no mistaking the fact that revelations of this kind, and the news coverage which accompanies them, are corrosive.  They not only undermine the credibility of the Church, but also cause the lay faithful to call into question, their own faith and their ability to continue to subscribe to an organisation which, according to media reports, is more concerned with its temporal position than spiritual mission.  

In seeking to address this situation, it is vital that the Church (and its leaders) do not substitute one form of injustice for another. The Code of Canon Law contains clear provisions for the conduct of preliminary investigations and, indeed, the duty to protect the reputations of those who may otherwise be harmed by the investigation itself. The jurisprudence upon which these canonical norms are founded is detailed and long-established. It reflects a number of core realities. First, the investigation does not stand in lieu of a trial. Second, the purpose of the investigation is to determine whether there is an allegation to answer (i.e. one which enjoys the semblance of truth). Third, at the time of the preliminary investigation, it will invariably be the case that there is no libellus. In simple terms: there may be accusations, but they have at that time, yet to undergo the scrutiny of the promoter of justice and formulation as allegations.  Fourth, the Church is precluded from conducting a preliminary investigation unless and until the civil authorities have themselves confirmed there are no proceedings to be brought against the person who is implicated or potentially implicated in the misconduct in question. How might these realities inform our response to reports of investigations? 

In Alice in Wonderland, the rather inappropriately termed "Queen of Hearts" was won't to demand "Off with their heads"; undeterred by the absence of any form of due process, still less the principle that one should not be a judge in one's own cause (nemo iudex in causa sua). The same character also achieved infamy for her willingness to sentence in advance of determining culpability.   In our own times, one would hope some distance away from fiction, it is possible to discern similar aspirations on the part of some within the Church. Whether these influences are the product of a deep-seated desire for political self-preservation, misplaced notions of transparency, or, a zeal for expedited solutions, matters not.

For many, the effect is the same, namely:  the denial of justice. Where such practices are cultivated, the suspect is reduced to the status of the 'guilty in waiting'. The presumption of innocence which the law confers upon him is disregarded. So too is his right to be tried in accordance with the norm of law.  Within any secular organisation, practices which imperil the presumption of innocence and disregard due process, would rightly become the subject of adverse scrutiny and criticism. What then of the Church?  


The Venerable Fulton Sheen once famously remarked that the 'righteous' are simply. those who have yet to be found out. Remarking upon the account of the woman caught in adultery, he also observed that Jesus' response was not to disregard  the demands of the law; rather, to point to the need for a different jury. 

 

The increased preparedness to issue public statements in advance of any judicial process might be thought to overlook the need for a duly appointed and competent adjudication panel. One consequence of this practice is that the fate of the accused is determined from that point. Even leaving out of account the potential affect such reports may have upon the conduct of any subsequent judicial process, the fate of the accused is, for practical purposes, sealed. Whether the resultant state of affairs is considered redolent of Wonderland, or, Salem, it is difficult to reconcile with a system of law which has made detailed provision for the testing, scrutiny and determination of allegations of misconduct.  

 


In engaging with the desirability of such practices, we would do well to reflect upon the words attributed to St Thomas More and directed to his son Roper:

 

"And when the last law was down and the Devil turned round on you - where would you hide, Roper, the laws all being flat?"   

 

The Code of Canon Law has repeatedly been referred to as the last document of the Council. It is the articulation of truths which are intended to preserve the values to which the Church subscribes and provide an environment for their fulfilment and realisation. These same normative principles are intended to equip the Church with the means by which to serve as the mirror of justice; a role which cannot and should not be obscured by a desire to simply reflect the zeitgeist. 

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