Why is the Commission Decree invalid?22 minutos para ler

The visit that D. Raymundo Damasceno Assis and D. José Aparecido Gonçalves de Almeida held to the General House of the Heralds Association of the Gospel, in order to present the Decree of presumed commissariat, on October 18, took place in a climate of profound transparency and sincerity, as foundations of ecclesial communion.

On that occasion, the President General of the Heralds of the Gospel, Mr. Felipe Lecaros Concha, with the members of his Council, and some advisors, including a canonist, showed the absolute invalidity of such decree in relation to the International Private Association of Herald faithful of the Gospel due to fundamental errors contained therein , which generate serious canonical illegalities and cause their disability or nullity.

The Heralds' Decree of Commissioner contains fundamental errors that cause their disability, or nullity

The soundness of the arguments put forward by the President-General was recognised by D. Damasceno and D. Aparecido, as stated in the Minutes of that meeting. Indeed, having manifested, at the beginning of the meeting, that they would communicate the Decree to all the bishops of the dioceses where the Heralds act, at the end they declared that they would not communicate this Decree to any bishop, due to the consistency of the arguments of disability presented.

But it is advisable to explain simply and clearly, not to experts in Canon law, the main reason for the nullity of the Decree, its illegality and the injustice it represents, as well as the attack on the good reputation of the Heralds of the Gospel in the world the havee-toe dissemination of such decree directly in the Vatican Press Room on 28 September, prior to its notification and presentation to the interested parties, which was in charge of the appointed Commissioner, who carried out the reading the decree in the respective meetings held with the Councils of affected institutions, on 16 and 17 October. Incomprehensible attitude of the Holy See, or of the Congregation, or of the Roman Curia.

However, as among readers some will want to know which ecclesiastical laws have been violated in each case, are made following summary references to them.

Legality in the States of Law and in the Church

The Laws of the Church are compendiated, not exhaustively, in the Code of Canon Law. The current in force was promulgated by St. John Paul II in 1983, having undergone slight adaptations by both Benedict XVI and Francis.

The need for precise language in order to avoid illegalities and injustices

In every rule of law laws, legal norms, decrees, judicial judgments and all that has to do with the preservation of justice should use precise language in order to avoid confusion and… Injustices!

Similarly, proper medical language makes prescriptions not harmful to patients. Thus, an orthopedist, for example, will never determine to his assistant to "fix the broken bone", but will write "immobilize the right forearm by distal radius fracture", in order to avoid unwanted consequences. Not everyone should know what a "distal fracture" is, but the health operator, yes. What about the "justice operators of the Church"?

The Church is infinitely more than a rule of law based on human agreements. Instituted by Our Lord Jesus Christ, from its origins, it has laws and norms that regulate the behavior and relationship between the faithful, and these with the ecclesiastical hierarchy, establishing the possible interventions of the ecclesiastical authorities when discordant attitudes of the Doctrine or Morals taught by Our Lord Jesus Christ appear, and transmitted by the Apostles. Let us remember some of these teachings:

  • "What God united does not separate man" (Mt 19:6).
  • "Let Caesar what is Caesar's, and to God what is of God" (Mt 22:21).
  • "The libertines, idolaters, adulterers, effeminates, sodomites, thieves, greedy, drinkers, evils, swindlers, no one of these will be part of the kingdom of God" (1 Cor 6:9-10).
  • "Himeneu and Alexander, give them to Satan, so that they may learn not to blaspheme" (1 Cor 2:20).
  • "Damn be your money and so do you, if you think you can buy God's gift with money!" replied St Peter the Mage Simon (Acts 8:20).

These are examples of normative that the Church maintains, by the teaching of her Divine Founder, and from which no church regulations can abdicate without but being herself.

In another article will be analyzed the illegality and injustice of the Decree and the attack on the good fame of the Heralds that represented its dissemination in the Vatican Press Room.

Let's take a look at some of the "invalidating errors" of the Decree under review.

Invalidating material error: tries to "commend" a non-existent association

First, the President of the Heralds of the Gospel, Mr. Felipe Lecaros Concha, noted that the Decree aims to "commend" a "Heralds international public Association of the Gospel". However, this entity does not exist, neither in the Catholic Church nor in civil society.

The Decree addresses an association that does not exist: the Heralds are not a "public association", but "private"

The Heralds of the Gospel are an "International Private Association of The Faithful". Thus, there is a fundamental error that legally prevents the receipt of such a document.

The President of the Heralds of the Gospel exemplified: it is as if a bailiff appeared at the residence of an "Antonio da Silva" with a notification to "Pedro Rodrigues". Mr. Antonio should not receive such judicial notification, as there was an error of invalidperson.

The fundamental difference, "genetics", we can say, between a "public association" and a "private association", in Church legislation, is explained in canons 116, 299 and 301 of the Code of Canon Law.

A non-existent "institution known as heralds of the Gospel"

In the Decree under analysis, the "Institution known as heralds of the Gospel" is intended to "commend"; and it adds, in a total ignorance of the reality that is presumed "commissariat": "from which the public international Association of faithful of pontifical right Heralds of the Gospel, the Society of clerical apostolic life Virgo Flos Carmeli and the Society of female apostolic life Regina Virginum".

We have pointed out above that there is no "public international association" in the Catholic Church with this name.

Let's see now:

  • the total legal inaccuracy of the term "institution";
  • the "problematic situation" of terminological ignorance of the author of the Decree, in the use of the expression "known as";
  • the "lack" of juridicity by saying "they are part of it".

Invalidated material error: "the institution… Heralds of the Gospel"

Affirming that the Decree has as its scope an "institution known as heralds of the Gospel", manifests the problematic limitations and lacks of legal knowledge on the part of those who drafted the Decree.

The legal technical meaning of the word "institution" is non-existent in Church legislation.

If we stick to the Code of Canon Law, in the Portuguese version of Brazil, we find the term four times (can. 257, 384, 397, 793). But in the Church the official language, for the laws is Latin. We need to see what the "Code" says in its Latin original in these four canons.

On three of these occasions the Latin word employed is "institutum, i" (cc. 257, 397, 793), which should be translated more accurately by "institute", that is, according to the dictionary Aurelio, "legal entity established and regulated by an organic set of standards of positive law".

In the can. 384 the Latin term employed is "institutio, -onis" of different meaning. This is something really not legal, but sociological, of groups with or without legal personality that, in this case, the bishop must care exist in the diocese to feed the spiritual and intellectual life of priests. Everything indicates that there is in this canon a desired legal inaccuracy, because the permanent formation of the soul and intellect of priests is not assisted, in many cases, by legal structures, but by more or less informal groups. However, the "informal groups" institutiones are not the object, nor can they be, nor legal regulation, nor, therefore, of commissariat. The Latin term "institutio, -onis" is employed in this same direction in the can. 777 1st, as well as in other senses of the term profusely (formation, teaches, instituted by, etc.).

A "family of souls" or a "religious family" or any other sociological expression that may correspond to the Latin "institutio", can serve to designate a set of baptisms that, following in the footsteps of the exemplary life of a Founder raised by God, seek, through various paths (family life, consecrated life, priestly life…), to attain the holiness desired by Our Lord Jesus Christ: "Be perfect as your heavenly Father is perfect" (Mt 5:48), and remembered by St Peter: "As is holy he who called, too, to become saints, you too, in all your proceedings" (1 Pt 1:15-16).

From Mons' founding charisma. John Scognamiglio Clá Dias appeared three legal institutes (three instituta would be said in Latin) in the Catholic Church: the private Heralds Association of the Gospel, the clerical Society Virgo Flos Carmeli and the Regina Virginum Women's Society. Each with "positive rules of law" that clearly distinguish them. However, this foundational charism is not circumscribed to these three institutes, as it covers many other existing institutions without ecclesiastical legal personality.

The total absence of legal personality of a "family of souls" or "religious family" has already been explained in another article. Therefore of an "institutio"; something other than an institutum, which in certain cases may be the subject of a commissariat.

Therefore, the inaccurate employment of "institution… Heralds of the Gospel" makes this Decree invalid, evidencing the legal deficiencies and the problematic situation of its writer.

Invalidating material error: "Institution known as…"

Referring to an "International Private Association of Faithful" with the expression "institution known as" manifests a lack of knowledge of the reality that is abusively intended to "commisariar".

In Portuguese the expression "institution known as" is used for a group of uncertain contours, but that enjoys a certain projection in some environments, albeit lacking in "legal personality".

For example, if someone wrote "the institution known as PCC, First Command of the Capital" to refer to a criminal organization active in the city of São Paulo, they would be using clear terminology. But it would be absolutely inappropriate to say "the institution known as CPC, Capital Policing Command", because this is a public body of the Military Police of the State of São Paulo absolutely transparent in its composition and autonomy of government.

Improper use of the expression "known as" indicates that it is referring to a non-legal group, perhaps a "family of souls"; and shows another reason for the invalidity of the Decree, because it is wanting to take as an object something impossible to be "commissariat". Another regrettable lack in the drafting of the Decree, which makes it invalid by material error.

Invalidated material error: "… of it are part…"

If the expression "institution known as" wants to refer (by a crass error of writing) to the "International Private Association of Herald faithful of the Gospel", it is not "part" of any of the two "Societies of Apostolic Life" referred to (Virgo Flos Carmeli and Regina Virginum).

Let us explain: it cannot be said that a rose and lily "are part" of an alabaster vase in which they were placed to ornate an image of Our Lady. A flower is different from the other flower, and none of them are confused with the stone, which we imagine artistically carved. These are three different material realities, although when looking at a babbling child it may seem to constitute a single object. Ignorance of the childish mentality… not legally formed. Perhaps deficiencies or problematic intellectal situations…

If the expression "institution known as" tries to refer to the "family of souls" born of Mons' founding charism. John, who has developed in "autonomous and independent legal legal forms legally", the Decree, as pointed out above, tries to "commissariar" something "incommissiable": a sociological-religious reality.

The document of presumed commissioner presents itself as a "Criminal Decree"

In the legal system of the Catholic Church, decrees are one of the elements available to rulers to apply the "supreme law of the Church: the salvation of souls" (can. 1752). They are regulated, in their generalities, by canons 48-58, and in their details, according to the genre of Decree, in other parts of the Code, to which we will then refer.

Criminal decrees are subject to procedural rules that have not been complied with

A Decree can have several purposes (can. 48) and it is important to consider it to be an instrument used, on certain occasions, "to make a decision". In this regard sanz comments that such a decision may aim, among other objectives, to "end a controversy, impose a penalty administratively" (SANZ, MARIANO, Comentario al Libro I del CIC, in J. L. ACEBAL, Canonical Derecho Code – edición bilingüe commented , Madrid, 2001, 17-119).

It applies to the Decree under analysis, because it intends to "impose a penalty administratively".

What is a "pity", in legal-canonical language? What is "imposing a sentence administratively" according to the Laws of the Church?

What is a "pity" in legal-canonical language

The can. 1312 § 2 defines the penalty as the "deprivation of a spiritual or temporal good".

Arrieta comments that "the penalty deprives of subjective rights which are part of the legal assets of which the recipient is[da pena] the holder" (ARRIETA, Juan Ignacio, et alii. Codice di Diritto Canonico and leggi complementari, Rome, Coletti a San Pietro, 2004).

A legally hired parish secretary, for example, has the "subjective right" to perform his role, his "officium"; and the deprivation of that function, that is, the termination of the employment contract, will need to stick to the formalities of the law. The parish priest cannot unilaterally prohibit him from entering the secretariat or from exercising his job.

The Decree tries to prohibit the exercise of the office of President and Directors, depriving them of their subjective rights

In the present case, the Decree tries to deprive the President-General and his Council of "all the rights and duties that the universal law of the Church and the proper law of institutes attribute", delegating such rights and duties to the appointed Commissioners.

The deprivation of the subjective rights of the President and the Council to hold their positions (their "offices", in canonical legal language) is considered by the can. 1336 § 1 3, as one of the clearly typified "atoning sentences". Such a "penalty" consists of the "prohibition of exercising" "a power, office, burden, law".

The Decree of presumed commissioner aims to prohibit the exercise of the offices of The President-General and his Council.

The Decree of presumed commissioner must be classified as a "Criminal Decree"

That a Decree of Commissioner should be considered a Criminal Decree can be seen, for example, in aznar gil's comments (professor, among other titles, of Criminal Law, at the University of Salamanca) to several documents relating to the commissioner held at União Lumen Dei (Anotaciones sobre el nombramiento de un Comisario pontificio, in REDC, 167 (2009) 721-739). Aznar stresses that in the case of Lumen Dei, an "administrative criminal procedure was opened (can. 1720)", which concludes with "an atonating penalty forbidding to exercise any office" and quotes the can. 1336 § 1 3, to which we referenced as should be applied to the Decree under analysis that the card. Damasceno tried to apply.

We are therefore faced with a Criminal Decree that presents itself as a conclusion of an administrative process.

Now if, as we have seen, the commissioner is a typified "penalty" (prohibition of exercising a letter), it is interesting to consider how it was the administrative process that led to exude this Decree.

The "administrative criminal proceedings" that led to exude the Decree of presumed commissioner

The Church, in her holiness and in her desire to protect the rights of the poorest, the weakest, the most helpless, considers that no penalty should be imposed without the prior realization of a process.

This criminal proceedings may be, from a certain moment, judicial or administrative, in its development; but it always starts administratively by a "prior investigation" (can. 1717). It took place, for the Heralds of the Gospel, with the Apostolic Visit.

Indeed, the Decree of D. Braz de Aviz beginning an Apostolic Visit of 23 June 2017 presented all the elements that the can. 1717 states recommending an investigation in order to ascertain "the facts and circumstances, and imputability" (can. 1717) of any wrongdoing. It states the VisitDecree to be its purpose:

Understand the real foundation of the issues pointed out, as well as the causes that determined them, and the responsibilities attributable to each religiou[1]s.

The Visitdecree employs the concepts of the can. 1717 with other terms: "the problematic" (the canon says "the facts"), "the causes" (the canon says "the circumstances"), "the responsibilities" (the canon says "imputability").

This procedural part – the Apostolic Visit in order to determine "the facts and circumstances and on imputability", or "the problems, causes and responsibilities" – developed administratively, as is customary in the Church (see commentary of: ACEBAL, Juan Luis, Comentario al Libro VII cc 1400-1731 del CIC, in J. L. ACEBAL, Canonical Derecho Code – commented edición bilingüe, Madrid, 2001, 733-884[2]).

Both D. Damasceno and D. Aparecido declared that the Apostolic Visit was the investigation prior to the exaration of the Decree of presumed commissioner.

The normof the can was not respected. 1718

The Apostolic Visit has been completed, that is, the "prior investigation" of which the can speaks. 1717 § 1, the can. 1718 § 1 explains:

When the elements appear sufficiently collected, the Ordinary decides:

1st whether it is possible to promote process to irrogar or declare the penalty;

2nd if this is convenient, taking into account the can. 1341;

3rd if judicial proceedings are to proceed or, if the law does not prohibit, one must proceed by out-of-court decree.

Indeed, the Decree of presumed commissioner states that "the report [dos visitadores]confirmed the existence of problematic situations and serious need". That is, in the judgment of the card. Braz de Avis the "needs" and "problematic situations" seemed "sufficiently collected".

It was up to the Dicastery to decide whether to promote a judicial or administrative process, to amend the "deficiencies" and repair the supposed "problematic situations", as the items 1st and 3rd say.

None of these procedures were initiated (neither administrative nor judicial), but the Decree of presumed commissioner was simply exarated.

Failure to comply with the norms of the can. 1718 § 1 1st 3rd makes the Decree invalid.

The normof the can was not respected. 1341

The second item of the can. 1718 § 1 contains a very important observation, declaring the need to take into account the prescribed in the can. 1341, which says:

It is only decided to promote the judicial or administrative procedure to inflict or declare sentences, where it sees that neither with fraternal correction, nor with the rebuke or other means of pastoral concern, the scandal can be sufficiently repaired, restore justice and correct the defendant.

However, there was another serious infringement in the method promoted by Cardinal Braz de Avis: he did not use any "pastoral care route", neither "fraternal correction" or "rebuke" to correct the presumed "deficiencies" or "problematic situations" before exude the Decree of presumed commissioner.

Violation of the norms of the can. 1341 and the can. 1718 § 1 2 ° makes the Decree of presumed commission invalid.

Decree "unfair and invalid"

The Decree under consideration wanted to declare the penalty of "prohibition of exercising" the offices of President General and General Councillors of the Heralds Association of the Gospel, as seen.

This Decree did not respect the norms of the can. 1718, nor the pastoral care of the can. 1341.

The errors of the Decree are not only a problem of invalidity, but also of injustice

The penalty not only became invalid, but also unfair, as Anta Cabreros explains. The illustrious Claretian, professor in Salamanca, clarifies that for a pity to be fair three things are "substantial", and the absence of any of them makes the penalty "unfair and invalid" (CABREROS DE ANTA, Marcellin. Comments al Código de Derecho Canonico y Legislación Complementaria: cc 1-270, 1552-1924, 1999-2141, in L. MÍGUELES DOMINGUEZ (cur.). Code de Derecho Canónico y Legislación Complementaria: Texto latino y versión castellana, Madrid, 1976):

For the penalty to be just: a) imposed by a legitimate judge or superior; b) for a fair and reasonable cause; c) observing, in the form of imposing the penalty, canonical prescriptions. If any of these questions are missing, the penalty is unfair and invalid, for they are all substantial.

Regarding card's illegitimacy. Braz de Aviz to enact the commissioner of an International Private Association of The Faithful, has already shown its total disability. Therefore, this illegitimacy of the author of the Decree makes the penalty "unfair and invalid".

The lack of "just and reasonable cause" is one more reason to make the Decree "unfair and invalid".

The absence of observation of the "way of imposing" and the "canonical prescriptions" was patented above, configuring the third reason for the "disability and injustice" of the Decree exarado by D. Braz de Aviz.

A Decree "irritum infectumque"

The legal-canonical language of the Church has twenty centuries, over which expressions and terms have been coined that qualify a situation without many explanations, at least for those who know about technical terminology.

Considering the serious errors contained in the Decree, we conclude that this is not only illegitimate: it simply does not exist

It is considered, in the law of the Church, that a norm, a law, a decree, a legal act are "irritus" (from Latin, "absent from the rites", that is, the external forms necessary for its validity) when necessary elements are lacking for their liceity, even if, the act is valid. For example, the ordination of a bishop held without mandate of the Apostolic See: the so sacred priest has validly received the fulness of the priesthood, but having been conferred unlawfully cannot he exercise with legitimacy any function Episcopal.

However, when there are substantial errors related to the essence or substance of the act, of the norm, of the decree, it should be considered "infectus" (of latin "in" + "factus", that is non-existent).  For example, if a prelate tried to confer priestly ordination on a woman, the act would be absolutely null.

When the two circumstances of illicitude and nullity exist, the act or document is called "discretum irritum infectum".

This is the legal-canonical qualification of the Decree of presumed commissioner signed by D. Braz de Aviz, which D. Raimundo Damasceno Assis and D. José Aparecido Gonçalves de Almeida presented, on October 18, 2019, to the General President of the Association International Private of the Herald sanders of the Gospel, and their Council.

Is there an appeal against this Decree?

During the notification of the Decree, Archbishop José Aparecido raised the possibility of the Heralds bringing an appeal to the Holy Father asking for the reformulation of the Decree.

The canonist present noted that such an appeal would have felt if the Decree were merely "irritum", but, in the case of a "Decretum infectum", there is no sense of an appeal against something null and non-existent, absent from any legal value.

Finally, the appeal for the Heralds of the Gospel is safeguarded by an attack on good fame, the injustice committed and other illegalities in the exaration of this Decree and the form of its dissemination.

(*) José Manuel Jiménez Aleixandre, Spanish, studied Architecture and Journalism at the Complutense University of Madrid, and holds a PhD in Canon Law from the Pontifical St. Thomas Aquinas University (Angelicum) in Rome.

[1]"comprendere la reale fondatezza delle problematiche rese note, nonché le eventuali cause che le hanno determinate, le responsabilità attribuibili ai singoli religiosi".

[2]"El proceso penal canonical se desarrolla en dos fases clearly differentiated y de naturaleza legal variousa. La primera fase, la investigación previa, es de naturaleza estrictamente administrative, y la segunda, si se llega a ella, puede ser judicial o administrativo, según que se decide to proceed for judicial processing the by out-of-court decree. La investigación previa se inicia a cuando llega a conocimiento del Ordinario la noticia de un posible delito, bien porque é é é un hecho notorio, bien por denuncia previa o rumor exist ing la comunidad. Entonces el Ordinario debe investigate los hechos y las circumstancias, de manera especial si el delito es imputable de manera deliberate al ham autor" (p. 879).


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