Canon Law

Canon Law

Confirmation of the Decree of Dismissal

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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.

 

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Canon Law

Dismissal of a Religious

SEP 07

Sr Sherly, a forty-five-year-old finally professed member of a religious congregation, attended the “liturgical” services of a Pentecostal Church regularly.  Even after repeated requests by the authorities not to do so, she continued her practice. Eventually her Superior General dismissed her.  Can the Superior General dismiss a perpetually professed member for such offences?

In order to answer this query, let us examine what is meant by dismissal of a religious and the categories of dismissals. Dismissal is a canonical procedure initiated by a religious institute to terminate membership of a temporarily/perpetually professed member. A religious can be dismissed only for the gravest causes provided by the law.  There are three categories of dismissal: (i) ipso facto, (ii) obligatory and (iii) facultative or discretionary.

Ipso facto dismissal means that a religious is automatically dismissed for certain offences by law itself.  The Latin Code of Canon Law (CIC c. 694§2, 1º, 2º) and the Oriental Code (CCEO c. 497§2, 1º, 2º) deal with offences leading to automatic dismissal of a religious.  There are only two such offences: (i) Public rejection of Catholic faith manifested in cases of apostasy, heresy or schism; (ii) celebrating marriage or attempting to do so, even civilly. Apostasy is the total rejection of the Christian faith received in baptism.  Heresy is the conscious and wilful denial or doubt of a truth which is to be believed by divine and Catholic faith.  Schism is withdrawal of submission to the Pope or with the communion of members of the Church subject to him (CIC c.751).

In this case, the superiors do not have to follow the ordinary process of dismissal.  The major superior, in consultation with the council, has to gather evidences for the offence, and without delay make a straight forward declaration that so and so is dismissed. Even without the declaration, the religious is and remains dismissed from the institute (CIC c. 694§2; CCEO c. 497§2).

Obligatory dismissal means the law obliges the institute to dismiss any member found guilty of offences against human life and liberty, viz., homicide, kidnapping, mutilation, serious wounding of another person, abortion, concubinage or other sins against the sixth commandment inferior to attempted marriage (CIC cc. 695§1, 1397, 1398, 1395; CCEO cc. 553, 500-503, 1450, 1451).  Before the dismissal, it has to be proved that the offence did occur and that it was juridically imputable.

With regard to concubinage and offences against sixth commandment, the superior may, in particular case, decide otherwise; it cannot, however, be made arbitrarily.  The superior must ensure that effective arrangements have been made to provide for the correction and amendment of the offender, taking into account the nature of the offence and the damage caused to another person.

Facultative/Discretionary Dismissal means the major superior uses discretionary powers to decide whether to initiate the process or not for the following offences which are grave, external/public, imputable and juridically proven: (i) Habitual neglect of the obligations of consecrated life; (ii) repeated violation of the vows/sacred bonds; (iii) stubborn disobedience to the lawful orders of superiors in grave matters; (iv) grave scandal arising from the culpable behaviour of the member; (v) obstinate attachment to or diffusion of teachings condemned by the Church; (vi) public adherence to materialistic or atheistic ideologies; (vii) unlawful absence from the house that exceeds six months; and (viii) other reasons of similar gravity defined in the Constitutions (CIC c. 696§1; CCEO c. 500§2, 1º, 552§2, 1º, 2º).

A religious in temporary vows can be dismissed even for less grave reasons defined in the Constitutions (CIC c. 696§2; CCEO c. 552§1).  Unless it is a matter of grave scandal, the general practise is that the superior, at the expiry of vows, refuses to admit the temporary professed to further profession.

It is obvious from what we have presented so far that the Superior General has used discretionary powers to dismiss Sr. Sherly because of her stubborn disobedience to the lawful orders of the superiors even after repeated reminders. Besides, participating in such gatherings publicly, she might have caused scandal to others.  She is also culpable because of her obstinate attachment to or diffusion of teachings condemned by the Church.

 

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Canon Law

INCARDINATION OF A RELIGIOUS PRIEST INTO A DIOCESE

JULY 12a

Fr. Rajesh, a religious priest, applied to the Holy See for an indult (permission) to leave the institute and be incardinated into a diocese.  His superior general, after having discussed with the diocesan Bishop, allowed him to serve in the diocese.  While serving in the diocese, he received the indult. After four years, the Bishop refused to incardinate him into the diocese. The superior general accepted him back in the institute.  Is it right for the Bishop to refuse him the incardination? Can Fr. Rajesh return to his religious institute?

Let us begin with the term ‘incardination.’ It is also called enrolment.  It comes from the Latin word cardo, meaning ‘hinge.’ Incardination is the term used for the enrolment or affiliation of a religious into an institute of consecrated life or a society of apostolic life; or a diocesan priest into a diocese.  The incardination, in fact, confirms the law that prohibits ‘acephalous’ (“without a head”) or “wandering” religious or diocesan cleric (CIC c. 265; CCEO c. 357§1). This means that a Catholic priest or religious must belong to a diocese or religious order. He or she cannot simply be a wandering person without affiliation.

The incardination of a religious cleric is twofold. He is incardinated into the institute: (i) during his perpetual profession; (ii) during his diaconate, just as a diocesan deacon is incardinated into a diocese by virtue of his diaconal ordination (CIC cc. 268 §2, 266 §2; CCEO c. 428).

The incident we discuss is an instance of change in the status of a religious priest to that of diocesan clergy.   CIC c. 693 and CCEO cc. 494, 549§3 deal with the procedure to be followed, when a cleric desires to leave the institute to be incardinated into a diocese.

Documents needed

In our previous discussion we reflected in general about the indult to leave the religious institute. Now, we confine our discussion to clerics.  In the case of a cleric, whether a deacon or a priest, the following documents are to be forwarded by the superior general while requesting for an indult to leave the institute: (i) motive for the request; (ii) letter of acceptance of the Bishop who is willing to receive him, with or without a period of probation; and (iii) opinion of the superior general and the council.

 

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Sr Licia SMI

 

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Canon Law

Indult to Leave a Religious Institute

JUNE 19

Brother Ignatius, a perpetually professed brother in a religious congregation, decided to leave and applied for an “indult” to leave the institute.  When the “rescript” arrived from Rome, he refused to accept it.  The superiors permitted him to continue his religious life.  Is it right from the part of the superiors to permit him to stay on even after the Holy See granted the permission to leave?  Would you also explain the terms, ‘indult’ and ‘rescript’?

We shall begin with explaining these terms: (i)The word ‘indult’ is derived from the Latin word indultum meaning a ‘favour’ or ‘privilege’ or ‘dispensation’ or ‘special permission’ granted by the competent superior.  (ii) The term rescript’ comes from the Latin re-scribere meaning a response in writing by the competent authority.The competent authority in both cases is: For a pontifical right institute, it is the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life;for a patriarchal right institute,the Patriarch and for a diocesan right institute, it is the diocesan bishopof the diocese where the generalate resides (CIC c. 691§2; CCEO c. 549§2, 1º,2º).

The term ‘indult to leave the institute’ is also called ‘secularisation’.  It refers to the definitive departure of a member from the religious institute.  It concerns, just as in exclaustration, only with the perpetually professed and not temporarily professed members.

“A perpetually professed religious is not to seek an indult to leave the institute, except for the gravest of reasons, weighed before the Lord.  The petition is to be presented to the supreme Moderator of the institute, who will forward it to the competent authority with his or her own opinion and that of the council.”  “A member in perpetual vows is not to request an indult to leave an order or congregation and to return to secular life except for the most grave causes.  The religious is to present his or her petition to the superior general, who is to send it, along with a personal opinion and the opinion of his or her council to the competent authority” (CIC c. 691§1; CCEO c. 549§1).

The wording in the canons is in superlative degree emphasizing the seriousness of the act.  Hence a purely subjective judgment by an individual is not sufficient.  It can be requested only for most grave reasons weighed before the Lord.  The gravest reasons could be genuine inability to observe the obligations of religious life; absence of religious vocation; the incapacity, not merely difficulty, to live community life; or repeated violations of the vows.  Hence before applying, the member is to seek counsel from qualified persons like spiritual director, confessor or superiors.

The petition is to be addressed to the Holy See/Patriarch/Diocesan Bishop through the mediation of the superior general.  The personal opinion of the superior general and that of the council are to be forwarded along with the petition.  Even when the opinion is not favourable to the petitioner,it can still be forwarded.  In certain cases, the superiors may propose this alternative in order to avoid the process of dismissal. The request is subsequently, not necessarily, granted through a rescript.  The one petitioning for an indult does not have absolute right for it.  Therefore, it is granted as a ‘concession’ of the competent authority.

The rescript is made known to the member by the superior general.  If there is a practical difficulty for the superior general to communicate, they may delegate the provincial to do so.  Upon the notification of the rescript and acceptance by the religious, the member is automatically dispensed from the obligation of keeping the three vows and the membership of the member in the institute ceases.  The incident that took place in the congregation, who raised the above questions, is a rare occurrence. However, it is right because the canon law gives the right and freedom to the petitioner to accept or reject the indult at the time of intimation. If during the interval between the petition and the rescript, the cause has changed or there was a change of heart, the individual mayreject the indult.  However, the rejection has to be expressed in some public form, either in writing or in the presence of at least one reliable witness.  In case the religious concerned reject the rescript, the indult becomes inoperative and has to be sent back to the conceding/granting authority with the annotation/explanation of the refusal by the petitioner. (CIC c. 692; CCEO c. 493§1).If the petitioner is a cleric, the indult is not granted before he finds a Bishop who agrees to accept him in his jurisdiction permanently or at least experimentally for a period of five years (CIC c. 693; CCEO c. 494).


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Canon Law

Physical and Mental Illness: A Hurdle for Perpetual Profession?

MAY 12

Sr Virginia, a temporarily professed sister, contracted a serious disease, and was excluded from making her perpetual profession. She had to leave the institute. In the same institute, Sr Geneviève, who had become insane after four years of her first profession, was allowed to continue. Why this disparity?
For an answer, we need to deliberate on the relevant provisions of Canon Law. A religious in temporary profession does not have an absolute right to be promoted for the perpetual profession or renewal of vows. The major superior, with the consent or in consultation with the council, in accordance with each institute’s Constitutions, has the right to accept a religious, who has applied for perpetual profession or renewal of vows (CIC c. 689§1; CCEO c. 547§1). They may exclude a temporarily professed member due to the following just reasons: failures in observing the vows and leading a common life in charity, lacking religious spirit, ill-health or unsuitable disposition for religious life and lack of sufficient maturity to undertake the life proper to the institute. Such exclusion is not equivalent to dismissal (CIC c. 689§1; CCEO c. 493§2).
According to Canon Law of both Latin Church (CIC) and Eastern Churches (CCEO), the competent superior can exclude a member from making the renewal of vows or perpetual profession because of physical or psychological illness. But, if a member becomes insane, they can continue to stay in the institute.
Types of Illness—and What Caused it
Let us look into the Canons: (i) “Even though contracted after profession, a physical or psychological infirmity which, in the judgement of experts, renders the member … unsuited to lead a life in the institute, constitutes a reason for not admitting the member to renewal of profession or perpetual profession, unless the infirmity was contracted through the negligence of the institute or because of work performed in the institute.” “Physical or psychic illness, even contracted after profession, which in the judgment of experts renders the member in temporary vows unsuited to lead the life of the religious institute, constitutes a cause for not admitting the member to renew temporary profession or to make perpetual profession, unless the illness was contracted through the negligence of the institute or through work performed in the institute.” (CIC c. 689§2; CCEO c. 547§2)
(ii) “If, however, a member becomes insane during the period of temporary vows, even though unable to make a new profession, the member cannot be dismissed from the institute.” (CIC c. 689§3; CCEO c. 547§3)
In the former case, the competent superior is to seek the opinion of experts (physicians/psychiatrists/ psychologists) to ascertain the member’s suitability as per each institute’s life and mission. The illness can be physical or psychological. It could be contracted before or after the religious profession. The only exception to this law is when the illness is contracted through the negligence of the institute or a work performed in the institute. Here the burden of proof rests upon the institute. It has to make sure that there was no negligence whatsoever on the part of the institute and that the work performed in the institute did not cause the disease. This Canon also cautions superiors to provide reasonable healthcare for all their members and, in case of exclusion, their obligation for ensuring that natural justice, equity and Christian charity are taken care of in settling the excluded member.
In the latter case, the religious cannot be sent out because of insanity. It does not mean that the insane member is to live in a religious house at all costs. The institute is to provide appropriate treatment and care. They can be protected in a psychiatric hospital or any equivalent place for the good of the patient and the community. If the parents or relatives are freely willing to take care of them, the institute could make arrangements with them and provide required financial assistance. In this case, the religious remains as a temporarily professed member unless the treatment enables the person to make a further profession. However, if the insanity was already present before the first profession in such a way that it would invalidate the same profession, the above Canon does not apply.


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Canon Law

Councils: Their Functions and Duties

April 11

Sr Patricia, one of the general councillors of her religious order, reveals the discussions of the council and a decision confided to her by the superior to one of her friends in the institute.  That friend in turn passes it on to other friends.  By the time the authorized communication is circulated, the matter has already become public.  Consequently, some are indifferent towards the official communication; others feel hurt.  

What is the proper way for a council member to act?

The councillors mainly participate in the governance of the institute by a deliberative or consultative vote.  They are to stand by the superior on all decisions, while retaining their freedom to express their opinion, admonish the superior or even report matters to the higher authority, if required.  Other functions of the council, as well as its composition and membership, must be expressly determined in the Constitutions.  In the case of dismissal of a member, Canon Law (CIC c. 699§1) stipulates a minimum of four council members.

In order to seek consent or advice, the superior has first to convoke the council. This is the first requisite for validity, unless the constitutions say otherwise for mere advice (CIC cc. 166§1, 127§1; CCEO cc. 948§1, 934§1).  The purpose of calling a council is for the superior to be enlightened about the best possible option.  After convoking, the superior has to present the necessary facts relating to the matter to the councillors.  The council members have the right to be informed of the relevant facts needed to form a valid judgement.  Superiors are duty‑bound not to manipulate the consultation process.

Consultation

The consultation of the council takes place through a consultative vote.  After considering the advice of the council, the superior makes the decision.  For the validity of the act, consulting the council is a must, but the superior is not bound to follow the opinion even if it is unanimous. At the same time, the superior is not to act contrary to the unanimous opinion unless there is a grave reason in the judgement of the superior.   Councillors are to collaborate with the superior in expressing their mind sincerely, whether acting as part of the group or as individuals (CIC c. 127§3; CCEO c. 934).

No one can abstain from expressing their opinion, because the non-cooperation of the councillors can paralyze the governance of the institute. The advice of the council members must be personal, free, honest and truthful without any partiality or vested interest and devoid of partisanship, factionalism, anger, pride, stubbornness or blind adherence to their personal opinion.

Consent

Consent is obtained through a deliberative vote and with the absolute majority.  In the cases, where consent is required, the superior cannot act validly without adhering to the majority vote of the councillors.    While superiors are obliged to obtain consent, the law does not strictly oblige them to proceed with the action.  The superior may abstain from the action, after the deliberative vote, because of confidential information.  Unlike consultation, in respect of consent, if a council member, after prayer and discernment, feels the need to abstain from voting, they retain that freedom.  But that freedom can be exercised only when there is an honest reason.  In such instances, the superior or other members of the council cannot force that member to vote against their conscience.

Secrecy

Canon Law (CIC c. 127 §3) urges the councillors to maintain secrecy in all important matters discussed in the council; the superior must insist on this obligation.  The seriousness of the matter demands it and the superior can insist on the obligation of secrecy even by means of a decree (CIC c. 49).   The councillors should not reveal the happenings/discussions in the council deliberations (the opinion or vote given by the councillors; transfer or appointment of the members, etc.).  They should also maintain the secrecy in other important matters confided to them by the superior.  The revelation of these matters could be counterproductive and can cause great harm.


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Canon Law

Major Superiors and Their Council

MARCH 18

Sr Bartholomea was appointed a regional superior with a council of three members in July 2017.  Two of the council members can hardly attend the meetings, since one is principal of a college; the other is the only doctor in a busy hospital.  The third councillor, according to Sr Bartholomea, is not so cooperative.  Often the decisions are taken by Sr Bartholomea alone, as she feels that convoking a council all the time is not possible for her.

Let us see who a major superior is, and what s/he should do in such cases—as also the role of the council.

CIC (the Latin Code of Canon Law), Canon 620 defines who the major superiors are.  CCEO (the Oriental Canon Law), Canon 418 §1 defines and gives the list of the major superiors.

Who are Major Superiors?

President of a monastic confederation, superior of a monastery sui iuris, superior general of an order or congregation, provincial superior, ‘their vicars and others who have the power like that of provincials, and also those who, in the absence of the above-mentioned persons, in the interim legitimately succeed them in office.’

As regards the power of governance, the major superiors of clerical religious institutes of pontifical right are also Ordinaries or Hierarchs (because they share the power of governance deriving from their sacred ordination that they receive at their ordination but they are not Local Ordinaries/ Hierarchs) as far as their own members are concerned (CIC c. 134 §1; CCEO c. 984§3). CCEO c. 418 § 2 clearly indicates that ‘under the designation “superiors of monks and other religious” does not come either the Local Ordinary/Hierarch or the Patriarch, with due regard for the canons that assign to the Patriarch or Local Ordinary Hierarch power over them. Vicars take the place of the major superior, when the latter is absent or prevented from exercising the office due to illness, etc.  However, those substituting for a major superior in an ad hoc manner (only for a particular purpose or an emergency) exercise only delegated power and are not major superiors.

The distinct roles and the extent of the power of major superiors must be stipulated in the Constitutions/Statutes of each institute and exercised in accordance with it.  The scope and expression of this authority can vary greatly from institute to institute.   The figure of the superior general affirms that no part of the institute is independent and all its organisms are parts of the whole.  At the same time, the constitutions must specify the competence of the superiors at each level so as to apply the principle of subsidiarity stipulated in Ecclesiae Sanctae II, 18.  At each level the superiors must be given the freedom to carry out their tasks fully and efficiently, unless the common good of the institute demands that the superior general should appropriately intervene.

The Role of Councils

CIC c. 627§1 and CCEO c. 422§1 state that superiors should have their own councils as specified in their constitutions and that they must make use of these councils in the exercise of their offices.  This council is made mandatory in order to guarantee real cooperation and participation of the members according to the Church’s teaching on co-responsibility.  It also aims to prevent the superior from committing errors and to safeguard against autocratic power.

Council members are chosen because of their wisdom, experience, and ability to assist the superior with good advice and appropriate consent, and they have distinct roles.  The superior has a council, but is not part of the council.  While seeking consent/advice, the superior does not vote.  The superior votes only when a collegial vote is required (e.g., dismissal).  The council is normally not a decision-making body, but is an integral part of the decision-making process regarding serious matters.  They are to assist the superior by sharing insights, evaluating initiatives, raising issues, extending support and participate in the council discussions with courage and creativity.

The Codes provide more than a dozen instances where the superior requires consent/advice of the council.  According to the tradition and spirit of the institute, the constitution may provide more such instances, but care must be taken not to prevent the superior from appropriate flexibility and timeliness in responding to situations.  Once the advice or consent is given, the role of the council ends, and it is up to the superior to act or not act on it. The process of convoking the council, presenting the matter in question and seeking consultation/consent are made mandatory in order to serve the community by making use of a wider range of knowledge and experience.  This would prevent autocratic decisions/actions regarding members and the goods of the institute.


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Canon Law

Exclaustration: What, When and How

03

Sr Rosalia went home to visit her parents and failed to return after a month, as she was supposed to.  On enquiry, it was learnt that she got employed in a college away from her home town and was living in a rented apartment.  After several telephone calls and e-mail communications, her major superior visited her personally and coaxed her to return to the institute.  Though Sr Rosalia promised to return after the completion of one year, she did not return nor was she willing to be accountable to the superiors.

In this case what are the options open to the superior?

There are two: voluntary and imposed types of exclaustration. What are they?

Voluntary Exclaustration

There are three steps generally followed in this process.

Step 1: A religious writes to the superior general requesting for an indult (a permission or favour in writing granted on request) with the following information: (a) Bio-data, (b) reason or reasons for requesting the indult, (c) efforts undertaken to resolve the difficulties, e.g., spiritual direction, counselling etc., and (d) the duration of the exclaustration (it should not extend beyond three years).  While the religious has the right to request for an indult, the superiors are not obliged to grant the request.

Step 2: After receiving the formal request, the superior general convokes the council to seek consent and decide on the matter.  They would examine whether there exists a grave cause for the request.   If the religious seeking exclaustration seemingly tries to avoid the demands of legitimate authority or the obligations of religious life in community, it will not constitute a grave cause.  After a deliberative vote of the council the superior general communicates the decision to the religious in writing.  It becomes effective immediately or as specified in the indult.

Step 3: While the superior general hands over the permission, the religious seeking exclaustration signs the document in the presence of two witnesses, indicating that he/she: (a) clearly understands the terms and conditions, (b) lacks active and passive voice, (c) may or may not wear the habit and (d) will notify to the diocesan bishop of the exclaustrated status and the presence in the local church.

If the religious wants to extend the exclaustration after three years, the religious is to state clearly the motivation and the superior and the council have to give their opinion while applying to the Holy See or to the diocesan bishop.

Imposed Exclaustration

The procedure followed here is similar to that of dismissal, though in a less rigorous manner.  There are four steps followed generally in this process.

Step 1: The major superior warns the religious about the offence either in writing or orally in the presence of two witnesses.  After a minimum gap of fifteen days, the superior gives the second warning, if there is no improvement in the situation.  The religious must be given opportunity to defend her case on both the occasions.  Even after these warnings, if there is no considerable improvement in the situation, the  major superior communicates to the superior general.

Step 2: The superior general convokes the council to seek consent.  The superior general and the council examine the case in detail.  Then, with the consent of the council, the superior general submits to the Holy See (in a pontifical right institute) or to the diocesan bishop (in a diocesan right institute) the petition requesting exclaustration with the following information: (a) an extract of the council meeting at which consent was given, (b) summary of the efforts made to assist the member over a period of time, (c) the reason or the concrete cause for requesting for the indult, (d) the response of the religious to the warnings issued, (e) bio-data of the member, (f) duration of the exclaustration and (g) the manner in which the institute intends to practice equity and charity.

Step 3: The decision of the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life or the diocesan bishop, as the case may be, is communicated to the religious concerned.

Step 4: is same as mentioned above in step 3 regarding the procedure for voluntary exclaustration.


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Canon Law

Leave of Absence and Exclaustration

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Here is a true case.

Sr Scholastica is suffering from a severe skin disease. With her provincial’s permission, she stays at home while receiving treatment. Realizing that she would have to be away from the community for over a year, her superior asks her to request for exclaustration.  But, with the advice of a canonist, Sr Scholastica applies for a leave of absence.  What is the difference?

Leave of absence is permission granted to a religious by the major superior with the consent of the council to stay outside the religious house.  It means a prolonged absence from community life or a temporary suspension of the obligation to observe community life granted to a religious.  There should be a just cause to grant such a permission.   Major superiors can grant this permission only for one year—unless it is for the purpose of: (i) getting medical treatment, (ii) pursuit of studies or (iii) apostolate exercised in the name of the institute (CIC c. 665, CCEO cc. 478, 495, 550).

Those members who are on leave of absence are part of the institute and the local community to which they are assigned.  They are obliged to wear the religious habit.  They continue to be full members of the institute, enjoying all the rights and privileges, including active (the right to vote) and passive voice (the right to be voted) in elections.  Even if they are not members of the chapters, they can be elected or nominated to any office subject to their acceptance.

Exclaustration is permission granted to a perpetually professed religious to stay outside the enclosure or to stay away from the religious house.  There should be a grave reason to grant exclaustration, for instance, to contemplate on and discern one’s vocation or to care for an ailing parent.  There are two types of exclaustration: voluntary and imposed (CIC cc. 686, 687; CCEO cc. 489- 491, 548).

Voluntary exclaustration is granted at the formal request of a religious.  If the religious is a cleric, he requires the prior consent of the bishop, where he intends to reside.  While CIC gives the right to grant the permission to the superior general with the consent of the council, CCEO states that only the Holy See or diocesan bishop, to which the institute is subject, can grant exclaustration.  The maximum period:  three years.  A religious seeking it for more than three years need to appeal to the Holy See, if it is a pontifical right institute and to diocesan bishop in a diocesan right institute.  However, only the Holy See can grant the permission in respect of cloistered nuns.   Even if it is granted for three years, the religious in voluntary exclaustration may return to the religious house, with the permission of the superior, if the reason or reasons for exclaustration have already ceased.

In imposed exclaustration, the superior general takes the initiative.  After obtaining the consent of the council, the superior general is to make a formal request to the Holy See (for a pontifical right institute) and to diocesan bishop (for a diocesan right institute).   It is exercised in order to protect the rights of the institute against the aberrant behaviour of a member, who, despite the advice of the superior general, is not willing to apply for a voluntary exclaustration on their own. While imposing exclaustration on account of a grave cause, superiors must observe equity and charity.

Effects of exclaustration: During the period of exclaustration, although the religious remains a member of the institute, there are certain limitations in their relationship with the institute: The person is: (a) dispensed from those obligations that are incompatible with the new condition of life, e.g., obligation to common life. The vows of obedience and poverty are relaxed to a certain extent; (b) dependent on and under the care of the superiors of the institute and the local ordinary; (c) allowed to wear the religious habit unless the indult specifies otherwise; (d) without active and passive voice.  According to CCEO, the religious is obliged not to use the habit (CCEO c. 491) and is subject to the diocesan bishop rather than to the religious superior.  Although regular communication is expected between the religious and the superior, it depends on their mutual agreement.


Sr. Licia MSI

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Canon Law

Dealing with a Difficult Religious

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Sr Veronica disturbs the peace and tranquillity of community life through her rude, unpleasant behaviour. Her words and actions damange the harmony of the community and make it difficult for others to live, work and support one another in the community.  Harsh words, unruly behaviour and frequent fights seem to have become her characteristic traits. When corrected, she responds badly, and refuses to admit her faults. How can we deal with such a member?

Fraternal life in community is a constitutive element of religious life.  The Code of Canon Law (CIC c. 602) speaks about communion as brothers/sisters living as ‘a true family in Christ’ through prayer, charity, mutual sharing and support. Another Canon (CIC c. 665§1) states that a religious has both the right and the obligation of community life in common.  While defining the characteristics of the religious state, a third Canon (CCEO c. 410) explicitly refers to common life in community.

Since this sort of difficulty arises in the local community, it is the responsibility of the local superior to deal with this member initially.  Patience and empathy should be the arms in dealing with that member.  Such a religious must be led to see through concrete examples of habitual neglect of the obligations of consecrated life that prevents the harmonious living in the community and mission.  Specific modification of behaviour patterns is to be recommended and counselling must be offered.

If kindness and counselling fail

If the disruptive behaviour continues, the next step should be to inform the major superior (provincial or general).  This is a must for the good of the individual religious and to protect the rights of other members to live in the spirit of their institute.  The difficult religious should never be neglected under the pretext of charity.  It would not only be an action of injustice done to other members of that community, who are trying to live out their call, but also to the individual, who is in difficulty.  Major superiors have the major responsibility to protect the rights of the members and also to convince everyone about their obligations to be fulfilled as members of the institute. The major superior is bound to do all that is possible to help that religious by way of exhortation and counselling. They may even resort to shifting that particular person from that community or ministry, because this type of problem can also arise from the incompatibility of that person with one or more members of that community, including the superior.

The major superior is to encourage the member experiencing difficulty to undergo a psychophysiological examination.  At times, such behaviour could be due to chemical or hormonal imbalances or mid-life transition.  There are instances, where prescribed medication has cured such abnormal behaviour of persons.  If the behaviour is due to physical, emotional or psychological illness, treatment is required.  Whatever be the actions resorted to, utmost care must be taken to protect the privacy and good reputation of the individual.

If treatment is needed

Two other Canons (CIC c. 665§1 and CCEO c. 478) state that major superior with the consent of the council can grant a member permission to stay outside the religious house as long as necessary for such a treatment.  During this period of absence from the house they are to follow the obligations of religious life and are accountable to the superiors.  The superior either personally or through a delegate is to keep in contact with the religious on leave and with the professional/physician who is treating the religious.  After doing all that is possible by local and major superiors in helping out the member, if the disruptive behaviour persists or that the member does not co-operate with the superiors, exclaustration could be a solution (CIC cc 686; CCEO cc 548). If exclaustration also does not bring the good results and the incorrigibility continues in the individual, eventually dismissal procedure can be initiated according to the norms given in CIC cc. 695-704 and CCEO cc. 551-553 and also according to the prescriptions in their Constitutions.  However, the process of dismissal is not to be applied to those suffering from emotional or mental illness or to those who are advanced in age.


Sr.Licia SMI

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