By PAMELA SCHAEFFER
NCR Staff

The excommunication of Oblate Fr. Tissa Balasuriya by the Vatican's Congregation for the Doctrine of the Faith is invalid because the Holy See failed to comply with proper procedures under canon law, according to a lawyer from Australia who is doing postgraduate research in canon law in Paris.

In an article in the July issue of Convergence, Journal of Pax Romana-ICMICA the lawyer, Stefan Gigacz, argues that the wrongful penalty levied against Balasuriya is one in a string of abuses that have caused suffering to individuals and "scandal to the faithful."

ICMICA -- International Catholic Movement for Intellectual and Cultural Affairs -- is based in Fribourg, Switzerland.

The 72-year-old Balasuriya of Sri Lanka was declared excommunicated for allegedly heretical views on Catholic teachings (NCR Jan. 17, Feb. 14, March 7). In particular, doctrinal watchdog Cardinal Joseph Ratzinger cited Balasuriya's views on original sin as described in Mary and Human Liberation, in which Balasuriya also declares that Mary was the first woman priest. The book was published in 1990 by Balasuriya's Centre for Society and Religion in Sri Lanka.

"Pope John Paul II has taken many courageous steps to recognize errors of the past," Gigacz writes. "It seems to me that he is now called to demonstrate even greater courage and humility in allowing for a judicial review of a wrongful and invalid act approved in specific form by himself." To allow the penalty to stand "gravely damages the church's reputation" and "serves to weaken the church's legitimacy as a voice for the truth."

In summary, Gigacz argues as follows:

• In declaring Balasuriya excommunicated, the Vatican congregation violated Canon 1342, which requires a trial unless precluded by "just causes," such as the accused person's refusal to appear.
• The pope has a serious obligation to follow canon law. Where it is not followed, the pope's approval of a decision is meaningless.

Even where bypassing a trial appears justified, the accused is to be given an opportunity for self-defense under Canon 1720, Gigacz writes. Yet, in the Balasuriya case, "there is no indication anywhere of any attempt by the CDF to convene a hearing of any sort," he says.

The violations in the Balasuriya case lead "irresistibly to the conclusion that the notification declaring Fr. Balasuriya to be excommunicated is juridically invalid, indeed it is irremediably null," Gigacz writes. "It therefore has no legal effect or even no legal existence."

"The pope's approval of such a process does not change those circumstances," he writes. "The pope is not above the law. As a bishop, he is bound by canon law." In fact, Gigacz notes, Canon 1405 explicitly provides for appeal against penalties imposed by popes.

In response to persons who point to Canon 1404, which says the Holy See "is judged by no one," and to Canon 333, which states "there is neither appeal nor recourse against a decision or decree of the Roman Pontiff," Gigacz argues that these laws historically were meant to prevent appeals to non-pontifical authorities. They cannot be used to bypass proper juridical procedures within the church, he says.

Gigacz is doing postgraduate research in canon law at the Catholic Institute of Paris and the University of Paris. He was formerly treasurer of the International Young Christian Workers. He told NCR he had been motivated to study canon law by problems the youth worker organization had experienced with the Holy See.

Gigacz decided to write on Balasuriya, he said, because "I have not seen many reactions from other canon lawyers on this issue."

Note: Excerpts from Mary and Human Liberation by Fr. Tissa Balasuriya were published in NCR's Feb. 21 edition.

National Catholic Reporter, August 1, 1997

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