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CHRISTIFIDELIS
TO
DEFEND CATHOLIC TRUTH AND UPHOLD
CATHOLIC RIGHTS |
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| May 1, 1998 |
Feast
of St. Joseph the Worker |
Vol.
16, No. 2 |
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| In this section of CHRISTIFIDELIS we present
questions which have been asked of the Foundation, summaries of actual cases or
explanations of current issues which have to do with some aspect of ecclesiastical law.
The answers or opinions given have only the force of the authors scholarship and are
intended for the purpose of informing our readers. Ed. |
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What
is a Procurator? |
The Question:
The Foundation has suggested that in pursuit of a
canonical remedy we appoint a procurator. Can you tell me just what a procurator is
and what he does?
The Answer:
One meaning of the Latin
word was the governor of a province, such as Pontius Pilate. However, the word also means
an agent or proxy, and it is this meaning that applies to the question.
There are a number of functions that one
can perform through a proxy. In secular matters, a person usually does this by means of a
power of attorney. We can appoint an attorney-in-fact to do something as simple as
transferring title on an automobile or as complex as assuming responsibility for all of
ones affairs in the event that one becomes incapacitated. Likewise, in the Church
one can act through a proxy in a number of ways. For example, if you are asked to serve as
a sponsor at a baptism that is some distance away, you can appoint a proxy to act for you.
In fact, one can even marry by proxy (cc. 1104-1105).
Another parallel to our civil system is in
class action litigation. The class action mechanism allows one or more members of a class
of litigants to sue on behalf of the entire class, provided that they demonstrate that
they will adequately represent the class and protect its interests. Although there is no
such thing as a class action suit in canon law, many of the benefits of class action
litigation can be gained in canonical processes if the members of a group of Catholics
designate the same person as procurator. Although a class representative in the civil
system must be a member of the group claiming to be injured, the procurator in a canonical
matter may be someone outside the group.
In canonical processes, one who acts for
another is usually called a procurator rather than a proxy. A person appoints a procurator
by signing a document called a mandate. Most of the canons that govern the
appointment of procurators also address the function of the advocate. The advocate argues
the case and defends the rights of his client, much like a barrister in the British legal
system. According to canon 1483:
The procurator and the advocate must have at least
attained majority and be of good reputation; furthermore, the advocate must be a Catholic
unless the diocesan bishop permits otherwise, must have a doctorate in canon law or be
otherwise truly expert and must be approved by the same bishop.
Often the procurator and advocate are one
in the same. This is almost always the situation in appeals to Rome, where a
procurator/advocate can sign legal documents in addition to arguing the case on
behalf of his client. Until an appeal is taken, however, a client does not usually need an
advocate except, of course, in penal processes.
The only qualifications to act as a
procurator are, as canon 1483 clearly states, that one have reached the age of majority
and be of good reputation. Thus the procurator need not be a Catholicor baptized at
all for that matterand need not be approved by the bishop. Moreover, he does not
have to have a degree in canon law or any other discipline. Although he cannot argue the
case, a procurator can appoint advocates, negotiate a settlement, enter into arbitration
and lodge an appeal of a decision.
Although a lone individual may appoint a
procurator, the primary advantage of a procurator is that he can act on behalf of a group
of individuals who have appointed him. This is especially useful in cases involving the
closures of parishes, renovations of church buildings and discrimination in administration
of the sacraments to children of home schooling parents. Use of a procurator enables the
clients in such cases to speak with one voice. Clients are sometimes reluctant to appoint
a procurator for fear of losing control over the proceeding. However, such fears are
unfounded because a dissatisfied client can revoke his mandate or appoint a substitute
procurator at any time.
Even though the procurator has the status
of the duly appointed representative of the parties according to canon law, it must be
remembered that in many instances the law does not require a pastor or bishop to deal with
a procurator any more than he would have to deal with individuals. Therefore, the
appointment of a procurator is no remedy to the pervasive and time-honored practice of
stonewalling by ecclesiastical authorities. In practice, however, we find that a
procurator is more likely to get a response than are individuals acting on their own
behalf.
Bishops and religious superiors have reacted to the
presence of a procurator in some unusual ways.
In one such instance, a diocesan bishop rejected the petition of appeal of his decision to
close a parish because the parishioners selected their own procurator rather than the one
he had designated. In another, the superiors of a religious priest were attempting to
intimidate him into submitting to six months of psychiatric treatment. When the priest
appointed a procurator, as he had every right to do, the superiors simply refused to
recognize his procurators mandate. These and other similar tactics can backfire by
creating legal issues that can be appealed to the Holy See.
Like canon law itself, the use of a
procurator is not a solution to every difficult situation in the Church. There are
occasions, though, when his presence is essential. |
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