1THE SIGNIFICANCE FOR THE LATIN CHURCH
OF EASTERN CANONS 29-38 ON ASCRIPTION
Rev. Jobe Abbass, Conv.
When the canons governing ascription in the Codex Iuris Canonici (CIC) are compared to those in the Codex Canonum Ecclesiarum Orientalium (CCEO), it is immediately evident that the norms in the latter are much more detailed. Indeed, while two Latin canons (111-112) are devoted to ascription to a Church sui iuris, there are ten Eastern canons (29-38) dedicated to the same subject.1 Although the Latin Code regards only the Latin Church and the Eastern Code principally governs the Eastern Catholic Churches, the two are not so separate and distinct as to be unrelated. The legislator, himself, meant to establish an interrelationship of the Codes when he presented the new Eastern Code to the twenty-eighth General Congregation of the Synod of Bishops on October 25, 1990. John Paul II indicated that he regarded CCEO, together with CIC and Pastor bonus to be integral parts of "one Corpus Iuris Canonici" in the universal Church.2 Even from the first Eastern canon, His Holiness effectively codified this interrelationship. Unlike CIC canon 1,3 CCEO canon 1 states: "The canons of this Code concern all and only the Eastern Catholic Churches, unless, with regard to relations with the Latin Church, it is expressly (expresse) established otherwise."4
There are, of course, nine CCEO canons which expressly, that is, explicitly oblige the Latin Church.5 However, until recently, there was disagreement among canonists regarding the exact interpretation to be applied to expresse. A minority of canonical writers argued that, in using the term expresse, the legislator only intended the canons of the Eastern Code to apply to the Latin Church when it is explicitly named. However, consistent with a classical rule of interpretation, according to which whatever is expressly (expresse) established in law can be indicated either explicitly or implicitly, a majority of writers maintained that canons of the Eastern Code could also regard or oblige the Latin Church implicitly by way of the use of the expression "Church sui iuris", which could refer to the Latin as well as the Eastern Catholic Churches sui iuris.6 Then, on December 8, 2011, by way of an official Explanatory Note concerning the interpretation to be given CCEO canon 1, the Pontifical Council for Legislative Texts essentially accepted the majority view. The Council stated: " Consequently, one must hold that the Latin Church is implicitly included by analogy each time that CCEO explicitly uses the term 'Church sui iuris' in the context of interecclesial relations."7 Given the significance of the Pontifical Council's Explanatory Note for future canonical interpretation, an English translation of the original Italian text is offered in the Appendix to this study.8
Even when Eastern norms do not contain the expression "Church sui iuris," it would also seem that the implicit (expresse) interrelationship of the Codes arises simply because of the nature of the matter (ex natura rei), for example, in the context of ascription or transfer from one Church sui iuris to another. Although the Explanatory Note does not peremptorily limit the ways in which Eastern norms can implicitly include also the Latin Church, it does not refer to a category of CCEO norms that implicitly oblige also the Latin Church ex natura rei. Still, the Explanatory Note would appear to be open to such a possibility in the context of interecclesial relations even though it does not specifically address this line of interpretative reasoning. In any event, while it could be argued that all the CCEO norms on ascription to be examined in this study expressly (implicitly) include the Latin Church ex natura rei, the same canons will be looked at mainly from the perspective of the interpretative rule established by the Pontifical Council regarding the use of the expression "Church sui iuris." As all of the CCEO canons 29-28 on ascription contain the expression "Church sui iuris," they will be analyzed to determine the extent to which the Eastern norms expressly intend to include or oblige the Latin Church. Also, the legislative history of these norms will be assessed, given the reported deliberations of the Pontificia Commissio Codici Iuris Canonici Orientalis Recognoscendo (PCCICOR), to determine if such an interpretation can be confirmed.
Now, as this writer has argued for some time, the interrelationship of the Eastern and Latin Codes is not exhausted by CCEO canon 1.9 CIC canon 17, and its counterpart CCEO canon 1499, effectively set up an interrelationship of the Latin and Eastern Codes as complementary guides to canonical interpretation. Like CIC canon 17, CCEO canon 1499 states: "Laws must be understood according to the proper meaning of the words considered in their text and context. If the meaning remains doubtful and obscure, they must be understood according to the parallel passages, if there are such, to the purposes and circumstances of the law, and to the mind of the legislator." While canon 18 of the 1917 Latin Code limited recourse to "parallel passages of this (Latin) Code," CIC canon 17 and CCEO canon 1499 do not preclude making recourse to parallel texts of one or the other of the Codes as an aid to canonical interpretation. Therefore, where the meaning of laws in one Code remains doubtful, laws governing the same matters in the other Code can serve as parallel passages to resolve ambiguities in interpretation. However, this interpretative rule does not intend, nor can it, condition or undermine the authority of the legislator, or those to whom he has granted the power, to interpret laws authentically (CIC c. 16 §1; CCEO c. 1498 §1).10
Yet another area for a potential interrelationship of the Latin and Eastern Codes is evidenced by CIC canon 19. It states: "If a custom or an express prescript of universal or particular law is lacking in a certain matter, a case, unless it is penal, must be resolved in light of laws issued in similar matters (legibus latis in similibus), general principles of law applied with canonical equity, the jurisprudence and practice of the Roman Curia, and the common and constant opinion of learned persons."11 Therefore, except in penal cases, where there is a lacuna in the Latin Code, the case must be decided with reference to four sources, one of which is laws enacted in similar matters. It only seems to follow, then, that, where the Eastern Code contains laws to govern similar matters in the Latin Code, those Eastern norms could serve to fill legislative gaps in the Latin Code. Indeed, since the legislator promulgated the Eastern Code almost eight years after the Latin Code, it may well be that he had certain lacunae in the Latin Code in mind when he enacted the newer Eastern laws. Again, however, this interpretative norm can only be invoked in individual cases and the executive or judicial authority resolving the matter can in no way replace the authority of the legislator to intervene and remedy the lacunae definitively.
Given the interrelationship of the Codes established by these Eastern and Latin canons of the one Corpus Iuris Canonici of the Catholic Church, the aim of this study will be to indicate the significance, even for the Latin Church, of CCEO canons 29-38 on ascription and transfer to a Church sui iuris. After a brief introductory section, denoting the context and mindset of the pertinent study group within PCCICOR, each of the Eastern canons will be examined successively. A commentary on each norm will be offered in the light of CCEO canon 1 and, especially, the Pontifical Council's Explanatory Note. Where applicable, reference to the interpretative rules contained in CIC canon 17 and 19 will also be incorporated into the commentaries.
CCEO canons 29-38: Context and Mindset within PCCICOR
The task of revising the former Eastern norms on ascription was entrusted to the second study group of PCCICOR, the Coetus de Normis Generalibus, Ritibus, Personis physicis et moralis, Potestate ordinaria et delegata (Coetus de Ritibus). The study group, composed of sixteen members, met from January 19-31, 1976 to revise the pertinent norms contained in Cleri sanctitati (CS) canons 1-15.12 Although these norms had the title De Ritibus orientalibus, many of them in fact also applied to the Latin Church. CS canon 15 stated: "Clerics and the faithful of any rite, the Latin rite by no means excluded, are bound by the prescripts of canons 1 §2, 4, 5, 7, 10, 11 §2, and 13." However, from the outset, the Coetus de Ritibus decided to suppress CS canon 15 since, as a general principle, the group did not want to establish norms for Latins in the Eastern Code. Just as the members worked to prepare a revised draft of CS canons 1-15, they hoped at the time that the corresponding Latin commission would elaborate a revised schema of the same canons for the Latin Church. Still, the Coetus de Ritibus knew full well that their proposed norms on ascription and transfer among the various Churches of the whole Catholic Church would implicitly involve the Latin Church. Since the expression "Church sui iuris" had not yet entered into the formulation of the Eastern canons, one can only conclude that the study group believed the new Eastern norms on ascription would implicitly regard the Latin Church, as one of those various Churches, simply because of the nature of the matter (ex natura rei). The study group's relator, Archimandrite Elias Jarawan, stated:
As for can. 15 of C.S., the consultors were all agreed on its suppression. Indeed, it appeared opportune to a majority of the consultors to avoid, everywhere that was possible, to give prescripts concerning Latins in the Eastern Code. All these prescripts ought to be incorporated in the Latin Code itself, those regarding ascription to the Latin Church as well as those concerning transfer from that great Church to an Eastern Church.
It is evident that the canons concerning Rites are general, and also involve the Latin Church, but, in themselves, they find their place more naturally in the CICO (Codex Iuris Canonici Orientalis), inasmuch as it applies to the various Churches, while in the Latin Code, valid only for the Latin Church, one can hope that the canons which are enumerated in C.S. 1-15, duly revised, will be introduced.13
Clearly, the Latin commission did not introduce such detailed norms, as is evident from only CIC canons 111–112. Now, given the mindset of the Eastern draftsmen that would avoid legislating for Latins regarding ascription and transfer from one Church to another, it is difficult to argue that CCEO canons 29-38 are Latin canons. Yet, as the Coetus de Ritibus indicated, the Eastern norms in this matter implicitly regard the Latin Church and that is true inasmuch as it is one of the twenty-three Catholic Churches united in the See of Rome.
1 - Ascription of Children to a Church Sui Iuris (CCEO c. 29)
CCEO canon 29 governs the ascription of children up to fourteen years of age and is divided into two paragraphs: §1 establishes a general rule regarding children presented for baptism by their parents, while §2 concerns specific cases of children of an unwed mother, of unknown parents or of non-baptized parents. CCEO canon 29 §1 parallels CIC canon 111 §1 but the norms do not mutually correspond. CIC canon 111 §1 states: "Through the reception of baptism, the child of parents who belong to the Latin Church is enrolled in it, or, if one or the other does not belong to it, both parents have chosen by mutual agreement to have the offspring baptized in the Latin Church. If there is no mutual agreement, however, the child is enrolled in the ritual Church to which the father belongs." In particular, while Eastern canon 29 §1 foresees that a child can be ascribed to the Church sui iuris of his or her mother if both parents agree, it has been argued that Latin canon 111 §1 does not seem to allow for the same in the case of the Eastern Catholic mother.14 Indeed, as will be seen from the Eastern canon's iter within PCCICOR, more was expressed and written on this point than perhaps any other subject regarding the Eastern norms on ascription.
In general, CCEO canon 29 §1 stipulates that a child under fourteen is ascribed by virtue of baptism to the Church sui iuris of the father. However, if only the mother is Catholic or if both parents agree in requesting it (si ambo parentes concordi voluntate petunt), the child can be ascribed to the Church of the mother. As will be seen, the insertion of this clause was consistently opposed within PCCICOR by Easterners who feared the diminishment, if not the disappearance, of the Eastern Catholics Churches sui iuris especially in the diaspora. To temper this fear, the norm makes an exception by way of particular law to provide special dispositions other than the general rule. CCEO canon 29 §1 states:
A son or daughter who has not yet completed fourteen years of age is ascribed by virtue of baptism to the Church sui iuris to which his or her Catholic father is ascribed; or if only the mother is Catholic, or if both parents are of the same mind in requesting it, to the Church sui iuris of the mother, without prejudice to particular law enacted by the Apostolic See.
Within PCCICOR, a first draft of this Eastern norm was proposed by the Coetus de Ritibus in its revision of CS canon 6, which stated: "Among the different rites, a person belongs to that one by whose ceremonies he was legitimately baptized." The study group wanted to make clear that ascription is decided not by baptism but, rather, by the parents' membership in a particular Church. Accordingly, the proposed draft stated: "By baptism itself, one is ascribed to the particular Church of the father (patris); if however only the mother is Catholic, to the Church of the mother."15 Since some consultors wanted to add, after patris, the words vel si ambo parentes consentiant, matris, the clause was added tentatively so that, as canon 10 §1 of the 1984 Schema canonum de constitutione hierarchica Ecclesiarum orientalium (1984 Schema), the norm now stated: "By baptism itself, one is ascribed to the Church of the father; if however only the mother is Catholic (or both parents consent), to the Church of the mother."16
During the denua recognitio of the 1984 Schema, canon 10 §1 was the subject of intense criticism on account of the insertion of the clause vel si ambo parentes consentiant. It was argued that permitting a child to be ascribed to the Church of the mother is against Eastern tradition, according to which a child is to be ascribed to the Church of the father. Then, the consultors maintained that, by allowing a child to be ascribed to the mother's Church, and they clearly intended the Latin Church especially in the diaspora, it would lead to the weakening and diminishment of the Eastern Catholic Churches. An excerpt from the proceedings of PCCICOR shows the extent to which the Latin Church was implicitly involved in the remarks made concerning canon 10 §1. They state:
1) Five consultative bodies declared themselves against the insertion of the clause "si ambo parentes consentiant" in the canon, emphasizing the fact that it is contrary to Eastern traditions, to the laws of the personal statutes in force in the East, to the mentality of the Eastern faithful and because it would lead to a weakening of the vitality and to an impoverishment of the Eastern Churches present in Western territories.
2) Three consultative bodies proposed a differentiated discipline for the East and the West, with the aim of protecting "the Eastern Churches that are a minority in a Latin area, or in a territory in which several Latin dioceses exist and operate, exercising a considerable influence on Easterners, Catholic and Orthodox." ....
3) A Latin episcopal conference, wishing in any case to favour the existence and blossoming of an Eastern Church in its territory, proposed that a possibility be opened up for a "lex particularis," different from that established in §1 or in cann. 111 and 112 of CIC.17
Essentially, there was a choice to be made either in favour of the prevailing Eastern tradition to ascribe a child to the Church of the father or in favour of the equal right of the father and mother to decide on the Church to which their child would be ascribed. The proceedings state: "On the table was the difficult choice between giving precedence to the primary rights of the parents, putting the husband and wife on the same level in this matter, and what is consistent with Eastern traditions and a rooted mentality, and perhaps, required for safeguarding the Eastern Churches."18 After several days of lively debate, the experts entrusted with the denua recognitio of the 1984 Schema could not come to a consensus regarding the insertion of the clause vel si ambo parentes consentiant. However, the secretariat indicated that a solution could be found if, while keeping that clause, the clause salvo iure particulari a Sede Apostolica statuto was added. The experts agreed (8 in favour, 2 against, 1 abstention: 11 present) and canon 10 §1 now stated: "By baptism itself, one is ascribed to the Church to which the father is ascribed; if however, only the mother is Catholic or both parents agree in requesting it, the Church to which the mother belongs, without prejudice to particular law established by the Apostolic See."19
As amended, canon 10 §1 subsequently became canon 28 §1of the 1986 Schema Codicis Iuris Canonici Orientalis (1986 SCICO).20 After the members of PCCICOR made their observations to the entire schema of the future Code, the Coetus de expensione observationum was entrusted with the review and revision. Regarding SCICO canon 28 §1, a first observation noted how the norm differed from CIC canon 111 §1 with respect to the possible ascription of a child to the Church of his or her Eastern Catholic mother. With no explanation, the Coetus simply replied that the same possibility exists also in the Latin canon. The observation, together with the study group's response, stated:
If the canon is compared with CIC can. 111, we note that CIC does not open the possibility of a transfer to an Eastern rite, while the Eastern Schema allows the possibility of a transfer to the Latin rite, if the mother, for example, is Latin. Indeed, in the case of a ritual difference between the two parents, the child will always be able to be baptized in an Eastern rite given that one of the two parents belongs to it.
Response: In CIC 111, there is the same possibility.21
At the same time, as was the case during the denua recognitio of the 1984 Schema, members of PCCICOR objected to the clause "or, if the parents agree requesting it," because it is contrary to Eastern tradition and since it would inevitably lead to the diminishment of the Eastern Catholic Churches especially in the diaspora. Even if the Latin Church was never named explicitly in the canon, one can almost certainly conclude from the observations that the Latin Church figured as a main protagonist in the context of the Eastern norm's discussion and the remarks that implied the impoverishment of the Eastern Catholic Churches would inevitably occur at the hands of another Church. The reported proceedings list the following reasons for the members' objections:
1) We absolutely refute the present text that gives the two spouses the right to ascribe the child to the rite of the mother. It is contrary to Eastern tradition. Moreover, in countries of the West, such easiness could, in the long run, lead to the suppression of our Church (1 member).
2) According to Eastern tradition, a child baptized in the Catholic or Orthodox Church is ascribed, even in civil registries, to the rite of the father. Once of age, he or she can ascribe themselves, servatis de iure servandis, to another rite. Can. 28 and can. 29 are fatal to our Eastern Churches. "They will condemn them, one day, in the West, to disappearance. (1 member).
3) In a definitive way, the clause will contribute to make the number of members of the Eastern Catholic Churches decrease, because the parents will opt for that Church which is geographically closer and more convenient for them....
4) This freedom will lack little to generate, at the heart of the home, discord and tension. The mother could try to impose her will on the husband and the Church to which the mother belongs could find an opening to pressure her to obtain ascription of the child to the Church to which she belongs. It seems wiser to opt for the Church of the father, a decision that is more consistent with the Eastern spirit. Law aims at the general good of the community and not to favour one community at the expense of another. If freedom is granted in this way to parents to decide on the rite of their children, would it not be necessary, then, to recognize the right of children once of age to choose the Church to which they want to belong? As for the particular law that we want to safeguard, namely, "without prejudice to the particular law enacted by the Apostolic See," it seems that it would not resolve eventual controversies and would also give rise to abuses (1 member).
5) According to the age-old tradition of the Eastern Churches and especially according to the mentality of the faithful, in marriage the wife always follows the rite of the husband (1 member).
Since the Coetus de expensione observationum saw no difference in these observations from those that prior study groups had considered, the group decided to confirm the previous decisions. The Coetus stated: "The proposals have been at the centre of the deliberations of prior Coetus. Their work, described in Nuntia 22, p. 24, can only be confirmed since the equality of the parents' rights is a self-evident fundamental principle. In particular situations, the final clause provides sufficiently."22
Before the Eastern Code was promulgated, members of PCCICOR met for its second plenary assembly in Rome from November 3-14, 1988. There were thirty-six members in attendance.23 Already on November 5th, ten members presented a motion to re-examine three canons, including SCICO canon 28. In proposing that a child must always follow the rite of the father, the members stated regarding the contested SCICO canon 28 §1: "The draft of these canons not only does not defend the flourishing of the Eastern Churches, but it will become a source of permanent dangers - especially in Western regions - to their survival."24 Obviously, the same issues were at play as had been made known to the previous study groups. As a result of the animated discussion that took place over several days, a majority of the members of PCCICOR voted in favour of supressing the clause aut, si ambo parentes concordi voluntate petunt in SCICO canon 28 §1.25 No further changes were made to the canon before the Schema novissimum was presented to the Holy Father on January 28, 1989. However, as part of some "last changes" made to the draft, the Holy Father himself decided to re-insert the clause aut si ambo parentes concordi voluntate petunt before the canon was promulgated as CCEO canon 29 §1.26
Given the iter of CCEO canon 29 §1, it is abundantly clear that the Latin Church is implied in its text and the context of the interritual matter it governs. If the Latin Church is not already implied by the nature of the matter, the Explanatory Note only confirms such a conclusion. Indeed, at times within PCCICOR, the Latin Church appears to be the only other Church sui iuris consultors and members of PCCICOR were worried about as they argued to safeguard Eastern traditions and to protect the Eastern Catholic Churches from inevitable impoverishment. Notwithstanding the importance of these things, the legislator decided to allow ascription to the Church of the mother if the parents mutually agree. In this way, the legislator has meant to underscore in CCEO canon 29 §1 the fundamental equality of spouses in making the choice regarding their child's ascription. Now, some would argue that the same is foreseen, but apparently only for the Latin mother, in CIC canon 111 §1. If the legislator really wanted the provisions of the Codes to be mutually aligned, should CIC canon 111 §1 not be interpreted also to allow a child to be ascribed to the Church of an Eastern mother? Although such an interpretation could be implied, an authentic interpretation of CCEO canon 29 §1 would be helpful here as a doubt has been raised in that specific context. Moreover, CCEO canon 29 §1 is an Eastern norm and, as seen from the outset, the draftsmen did not want to legislate directly for Latins in the area of ascription. However, it is clear that, in an interecclesial marriage (Latin-Eastern), an Eastern mother could now invoke CCEO canon 29 §1to have her child ascribed to her Eastern Church if her husband agrees. Then, given the aids to canonical interpretation in CIC canons 17 and 19, it could also be argued that, as a later norm established for similar circumstances, CCEO canon 29 §1 does clarify the doubt and otherwise fill the legislative gap in CIC canon 111 §1.
Therefore, in accord with CCEO canon 29 §1, a child who is not yet fourteen years old is to be ascribed to the Church sui iuris of his or her father. Being an Eastern norm, the reference to "Church sui iuris" here intends one of the Eastern Churches. If only the mother is Catholic, the child is to be ascribed to the Church sui iuris of the mother. Here, again, "Church sui iuris" means Eastern Catholic Church. However, where the Catholic parents mutually agree, they can opt to ascribe their child to the Church sui iuris of the mother. Since this option presupposes an interecclesial marriage, the expression "Church sui iuris" implicitly intends either another of the Eastern Catholic Churches or even the Latin Church. The latter possibility is what caused so much debate among the consultors and members of PCCICOR. However, with the clause salvo iure particulari a Sede Apostolica statuto, the legislator has allowed for particular law (ius speciale and ad tempus) that could be established to handle circumstantiated perils to Eastern Catholic traditions or Churches caused by the provisions of CCEO canon 29 §1.27
With regard to CCEO canon 29 §2, its provisions are both new and unique to the Eastern legislation. They establish:
If, however, a person who has not yet completed fourteen years of age:
1° is born of an unwed mother, he or she is ascribed to the Church sui iuris to which the mother belongs;
2° is born of unknown parents, he or she is ascribed to the Church to which belong those to whose care he or she has been legitimately entrusted; if, however, it is a case of an adoptive father and mother, §1 is to be applied;
3° is born of non-baptized parents, he or she is ascribed to the Church sui iuris to which belongs the one who has undertaken his or her education in the Catholic faith.
Within PCCICOR, the Coetus de Ritibus prepared a different first draft of this norm. Canon 7 §2 of the proposed norms stated: "A child born after the father's death and an illegitimate child, unless acknowledged publically by the father, belongs to the Church of the mother; however, deserted and abandoned children are ascribed to the Church of the adoptive parents or guardians or, in their absence, to the Church of the Hierarch to whom those entrusted with their care are subject."28
The identical formulation became canon 10 §2 of the 1984 Schema.29 During the denua recognitio of canon 10 §2, consultative bodies made a number of redactional observations which the secretariat of PCCICOR considered and then proposed a new formulation. The expert study group agreed "to accept the observations regarding §2, whose text is simplified along the lines proposed by the secretariat." Canon 10 §2 now stated: "A child born of an unwed mother is ascribed to the Church to which the mother belongs; a child born of unknown parents is ascribed to the Church to which belong those to whose care he or she has been legitimately entrusted; if, however, it is a case of an adoptive mother and father, §1 is applied."30
Canon 10 §2 subsequently became SCICO canon 28 §2.31 When the 1986 Schema was reviewed by the members of PCCICOR, the Coetus de expensioneobservationum reformulated SCICO canon 28 §2 into three numbers. The added third number had been SCICO canon 29 §2 and was more logically incorporated here. As reformulated, SCICO canon 28 §2 was already identical to the promulgated CCEO canon 29 §2.32
To offer a commentary on CCEO canon 29 §2, it constitutes a part of Eastern law that, barring an authoritative intervention on the part of the legislator, does not regard the Latin Church directly unless, in individual cases, the Eastern norms are invoked to fill legislative gaps regarding the same matters in the Latin Church (CIC c. 19).33 That does not exclude, however, that CCEO canon 29 §2 can implicitly involve the Latin Church. One presumes that the unwed mother, to whom CCEO canon 29 §2, 1° is addressed, is Eastern and therefore that her Church would be one of the Eastern Catholic Churches. However, besides the Eastern Catholic Churches, the Latin Church can be implied by the expression "Church sui iuris" in either numbers 2 or 3 of CCEO canon 29 §2. To protect the local Eastern Church, the Coetus de Ritibus had proposed to have children born of unknown parents, but raised by Latin missionaries or religious, ascribed to the Church of the Eastern hierarch to whom they were subject. Since their formulation of the norm never survived within PCCICOR, it follows that children born of unknown or non-baptized parents, but raised in an Eastern region by missionaries, religious or other faithful of the Latin Church, would be ascribed to the Latin Church. Evidently, that would be so even if the children were baptized according to an Eastern rite. This interpretation is also confirmed by the Coetus de expensione observationum in the context of an observation made regarding SCICO canon 29 §2 (now CCEO c. 29 §2, 3°). One member of PCCICOR inquired: "We wonder if, when the educator in the Catholic faith is of the Latin rite, the newly baptized must be ascribed tout seul to the Latin rite." To this question, the expert study group simply responded: "It is obvious."34 To sum up, then, while the context of the CCEO canon 29 §2 certainly foresees ascription in most cases to an Eastern Catholic Church sui iuris, it does not exclude ascription to the Latin Church in the other cases mentioned.
2 - Ascription of Persons Who Are at Least 14 Years Old (CCEO c. 30)
Regarding the ascription of anyone who has completed fourteen years of age, both the Eastern and Latin Codes correspond in establishing the general rule that the person is free to choose any Church sui iuris to which he or she is ascribed by virtue of baptism. Like CIC canon 111 §2,35 CCEO canon 30 provides:
Anyone to be baptized who has completed the fourteenth year of age can freely select any Church sui iuris in which he or she is ascribed by virtue of baptism received in the same Church, with due regard for particular law established by the Apostolic See.
Within PCCICOR, the Coetus de Ritibus proposed the first draft of this norm as provisional canon 12. It stated: "Non-Christians receiving baptism can choose any particular Church." The Relator provided the following rationale:
This is substantially can. 12 of C.S., but presented in a different formulation.... The problem was raised regarding non-Christians who come to the Catholic faith thanks to the preaching of Latin missionaries in Eastern territories. In principle, the new Christians are free to choose the Church to which they will belong. However, practically, are they not under the influence of those on whom they are dependent for their belonging to the faith? One would normally find that they choose to belong to the Church of these missionaries. Still, is it not more normal and more in the ecumenical spirit that these new Christians be incorporated as members of their local Eastern Catholic Church? To allow them full liberty to choose a Church other than the local Church, does that not uproot them from their culture and their own tradition?
To reconcile this freedom of choice of a particular Church with what would normally be done, certain consultors had proposed adding, at the end of the canon, an exhortation addressed to these new Christians to choose the Eastern particular Church in the majority in the region where they live.
The study group deemed that it is up to missionaries themselves to direct the free choice of these new Catholic Christians towards the local Eastern particular Church in the majority in the region.36
As a result, the Coetus proposed a text addressed to missionaries and sent it to another study group that was dealing with canons regarding the evangelization of peoples. In fact, the text would become part of CCEO canon 588.37 Almost identical to the promulgated text, it read: "However, care should be taken lest anything should be recommended that might prevent their ascription in the Church more appropriate to their culture."38
As for provisional canon 12, it became canon 15 of the 1984 Schema, which read: "Non-Christians receiving baptism can choose any Church sui iuris."39 During the denua recognitio of the 1984 Schema, consultative bodies proposed that the formulation of canon 12 be replaced with that of CIC canon 111 §2. The expert study group agreed so that canon 15 now read: "Anyone to be baptized who has completed the fourteenth year of age can freely choose any Church sui iuris to which he or she is also ascribed by virtue of baptism." Canon 15 subsequently became SCICO canon 29 §1.40 Among the observations received from members of PCCICOR regarding the 1986 Schema, only one concerned SCICO canon 29 §1. The member noted that its formulation could be improved so as to avoid the possibility that a person could be baptized in one Church only to choose to be ascribed in another. The Coetus de expensione observationum agreed by replacing the words "to which he or she is also ascribed by virtue of baptism" with "to which he or she is ascribed by virtue of baptism received in that same Church."41
At the second plenary assembly of PCCICOR, the motion that ten members had made to require a child to follow the rite of the father also included a motion to reconsider the age of fourteen for the choice of a rite. In certain Middle Eastern countries, that disposition would run counter to the civil law (personal statutes), which permit such a choice only when one reaches the age of majority. Eventually, to resolve this question, a member proposed that the clause salvo iure particulari a Sede Apostolica statuto be added at the end of SCICO canon 29 §1 in order to overcome the problem raised by the age limit.42 A majority of the members of PCCICOR voted in favour of the proposal and no further amendments were made before the Eastern norm was promulgated as CCEO canon 30.
When CCEO canon 30 and CIC canon 111 §2 are taken together, it is clear that they establish the same general rule for the entire Catholic Church. Anyone to be baptized who is fourteen years of age can freely select the Church sui iuris, Eastern or Latin, to which he or she is to be ascribed by virtue of baptism received in that same Church. The exception clause in the Eastern canon was added ultimately to accommodate certain Eastern regions where civil law requires a higher age limit. The only interpretative difficulty in this area arises, not on account of CCEO canon 30, but because of the other Eastern canon related to it. Characteristic of the Eastern Code, CCEO canon 588 states:
Catechumens are free to be ascribed to any Church sui iuris, in accord with the norm of can. 30; however, care should be taken (caveatur) lest anything should be recommended that might prevent their ascription in the Church sui iuris more appropriate to their culture.
Since CCEO canon 588 is an Eastern canon, one has to presume that it is addressed only to the Eastern Catholic Churches. However, given the evident interecclesial context and the Explanatory Note, it is clear that the expression "Church sui iuris" also includes the Latin Church. Therefore, when dealing with catechumens, authorities of one Eastern Catholic Church must abide by CCEO canon 588 in not recommending anything that might prevent their ascription to another Eastern or even the Latin Church. However, does CCEO canon 588 qualify CIC canon 111 §2 just as it does CCEO canon 30? Eastern canon 588 makes no reference to CIC canon 111 §2 nor does it seem to be addressed to Latin authorities. Yet, as mentioned above, the Coetus de Ritibus proposed the draft of CCEO canon 588 mainly because of Latin missionaries in Eastern territories. Then, during the denua recognitio of the same draft, a consultative body proposed that the caveatur clause be replaced with the following, more positive formulation: "However, it is recommended that a catechumen be ascribed to the rite that is more appropriate to his or her culture." The expert study group replied: "This is not accepted and we remain in line with what is referred to in the Praenotanda to the schema, p. 5: namely, it regards an 'admonition made to missionaries of any rite to safeguard fundamental human rights.'"43 That would seem to imply that missionaries of any rite, including the Latin rite, are bound by CCEO canon 588. However, the unique Eastern canon 588 is not addressed to the Latin Church nor does it oblige it expressly. Without the intervention of the legislator to apply CCEO canon 588 directly also to the Latin Church, the Eastern norm could still be invoked in individual cases, by way of CIC canon 19, to fill the Latin Code's legislative gap in the same context of choosing one's Church of ascription.
3 - Delict of Inducing Someone to Transfer to Another Church Sui Iuris (CCEO c. 31)
Eastern canon 31 basically repeats CS canon 7, which stated: "No one is to presume to induce in any way any faithful to assume another rite." According to CS canon 15, that norm also obliged Latins. As mentioned earlier, the Coetus de Ritibus was deliberate in not proposing ascription norms for the Latin Church. Given that the Latin Code has no parallel norm, CCEO canon 31 is unique to the Eastern Code. It establishes: "No one is to presume to induce in any way the Christian faithful to transfer to another Church sui iuris." Does the canon nevertheless bind the Latin faithful and does it do so because of the expression "Church sui iuris" or for some other reason?
To answer these questions, a review of the canon's legislative history within PCCICOR is a helpful, first step. The Coetus de Ritibus proposed the first draft of this Eastern norm as canon 6 among its provisional canons regarding the Eastern rites. The study group's relator stated: "Respect for the prescript addressed to each of the faithful to preserve his/her own rite obliges him/her, as a consequence, not to incite someone to abandon his/her rite in order to adopt another. The group believed it good to repeat canon 7 of CS here, retaining it as is...."44 Canon 6 became canon 22 of the 1984 Schema.45 During the denua recognitio of the 1984 Schema, the expert study group stated: "The fact that this norm from the law in force (can. 7 of CS) has been retained in the schema has encountered favorable judgment on the part of many and received a particular placet." At the same time, however, the experts modified the norm's wording to state: "No one is to presume to induce in any way the Christian faithful to transfer to another Church sui iuris."46 Amended canon 22 was already identical to the promulgated CCEO canon 31.
To comment on CCEO canon 31, it is a unique norm that is certainly binding on Eastern Catholics. To give one example in illustration of the prescript, no Maronite Catholic is to induce another Catholic, of the Melkite or even the Latin Church, to transfer to the Maronite Church. To apply the sense and meaning of the Explanatory Note, the Latin Church is implicitly involved, by analogy, as one of the Churches sui iuris. However, in the case of CCEO canon 31, the Eastern norm also expressly obliges the Latin faithful by virtue of CCEO canon 1465, that establishes the penal sanction and explicitly names the Latin Church with respect to any violation of the delict mentioned in CCEO canon 31. Eastern canon 1465 states:
A person who, ascribed to any Church sui iuris, including the Latin Church, and exercising an office, a ministry or another function in the Church, has presumed to induce any member of the Christian faithful whatsoever to transfer to another Church sui iuris contrary to can. 31, is to be punished with an appropriate penalty.
Therefore, while CCEO canon 31 does not bind Latin Catholics in and of itself or because it contains the expression "Church sui iuris", it does oblige Latin Catholics because of CCEO canon 1465, which explicitly refers to persons of "any Church sui iuris, etiam Ecclesiae latinae." Clearly, it effectively includes Latins among those persons who could have violated CCEO canon 31. For example, then, no Latin Catholic is to induce another Catholic, of the Maronite or Melkite Churches sui iuris, to transfer to the Latin Church.
4 - Transfer to Another Church Sui Iuris (CCEO c. 32)
Both the Eastern and Latin Codes establish the general rule that, without the permission of the Roman Apostolic See, no one can transfer to another Church sui iuris. Although CIC canon 112 §1, 1° makes no explicit mention of validity, the permission is a true licentia and only after one will have obtained it (obtinuerit) will the transfer occur.47 If there were still any doubt, one would only need to have recourse, by way of CIC canon 17, to the parallel text in the later Eastern norm which explicitly speaks of validity.48 Parallel to Latin canon 112 §1, 1°, CCEO canon 32 §1 states: "No one can validly transfer to another Church sui iuris without the consent of the Apostolic See." Given that the Codes establish mutually corresponding norms, the transfer among the Churches sui iuris, for which the Holy See's consent is necessary, must include the Latin Church. It is evident from the nature of the matter and the Explanatory Note only affirms such an interpretation.
The only problem regarding the meaning to be given the expression "Church sui iuris" arose in connection with §2 of Eastern canon 32.49 It states: "In the case of Christian faithful of an eparchy of a certain Church sui iuris who petitions to transfer to another Church sui iuris which has its own eparchy in the same territory, this consent of the Apostolic See is presumed, provided that the eparchial bishops of both eparchies consent to the transfer in writing." As no norm parallel to CCEO canon 32 §2 was contained in CIC canon 112, the Secretariat of State issued a special rescript ex audientia Sanctissimi dated November 26, 1992. The rescript stated:
According to canon 112 §1, 1° of the Code of Canon law, anyone is forbidden, after receiving baptism, from being ascribed to another ritual Church sui iuris unless consent for it is given by the Apostolic See. Concerning this, having accepted the opinion of the Pontifical Council for Interpretation of Legislative Texts, the Supreme Pontiff John Paul II has established that consent of that kind can be presumed whenever the Christian faithful of the Latin Church have petitioned for the transfer to another ritual Church sui iuris, which has an eparchy in the same territory, provided the diocesan bishops of both dioceses consent to it in writing.50
Since these Eastern and Latin norms effectively appeared to be fully reciprocal, a majority of canonists argued that, for transfers to be valid and the Holy See's consent presumed, Latins can transfer to an Eastern Church and Easterners can transfer to another Church sui iuris, including the Latin Church, if the Churches have dioceses (eparchies) in the same territory and the bishops concerned consent in writing.51 However, in 1993, Marco Brogi, who was then Undersecretary of the Congregation for Eastern Churches, argued that, while the rescript allowed for transfers from the Latin to an Eastern Catholic Church sui iuris, a Latin bishop who intends to receive an Easterner who wants to transfer to the Latin Church could not invoke it.52 Stressing the autonomous nature of each code, Brogi would not interpret any Eastern norm to concern the Latin Church unless it were explicitly named. On the basis of this restrictive interpretation, CCEO canon 32 §2 could only be invoked in cases of Easterners transferring from one Eastern Church to another Eastern Church. Consequently, anyone wishing to transfer validly from an Eastern Catholic Church to the Latin Church would still need to petition the Holy See. For many years, this has been the position and the practice followed at the Congregation for Eastern Churches. Given the Pontifical Council's Explanatory Note, this practice may well change but, before any wothwhile commentary regarding CCEO canon 32 §2 can be made, a review of its legislative history is indispensable.
Within PCCICOR, the Coetus de Ritibus proposed the first draft of Eastern canon 32, to replace CS canon 8, and it appeared as canon 8 of the 1976 provisional canons on the Eastern rites.53 Draft canon 8 stated: