Synodal games seek to bully Bishops into public submission

Cathcon- an important article two days away from the opening of the Fifth and last Synodal Assembly in Germany where they will be voting on ten basic texts (more about them shortly).

It describes how dubious procedure is being followed to seek to deny Bishops (and other) a secret ballot in the hope that they can be bullied either into abstention or a vote in favour of dubious Synod principals.

Never has it been so clear that the Synodal process is all about politics and nothing to do with the Holy Spirit.  Whatever their decisions, they cannot be taken up by the wider Catholic Church as the reformers in Germany would love.   At the time of the Council, the Rhine flowed into the Tiber through the influence of a coterie of German bishops and theologians including Ratzinger.  It cannot be allowed to happen again.  The fate of the Church cannot be dependent on a German Interpretation Commission of doubtful legitimacy, shared by the wider process.

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When unacknowledged powerlessness makes you seducible

When voting in the Synodal Assembly of the Synodal Path, roll-call votes have priority over secret votes.  But is that legal?  Notes before the 5th Plenary Assembly

By Georg Bier

In a few days, the Synodal Path will meet for its last plenary session.  Among other things, ten basic and policy action texts are to be voted on.  As Beate Gilles, Secretary General of the German Bishops' Conference (DBK) said at the final press conference of the Spring General Assembly, the relationship between secret and roll-call votes could again become an issue.

At the IV General Assembly of the Synodal Path, the basic text "Living in successful relationships" failed to achieve the required two-thirds majority of the bishops present.  There was great resentment about this, also because the bishops who voted "No" had not made themselves known in advance.  The Synod Member, zu Eltz announced that he would request roll-call votes in the future and asked for clarification as to whether a request for a roll-call vote could be "counter-ruled" by a request for a secret ballot.  The following day he made a corresponding motion on the Rules of Procedure (GO).  The three-person Interpretation Commission chosen for such occasions met but without its member Archbishop Schick – the only proven (ecclesiastical) legal expert in the commission – who did not take part in the Fourth Synodal Assembly. After the consultation, the members who were present of the Interpretation commission, the Synod member, Hemel and the Synod member, Wieland, announced their assessment. The Synod member, Hemel first thanked the Synod member, Kreuter-Kirchhof “expressly” for their external advice (which suggests a significant influence of their advice).  He then explained that the members of the commission “saw unanimously that roll-call voting is given higher priority than secret voting”.  Section 6(6) of the GO states that “a vote can be taken by name upon request, without prejudice to a request for a secret ballot”.  There was "a hierarchy in the statement." With reference to this vote, subsequent applications for secret votes were unsuccessful.

Soon after the end of the Fourth Synodal Assembly, the Würzburg canon lawyer, Martin Rehak worked out with desirable clarity in another, perhaps not very prominent place that the information provided by the Interpretation Commission is based on an untenable assessment of the legal situation.  The positioning of the DBK general secretary at the final press conference gives reason to expect that the 5th general assembly will also adhere to what the Synodal Assembly allegedly "adopted" last time. It is therefore appropriate to explain the events and the legal situation again.

Questionable

First of all, the interpretation process is questionable: the Commission apparently involved a person who did not belong to it in the consultation on the interpretation.  This also violates the rules of procedure if this person was not involved in the final "unanimous" decision-making process.  According to Section 7 (4) GO, it is up to the commission to make a recommendation.  It is contrary to this requirement to involve persons other than those elected by the meeting in any way in the decision-making process.  Otherwise, a Commission would not have to be specially elected.  It would suffice if the Presidium ad-hoc asked synodal members who seemed suitable for an assessment.

Considerable doubts exist as to the impartiality of the interpretation commission.  The Synod member, zu Eltz was already concerned that the request for a roll-call vote could be "thwarted" by a request for a secret vote, marking the secret vote as a request of dubious value.  The Synod member, Hemel opened their statement with the "preliminary statement: white smoke!" and at the end was "happy, together with the assembly, with our Commission, that the statutes have regulated this in advance with great foresight".  Apparently the members of the Commission had a clear idea of what interpretation they and the Assembly wanted.  In any case, impartiality looks different.

The Synodal Assembly, which is often referred to as "sovereign", was passed over: According to § 7 para. 4 GO, the Interpretation Commission has to submit "decision recommendations" for the assembly.  But it didn't decide here.  The recommendation was not voted on.  Rather, the moderator thanked the Commission, then stated that "we now have it clear: Names come before secret ballots" and went straight to the next item on the agenda. Notwithstanding this, it was repeatedly stated later that agreement had been reached on the issue.

Misinterpretation of the Rules of Procedure

Such an approach is problematic enough.  The obviously incorrect interpretation of the Rules of Procedure weighs much more heavily.  For the Interpretation Commission, Section 6 (6) of the GO results in a “prioritization” in favour of the roll-call vote – it “can be voted on by name upon request, without prejudice to a possible request for a secret ballot”. The conjunction “without prejudice” should therefore mean that the roll-call vote must not be damaged by the request for a secret ballot. This is absurd:

According to the dictionary, "without prejudice" means: "without harm to ...", "without disadvantage for ...", "without making any compromises regarding ...", whereby the object, which must not suffer any disadvantage, is connected to "without prejudice" by a genitive construction. For example: "Without prejudice to their theological expertise, the members of the Commission have presented a legally untenable interpretation of the Rules of Procedure." That means (and is also commonly understood in this way): that the interpretation is wrong does not call into question the theological expertise of the interpreters.  No one would think of concluding that theological reputation is being jeopardized by inadequate interpretation of the law.  Another example: "The advice of the lawyer was - without prejudice to their legal expertise - incorrect in the matter".  Of course, this does not mean that the incorrectness of the advice is "higher priority" than the expertise but says the exact opposite.

In legal terms, "without prejudice" is used in the same sense.  For secular law, instead of many individual documents, a reference to the manual on legal formalities published by the Federal Ministry of Justice may suffice, where Paragraph 87 states: "Should other legal norms be applicable in addition to the respective provision, it can be formulated: 'without prejudice to the rights of third parties ' or 'without prejudice to the provisions on'.  Example: Permission is granted without prejudice to the private rights of third parties.  This means that civil law defence claims by third parties are not ruled out by the administrative granting of the permit." Further information is provided by an article by Johanna Wolf entitled: "Without prejudice" - On the practical understanding of a popular word in German and European standards and contracts (in: Juristenzeitung 67 [2012] 31-35).  As far as the relationship between legal rules is concerned, the meaning of the conjunction is always clear: "The regulation in which the word occurs does not affect the validity of the regulation mentioned in the genitive."

For the same meaning of ecclesiastical legal language, Canon 861 CIC: According to this, the deacon is (also) the ordinary minister of baptism, but without prejudice to Canon 530, according to which baptism in the parish is primarily the responsibility of the pastor. This means: a deacon may baptize, but that does not change the precedence of the pastor.

Exactly the same is the case with regard to § 6 Paragraph 6 GO.  The interpretation of the Interpretation Commission runs counter to the clear meaning of the conjunction "without prejudice" and is therefore simply excluded.  Requests for a roll-call vote therefore do not affect the request for a secret ballot.  According to the clear wording of the regulation, “prioritised” is the request for a secret ballot.  The GO “hierarchized” in its favour. The following applies: secret votes come before named voted.

Misinterpretation of the Statues

Anything else would also be incompatible with the statutes of the Synodal path, which as such take precedence over the rules of procedure (Article 14 statutes, § 17 GO).  Article 11 Paragraph 4 of the statute stipulates that voting is either public or secret.  The roll-call vote is that special case of public voting in which the vote of each individual person is verifiably documented.

There is a rule-exception relationship with the (basic) rule: "Voting is public". The exception is: "Sometimes there is no public voting". The exception is intended to protect when the application of the rule can become problematic. For this reason, the statute considers secret ballots to be exceptionally necessary in two cases: when it comes to personnel issues or when a minority does not want a public vote. Where the minority is politically located or for what reason they request a secret ballot is immaterial as of right. It is already clear from this: If five people request a secret ballot, this request must be followed.

This would be even clearer if the Statutes said: "At the request of at least five people, a secret vote is to be taken".  Instead, there is not quite clever talk of “votes that can be held secretly at the request of at least five members of the synodal assembly”.  Nevertheless – as Rehak correctly explained – what is meant is clear from the point of view as well as from the context: “can” does not indicate that the protection of minorities is at the discretion of the Synodal Assembly. "Can" is rather to be read as "an expression of the authorisation to move away from the principle of public voting in favour of secret voting in the event of a request by at least five members."

Absurd consequences

The Fourth Synodal Assembly showed the absurd consequences of not observing this.  The moderation team treated the request for a secret vote by five people as a request for a rule of procedure and put it to a vote (which was inadmissible because a request for a secret vote is not provided for in the exclusive list of possible requests for the Rules of Procedure in Section 5 (3) GO).  The “proposal motion” clearly missed the simple majority.  If this procedure were in accordance with the Statutes and the Rules of Procedure, the majority could block any request for a secret ballot. The protective purpose of the exception would obviously have been undermined, and the exception would not have had to be standardised in the Statutes.  The fact that it was standardized makes it clear that the concerns of a minority should be protected.

Law before politics

It follows: If the Statutes and Rules of Procedure are applied correctly, a minority of at least five people can enforce a secret ballot.  That may be regretted.  It can perhaps even be complained by a majority that the priority of the secret ballot allows those Synod members who do not wish to agree to a proposed text (not just the bishops among them) to remain covert rather than show their colours.

However, that does not justify bending the law, even if it “only” occurs here in the form of rules of procedure.  The General Secretary of the German Bishops’ Conference (DBK) and the DBK chairman, Bishop Georg Bätzing, explained at the aforementioned press conference that the statutes and rules of procedure had weaknesses - which, however, does not apply to the clearly regulated relationship between roll-call and secret voting.  However, it's one thing to regret the legal position and another to bend it with "interpretations" unworthy of the name.  Rather, this is an expression of precisely that lack of legal culture that church members (e.g. bishops) reliably accuse church authorities (e.g. also the Apostolic See) as soon as they experience themselves as the plaything of arbitrary application of the law.

What is it really about

How could it proceed?  According to Rehak, the Synod Presidium could use the time until the next Synodal Assembly to bring about a correction of the wrong interpretation of the law and to declare the clear priority of a requested secret vote for the next general assembly. If this does not happen, the gathering could show itself sovereign and ensure the observance of the law.  It remains to be seen whether that will happen.

As things stand, numerous members of the synod apparently see the roll-call vote as the only chance to get the bishops to disclose their position, possibly with the expectation that conflict-averse bishops might prefer an abstention to a clear “no” in this case.  Since abstentions are not counted due to the vote counting variant decreed by the Synod Presidium, the bishop's quorum would be easier to reach. The laity could continue to delude themselves into having advocated reforms with the Bishops.  They overlook the fact that they gain nothing.  Bishops who abstain and thus indirectly enable the acceptance of texts could then nevertheless declare that they had not agreed and therefore had no reason to implement recommendations in their Diocese.  Bishop Bätzing specifically reminded of this: "None of the resolutions of the Synodal Path has legal force of its own accord unless it is converted into law by a bishop".

Conversely, those who are less open to change may favour secret ballots because they believe—perhaps not without reason—that anonymity can give some bishops the courage to vote against and encourage proposals to fail.

The latter can be regretted out of concern for the future of the Church in Germany.  But church reforms are not promoted by bending the law for their sake and practicing that arbitrariness that church hierarchs are rightly accused of and which should at least be made structurally more difficult for the future.  Anyone who would like to do this honestly despite poor prospects should not show themselves receptive to questionable expedients if necessary.  Such seducibility out of unacknowledged powerlessness did more damage to the cause than a voter defeat.

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