Posted by from OCANEWS.org on 5/17/2009, 2:07 pm, in reply to "AOCA Chancellors Synodal Decisions are "Invalid", "Inapplicable", "Inconsistent""
Board Administrator
May 13, 2009
Dear Saidna PHILIP, Members of the Local Synod and Members of the
Board of Trustees,
Christ is Risen!
We have been requested by several members of the Board of Trustees, as
Chancellors, to give our Opinion regarding the February 24, 2009 decision of the
Holy Synod of Antioch.
Enclosed is that Opinion. In reaching that Opinion, we have spent many hours
examining the Patriarchate Constitution and Bylaws, and importantly the
Resolution of the Holy Synod of Antioch irrevocably granting our Archdiocese
Self-Rule, as well as our Archdiocese Constitution.
If you have any questions, please feel free to call us.
In Christ,
_____________
Robert A. Koory
_____________
Charles R. Ajalat
OPINION OF THE CHANCELLORS REGARDING THE
DECISION OF THE HOLY SYNOD OF ANTIOCH OF
FEBRUARY 24, 2009
As the Chancellors for the Antiochian Orthodox Christian Archdiocese, we have
been asked by several members of the Board of Trustees for our opinion on the legal effect of the Resolution of the Holy Synod of Antioch of February 24, 2009. Under the Constitution of the Self-Ruled Antiochian Orthodox Christian Archdiocese of North America, the Chancellors, while appointed by the Metropolitan Primate with the consent of the Board of Trustees, are the attorneys for the Archdiocese. As such, it is our obligation to respond to a request for legal opinions from the Primate, members of the Local Synod, members of the Board of Trustees or the General Assembly of the Archdiocese.
In doing so for this opinion, we have considered the Resolution of the Holy Synod
of Antioch granting self rule to the Archdiocese of North America, the Constitution and Bylaws of the Patriarchate of Antioch, the Articles of Incorporation of the Self-Ruled Antiochian Orthodox Christian Archdiocese of North America as signed by Metropolitan PHILIP and filed with the State of New York, the Constitution of the Self-Ruled Antiochian Orthodox Christian Archdiocese of North America as passed in Pittsburg, PA and approved by Metropolitan PHILIP, prior opinions of the Chancellors pertaining to Self-Rule that have been approved and published by the Archdiocese, statements pertaining to Self-Rule as proffered by Metropolitan PHILIP, the April 24, 2009 Decision of the Local Synod, and, of course, the Decision of the Holy Synod of Antioch of February 24, 2009
I. THE FEBRUARY 24, 2009 DECISION OF THE HOLY SYNOD APPEARS TO BE INVALID.
In considering whether the decision of the Holy Synod of Antioch is binding upon
the Self-Ruled Antiochian Orthodox Archdiocese of North America and. has any effect on the status of the Diocesan Bishops, one must look first to whether the decision is a valid decision. No person or organization can claim that there must be allegiance to a decision that was not properly made in the first instance. Moreover, a decision not properly made cannot be ratified or approved since if it was not properly made there is no decision to approve or ratify. This issue has been raised by others and needs to be addressed as a preliminary matter.
A. There Does Not Appear to Have Been the Required Quorum.
According to the official translation of the February 24 decision, only nine
members of the Holy Synod were present. The Metropolitans of the Archdioceses are the members of the Holy Synod of Antioch. Patriarchal Constitution, par. 7.
The Patriarchal Constitution calls for the Holy Synod to meet in two sessions,
one to be held in the first half of October and the second around Pentecost of each
year. It may meet pursuant to a call by the Patriarch or a written request by three
members of the Synod giving the reasons therefore. Patriarchal Constitution par. 9.
The sessions of the Holy Synod are valid if attended by the majority of its members
unless the regulations provide otherwise. Id. 13. ByLaws, par. 13 Decisions are made by a majority of those present at the meeting. Patriarchal Constitution par. 16; ByLaws par.16.There is apparently a question as to whether the appropriate call ever took place.
Pursuant to the Patriarchal Constitution and ByLaws, it appears that the February
24th session of the Holy Synod would not have been valid and any decisions made by such a gathering would have no force or effect. Moreover, it cannot be made "valid" by subsequent agreement by those not in attendance since the Patriarchal Constitution dictates that the decisions are made by a majority of those present at the meetings. Id.16
.
B. There Does Not Appear to Have Been the Required Two-Thirds Vote.
Article 51 of the Constitution (The Fundamental Canons of the Greek Orthodox
Patriarchate of Antioch) states: "These canons may be amended only by a two-thirds
majority vote of the members of the Holy Synod." Such a major structural change of
making diocesan bishops auxiliary bishops would seem to be a matter that can only be done by amendment of the Patriarchal Constitution. The Patriarchal Constitution may well not even give authority to handle such matters by a modification of the bylaws. The Bylaws of the Patriarchate, as is typical, involves only generally procedural matters implementing the Constitution. The Patriarchal Bylaws are only "to define the work of the Synod, the number of departments, as well as the authority of such departments and the conducting of their meetings." Patriarchal Constitution art. 16. The subject matter of the February 24, 2009 decision is not such a matter. Further, it is reasonable to assume that in such an important amendment of the Bylaws, as with the Patriarchal Constitution, notwithstanding any other provision, a two-thirds vote would be required, ie. 14 members necessary to amend the Bylaws. There is no showing that the proposed amendment received an affirmative vote of 14 members of the Holy Synod and therefore would not be valid.
In any event, assuming the two-thirds requirement, to constitute a proper quorum
for the amendment of a bylaw, there would have to be at least two thirds of the
members of the Holy Synod of Antioch present. It appears there was not a quorum
present and therefore the action was invalid for that reason also.
C. The Decision Appears to Be Invalid, But If It Were Valid, It Is
Inapplicable.
It would appear therefore that for significant procedural reasons, the February
24th decision would not be valid and therefore is not binding upon any archdiocese in
the Patriarchate and would have no effect on the status of bishops in North America.
It would also follow that one cannot submit obedience to an invalid decision. For other additional reasons, as set forth below, even if the decision were valid it would not apply to the Self-Ruled Archdiocese of North America.
II. ASSUMING ARGUENDO THAT THE DECISION IS VALID, IT DOES NOT APPLY TO THE ARCHDIOCESE OF NORTH AMERICA.
If the so called February 24th decision is a valid decision of the Holy Synod of
Antioch, there still remains the question as to whether it has any application to the SelfRuled Archdiocese of North America. While there are numerous archdioceses whose respective metropolitans sit on the Holy Synod and all receive their ecclesiastical authority from a praxis issued by the Patriarchate, only one archdiocese, North America, has been granted irrevocably self-rule by a resolution of the Holy Synod of Antioch.
While there may be debate as to whether, based upon the record, the decision of
February 24th is a valid decision, there can be no debate that the decision can not have been intended to apply to the Self-Ruled Archdiocese nor to affect or negate the October 2003 Resolution of the Holy Synod of Antioch granting the North America Archdiocese self rule. That is apparent for several reasons.
A. There Does Not Appear to Be Any Intent to Have the Decision Apply.
1. There Was No Intent Previously for Articles 75-79 to Be Binding on the
Archdiocese.
In considering whether a new Bylaw amendment affects the North America
Archdiocese, a good starting point is whether the old Bylaws prior to amendment
governed the North America Archdiocese. If the Bylaws, prior to amendment, governed the Archdiocese than their amendment might also. Bya parity of reasoning, the reverse would also appear to be true. That is, if the prior Bylaw provisions in question did not govern this Archdiocese than their amendment would be equally inapplicable.
In the instant case, Articles 75-79 prior to amendment read as follows:
75. The Patriarch is the relevant authority for all the bishops and they
report to him.
76. The provisions of Article 60 of these regulations are applicable to
the nominee for bishopric and his eligibility is determined pursuant
thereto.
77. The Holy Synod shall elect the bishop from among three names
submitted by the patriarch. The elections shall take place pursuant
to Articles 60, 68, 69, and 70 of these Regulations.
78. A bishop is appointed to head the patriarchal office, or a patriarchal
monastery or a vicariate or another ecclesiastical institution. The
Patriarchal Vicar is elected to this position.
79. The patriarchal vicar participates in the nomination and election of
the patriarch, archbishops and bishops.
It is clear that since the irrevocable grant of self-rule to this Archdiocese, the
creation of three diocesan bishops by the irrevocable self-rule Resolution itself, the
adoption by the Archdiocese of the irrevocable self-rule, the election and consecration of three additional new bishops pursuant to our Constitution, and the enthronement of the Archdiocese's diocesan bishops, the prior Articles 75-79 applied only throughout the rest of the Patriarchate and had no bearing or application to North America.
2. There Was No Intent to Violate the Self-Rule Resolution by the Inconsistent
Amendment.
Without a clear repudiation of the Resolution of the Holy Synod of Antioch
granting irrevocably self-rule to this Archdiocese, the purported amendments to the
Patriarchate's bylaws in like manner can have no bearing or effect on this Self-Ruled
Archdiocese. For the reasons addressed below, the purported amendments and the
self-rule Resolution are significantly inconsistent and both cannot apply to this
Archdiocese. Therefore, since there is no claim that the Resolution on self-rule has
been abrogated, and therefore still applies to this Archdiocese, the only logical
conclusion is that the purported amendments, if they have any applicability, apply only to archdioceses that have not been granted self-rule. They would not and do not apply to this Archdiocese.
It is apparent that some might argue that by the very wording of the amended
Article 79, that the purported amendments apply to all archdioceses of this Patriarchate including North America. That article as amended reads: "The aforementioned articles 75,76,77,78 are applicable in all Antiochian Archdioceses and whatever contradicts these articles is null and void."
What contradicts those articles in their application to North America is the
Resolution of the Holy Synod granting self-rule, the Constitution of the Archdiocese of North America, the irrevocable creation of three diocesan bishops by the self-rule
Resolution itself, the election and consecration of three bishops under the Constitution as diocesan bishops for North America and the enthronement of these various bishops their respective dioceses. To render all of these documents, resolutions and actions null and void by implication, or sub silentio, would be an absurd action. It cannot be imagined that the Holy Synod of Antioch, composed of wise and holy men, would participate in such a folly.
One would expect that if the Holy Synod of Antioch intended to abrogate its
Resolution of self rule, it would have done so directly and unequivocally. One must
assume the Synod did not intend to undue its Resolution of self rule or to render
nugatory the Constitution of the Archdiocese of North America, but rather intended only to affect those bishops in archdioceses that did not have self rule.
B. The Decision Does Not Apply to North America Because If It Did, It
Would Violate the Irrevocable Self-Rule Resolution.
The Resolution of the Holy Synod of Antioch granting self-rule to the North America Archdiocese is a simple yet powerful and historic document. In the history of
the Church, for whatever reasons, mother Churches have been recalcitrant and
unWilling to yield authority to their offspring even when they have grown in distant lands with the influence of different cultures and languages. As a result, when separation occurs without cooperation the split is often hostile and takes years to mend. There are numerous examples in the history of the Orthodox Church for reference.
Yet when one examines the Resolution of the Holy Synod of Antioch granting
self-rule, one sees that the Synod granted irrevocably self-rule to the Archdiocese. It
also irrevocably restricted itself in the ways that synodical decisions of the Holy Synod could impact the Archdiocese. That the grant was irrevocable is clear from the very first paragraph of the Resolution: "The Antiochian Orthodox Christian Archdiocese of North America is and shall remain self ruled within its present jurisdiction."
The wording simply couldn't be stronger. The word "is" denotes a present
existing condition while the word "shall" is not only mandatory, meaning nothing can
change that condition, but also expresses that the self-rule is to continue in the future without change.
The paragraphs on Governance, Recognition of Auxiliary Bishops as Diocesan
Bishops and local Synod, and Decisions of the Holy Synod of Antioch, show the grant of self rule and how it is to be accomplished as well as the Synod self-imposed
restriction on itself in its ability to affect the ecclesiastical governance of the Self-Ruled Archdiocese of North America.
The language on Governance is very instructive on the limitations the Holy
Synod placed on itself insofar as its decisions would be binding on the North America Archdiocese. The Resolution states: "The Archdiocese is governed by the Holy Scripture, the Sacred Tradition, the Holy Canons, the Constitution of the Church of Antioch and this Synodical Resolution and by its Constitution and Bylaws."
It is interesting that the paragraph does not state that the Archdiocese is
governed by the Bylaws of the Church of Antioch since clearly while some would apply others clearly would not as shown above. Indeed, from the time self rule was granted the Bylaws on the Bishops did not apply. The ones that would not apply as of the time of the Resolution was passed were those that conflicted with the grant of self rule as set forth in the Resolution, e.g., Articles 75-79 as shown above.
More important as to the self-rule Resolution than whether the Patriarchal bylaws
are authorized or could ever affect the Archdiocese, in a section headed "Decisions of the Holy Synod of Antioch", the self-rule Resolution clearly limits how and what future decisions may impact the North America Archdiocese: "The decisions of the Holy Synod of Antioch shall be binding on the Archdiocese on matters of doctrine, liturgy, sacraments, relations with autocephalous Orthodox Churches and ecumenical policy with regard to other Christian and non-Christian bodies." Significantly, the Resolution does not provide that Synod decisions that would affect the internal governance of the Self-Ruling Archdiocese are binding on the Archdiocese. Therefore, one must conclude they are not binding.
Clearly, the February 24th decision does not pertain to doctrine, liturgy,
sacraments, relations with autocephalous Orthodox Churches or ecumenical policy and therefore does not constitute a binding decision as defined in the Resolution on Self Rule.
While the paragraphs on Governance and Decisions would seem to be sufficient
to show that the February 24th decision could not pertain to this Self-Ruling
Archdiocese, what is equally instructive is the section entitled "Recognition of Auxiliary Bjshops as Diocesan Bishops and Local Synod". After stating that upon adoption of the resolution the Auxiliary bishops shall become Diocesan Bishops, it states: "The Diocesan Bishops will constitute under the Metropolitan the Local Synod of the Archdiocese which will be its governing authority. The Local Synod shall determine the number of dioceses and their boundaries."
That the Local Synod is the governing ecclesiastical authority for the Archdiocese
of North America is a touchstone of self-rule. As part of that self rule is the ability of the Local Synod to elect other Diocesan bishops, to determine the number of dioceses and their boundaries.
The February 24th decision defines all bishops other than the Patriarch,
metropolitans and archbishops as auxiliary under their respective Metropolitan and not able to "do anything contrary to the will of the Metropolitan." If the bishops sitting on the Local Synod cannot vote as they feel they should but must vote in agreement to the will of the Metropolitan then the Local Synod, if it exists at all as a Local Synod, is only a facade and rubber stamp, not truly a Synod of any sort at all. Such a provision that restricts the bishops to do nothing contrary to the will of the Metropolitan is in clear conflict with the self-rule Resolution. They cannot both stand.
Since there is no evidence that the Holy Synod acted to negate the Resolution of
Self-Rule, (and thus render itself as contradictory since the Resolution on Self-Rule
grants self rule irrevocably), and indeed Metropolitan PHILIP maintains self-rule has not been affected, then it is clear that the decision does not apply to this Archdiocese. It would not be appropriate to assume that the Holy Synod of Antioch acts in a haphazard and contradictory way. Such a suggestion only would bring disgrace and dishonor to an ancient Holy See which we refuse to do.
Furthermore, if the purported Bylaw amendments were intended to negate the
Resolution of Self-Rule it must be concluded they do not apply to this Archdiocese
because the Self-Rule Resolution is irrevocable and cannot legally be so violated.
C. The Decision Does Not Apply To North America Because If It Did It
Would Violate the Constitution Of The Irrevocably Self-Goveming
Archdiocese.
In acceptance of the answer to its request for self rule and in implementation of the Resolution on Self-Rule, this Archdiocese amended her Constitution in Pittsburgh,
PA which was immediately approved by Metropolitan PHILIP. As a result the
Constitution took immediate effect. It was submitted to Antioch for approval, and except for minor differences, the Constitution was sufficiently approved under the Self-Rule Resolution that the Patriarch consecrated, pursuant to a process that the Archdiocesan Board of Trustees accepted under our Constitution, three Diocesan bishops, THOMAS, MARK and ALEXANDER, who were elected by the North American Local Synod.
Those bishops as well as Bishops JOSEPH and BASIL were enthroned as diocesan
bishops of their respective dioceses, all pursuant to the Archdiocese Constitution.
Those Diocesan bishops, with Metropolitan PHILIP as the head, and Bishop ANTOUN, a Diocesan Bishop under the Self-Rule Resolution, constitute the Local Synod. Arch. Const. Art. IV, Sec. 2.
Pursuant to both the Resolution on Self-Rule and the Archdiocese Constitution, it
is the Local Synod through whom self rule is accomplished. The Resolution provides: "The Diocesan Bishops will constitute under the Metropolitan the Local Synod of the Archdiocese which will be its governing authority."
In like manner, the Archdiocese Constitution provides: "The Local Synod,
comprised of the Metropolitan, and the Diocesan Bishops shall be the governing
ecclesiastical authority of the Archdiocese. The Metropolitan shall preside over the
Local Synod." Arch. Const. Art. IV, Sec. 2.
If the February 24th Decision applied to this Self-Ruled Archdiocese, it would
create several conflicts with our Constitution such that our Constitution would be
rendered nugatory. First, if all of the Diocesan bishops are now auxiliary, then the Local Synod would cease to exist. Our Constitution does not provide for auxiliary bishops to be on the Local Synod except for one auxiliary bishop nominated by the General Assembly and elected by the Local Synod who is to assist the Metropolitan in the administration of the Self-Ruled Archdiocese. Arch. Const. Art. VI Sec. 1 A.
Second, even if they sat on the Local Synod, they would have no ability to govern
since they would be limited to voting in accordance with the will of the Metropolitan.
The Local Synod would for all practical purposes cease to function in accordance with its constitutional mandate as the governing ecclesiastical authority of the Archdiocese.
Third, the Archdiocese Constitution only allows that in certain instances the
Constitution of the Church of Antioch along with the Archdiocese Constitution, Bylaws, Holy Scripture, Sacred Tradition, and Holy Canons shall be the governing code for this Archdiocese. Arch. Const. Art. IV Sec. 1. It does not provide that the Bylaws of the Church of Antioch shall be part of that governing code. Should it be argued that the Bylaws of Antioch are included by implication since the Constitution of Antioch is part of the governing code, even the Constitution of Antioch is only part of this Archdiocese's governing code to the extent it is not inconsistent with our Constitution. Arch. Const.,Art. 4.
Metropolitan PHILIP has recognized that while portions of the Patriarchal
Constitution may apply in other archdioceses, they are not applicable here. In a letter to Patriarch IGNATIUS IV dated February 11, 2005, His Eminence wrote: "We are an
Archdiocese, established oversees, i.e., in the United States of America and Canada, which has its own particularities. In our administrative methodology we differ from all the other Archdioceses. For example, the main Patriarchal constitution is suitable to the Antiochian see in the homeland, but not overseas. Additionally, we have a mechanism for amending the constitution which we can not overstep."
As shown above, the February 24th decision is irreconcilably in conflict with the
Archdiocese Constitution. They cannot both apply to this Archdiocese and since the
decision is inconsistent with our Constitution, the February 24 decision does not apply to our Archdiocese.
Fourth, should it be argued that the decision is effectively an amendment to the
Archdiocese Constitution, it should be remembered that only the General Assembly of the Archdiocese can amend the Archdiocese Constitution. This is clearly set forth in Art. VII. It was also noted by Metropolitan PHILIP in his letter of February 11, 2005 to the Patriarch: "According to our registered constitution, neither the Holy Synod, nor the Metropolitan, nor the Local Synod can impose any amendment to the constitution without the approval of clergy and laity, i.e., the General Assembly of the Archdiocese."
This position was repeated by the Chancellors of the Archdiocese in their
"IMPORTANT MESSAGE REGARDING OUR CONSTITUTION" dated January 27,
2005. That message was distributed by the Archdiocese and directed to be published in the parish bulletin.
The February 24th decision, if it applied to this Archdiocese would dramatically
change our Constitution. As noted above, neither the Holy Synod, nor the Metropolitan, nor the Patriarch nor the Local Synod can impose any amendment without the approval of the General Assembly of the Self-Ruled Archdiocese.
Since the decision conflicts with the Archdiocese Constitution, the Constitution
governs and the decision cannot apply to this Self-Ruled Archdiocese.
D. The Decision Does Not Apply To North America Because If It Did It
Would Violate The Irrevocably Self-Ruled Archdiocese's Articles Of Incorporation.
As a result of the amendment of the Self-Ruled Archdiocese Constitution, the
Articles of Incorporation of the Self-Ruled Archdiocese were amended. They were
signed by Metropolitan PHILIP and filed with the State of New York on December 26, 2006
Those articles recognize that the grant of self-rule was irrevocable. Moreover,
they acknowledged that the self-rule was implemented pursuant to the amended
Constitution. Since the February 24th decision, if applicable, would violate the Archdiocese Constitution and negate the irrevocable grant of self-rule, it would also violate the Articles of Incorporation. Since the decision conflicts with the Articles of Incorporation, the Articles govern and the decision, therefore, cannot apply to this Self-Ruled Archdiocese.
III. SUMMARY: THE DECISION IS INVALID, WAS NOT INTENDED TO APPLY
AND INDEPENDENTLY DOES NOT APPLY TO, NOR DOES IT HAVE ANY
EFFECT UPON, OUR SELF•RULED ARCHDIOCESE.
For all of the reasons stated above, the February 24th decision is not a valid
decision of the Holy Synod of Antioch. Moreover, even if were, it was not intended to
apply to the Self-Ruled North American Archdiocese, and if it were intended to apply, it does not apply to, nor does it have any effect on our Self-Ruled Archdiocese or the
status of our Diocesan Bishops, because it is inconsistent with, negates, and violates
the irrevocable Resolution on Self-Rule, and without amendment by the General
Assembly it is inconsistent with, negates, and violates the Archdiocese Constitution in addition to the Articles of Incorporation.
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