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Church retirement rules go under Court scrutiny: CEN 3.05.10 p 8. March 16, 2010

Posted by geoconger in Canon Law, Church of England Newspaper, Church of the Province of the West Indies.

Archdeacon Etienne Bowleg of Nassau

The Bahamian Supreme Court will hear a challenge this week to the Anglican Church’s canons governing the retirement of clergy.

On March 3 the court will hear the petition of Archdeacon Etienne Bowleg, rector of Holy Trinity Church in Nassau, who is fighting Bishop Laish Boyd’s order that he step down upon reaching the mandatory age of retirement of 70.

This will be the second go round before the courts in the Bowleg affair, as the archdeacon had previously sought to have eight years subtracted from his age, claiming his birth certificate was in error. The archdeacon’s new claim is that the diocese’s failure to properly gazette, or publish the canon, renders it void.

The archdeacon’s claim is being given close consideration by the Bahamian courts, as a similar case in the Diocese of Barbados went to the Privy Council in London, which found in favor of a clergyman who was able to show the publication of the diocese’s canons had not been legally perfected.

In 2007 Archbishop Drexel Gomez informed Archdeacon Bowleg that as he was 70 years of age, he would have to step down at the end of the year. Under Bahamian canon law, clergy must retire at the age of 65, but may with the permission of bishop remain in office until the age of 70.

Archdeacon Bowleg responded that he was born on Dec 18, 1945, but when his birth was recorded it was registered with the wrong date: Dec 18, 1937. The mistake was only discovered when he moved to Nassau to live with his father. In 1962 he stated his parents signed an affidavit stating the year of his birth was 1945, but he had subsequently lost the affidavit.

The court granted an ex parte order to the archdeacon changing the date of his birth, but following the protests of the diocese which produced a baptismal certificate and the intervention of the attorney general, the order subtracting eight years from his birth certificate was rescinded.

In an affidavit sworn on Aug 20, 2008 Acting Registrar General Shane Miller stated the archdeacon’s birth had been recorded by his mother as Dec 18, 1937. A further search of the records revealed that a daughter had been born to the archdeacon’s mother on May 28, 1945 in Ragged Island. “It should be noted that this birth was seven months prior to the alleged birth of [Bowleg] on Dec 18, 1945,” Miller stated.

However, in light of his second cause of action, the Supreme Court has granted Archdeacon Bowleg an injunction, preventing his ouster pending the March hearing. The canons governing mandatory retirement were not properly advertised, the archdeacon has argued, and should be of no legal effect.

When he was Bishop of Barbados, Archbishop Gomez was party to a similar case. In Gomez v Gatherer, the Privy Council held that the failure of a Church to follow its rules of procedure served as a bar to enforcement of acts not properly enacted.

In 1969 the Anglican Church in Barbados was disestablished and the 1947 Anglican Church Act rescinded. New regulations were made by the church providing for retirement of clergy, but the church failed to publish the new regulations in the Official Gazette as was required by law.

The rector of St Andrew’s Church, the Rev. Edward Gatherer upon reaching retirement age was asked to stand down by Bishop Gomez. He declined and the case was brought to trial, and on appeal the Privy Council in 1992 held no obligation to retire was created because the regulations had not been properly published.

In affidavit filed with the Court in Nassau, Archbishop Gomez said he was disappointed that Archdeacon Bowleg was now seeking to impugn the diocesan constitution, when he had supported their adoption, and had acted on the premise that they were binding upon him and required his retirement at the age of 70.

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