of Competence of Collegial Organs of Executive Power
4. Creative competences of collegial organs in a particular Church
4.3 Creative competences of collegial organs in a particular Church under the Code of Canon Law
4.3.2 Creative competences under sede impedita and sede vacante
The situation of sede impedita arises when the diocesan bishop, by rea-son of an ecclesiastical penalty (can. 415), captivity, banishment, exile, or incapacity, is clearly prevented from fulfilling his pastoral function in the diocese, so that he is not able to communicate with those in his diocese even by letter (can. 412).78 The episcopal see is vacant sede vacante, upon the death of a diocesan bishop, resignation accepted by the Roman Pontiff, transfer, or privation made known to the bishop (can. 416).79 Under these extraordi-nary circumstances, the operation of most collegial organs is suspended by the law itself (AS 244). Only the diocesan finance council and the college of consultors possess creative competences. The finance council is responsible for electing an administrator, and the college of consultors has the follo- wing creative competences:
77 R. Pagé, Les Églises, 51–53.
78 M. Sitarz, Przeszkoda w działaniu i wakat stolicy biskupiej, 272–294.
79 In extraordinary circumstances, the function of the presbyteral council, pastoral council and episcopal council is suspended by the power of law. Only the diocesan finance council, college of consultors, and group of pastor consultors operate.
1) the appointment of a temporary administrator of the diocese under sede impedita (can. 413, §2);
2) the appointment of a diocesan administrator under sede vacante (can.
421, §1);
3) the election of a presbyter who, when the see and parish have be- come vacated simultaneously, is to take care of the needs of the faith- ful (cann. 213, 419, 525).
4.3.2.1 The election of a diocesan finance officer by the diocesan finance council Under sede vacante, the Code obliges the finance council to use its crea- tive competence only when the college of consultors elects the finance officer administrator. In such a case, the finance council is to elect a tem-porary finance officer (can. 423, §2). The law does not specify who is to convoke the council and when. Likewise, it is not specified whether the council is to elect a new finance officer when the see is impeded if the college of consultors has chosen the finance officer to be the tempo-rary administrator of the diocese (can. 413, §2). The answer seems to be affirmative since these offices should not be combined (see can. 492, §3).
By analogy, it must be said that the council should be convoked by the one who temporarily substitutes the diocesan bishop, or the member who is senior in promotion.80
4.3.2.2 The election of an interim diocesan leader by the college of consultors When a see is impeded (cann. 412, 415), the college of consultors takes over the governance of the diocese and is to elect a presbyter who is to go- vern it only when the bishop coadjutor is absent or impeded, there is no vicar general or episcopal vicar, and there is no list of persons which is to be drawn by the diocesan bishop as soon as possible after taking the pos-session of the diocese (can. 413).81 In that case, the chancellor of the curia is obliged to inform of this fact the senior member of the college of consultors
80 “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, ge- neral principles of law applied with canonical equity, the jurisprudence and practice of the Ro-man Curia, and the common and constant opinion of learned persons” (can. 19). “The diocesan bishop presides over the college of consultors. When a see is impeded or vacant, however, the one who temporarily takes the place of the bishop or, if he has not yet been appointed, the priest who is senior in ordination in the college of consultors presides” (can. 502, §2).
81 J.A. Renken, The Impeded see and the Vacant See, 546–549.
who has a right and duty to convoke and preside over an assembly of the college until their choice is made and accepted by the presbyter who is to govern the diocese. If the interim diocesan leader submitted his resignation to the college of consultors, this resignation would be immediately enforce-able. The college is then to elect another person for this office.82
4.3.2.3 The election of a diocesan administrator by the college of consultors When a see is vacated (can. 416), the Code obliges the college of con-sultors to institute an administrator. “The college of concon-sultors must elect a diocesan administrator, namely the one who is to govern the diocese tem-porarily, within eight days from receiving notice of the vacancy of an epis-copal see and without prejudice to the prescript of can. 502, §3” (can. 421,
§1). The election of an administrator is a function independent of the gov-erning function of the college of consultors in the period preceding this act.
The legislator requires a diocesan administrator to be instituted only when an auxiliary bishop held this office under sede vacante. The failure to keep the deadline for the election of an administrator results in losing the right to choose an administrator, or invalidity of the election if it were to take place post factum.83 The college of consultors elects the diocesan administrator in pursuance of canons 165–178 (can. 424). The Congregation for Bishops, re-ferring to a decree on the Pastoral Care of Bishops in the Church (26), lays down that “it is desirable, however, that the auxiliary bishop should be elected to the office of diocesan administrator. If there are several auxilia-ries, it is desirable that one of them should be so elected, unless important reasons should indicate otherwise (AS 234).”84
4.3.2.4 The election of a parish administrator by the college of consultors in extraordinary circumstances
The obligation of choosing a presbyter and sending him to a particu-lar community of the faithful may arise only when the governance of the diocese is held by the college of consultors in special circumstances (cann.
82 See: M. Sitarz, Kolegium konsultorów w Kodeksie Prawa Kanonicznego, 110–124. R. Walczak, Sede vacante come conseguenza della perdita di un ufficio ecclesiastico nel Codice di Diritto Canonico del 1983, Roma 2008, 186–197.
83 M. Sitarz, “Zarządzenie Kościołem partykularnym w sytuacjach nadzwyczajnych,”
BSKP 14 (2001), no. 1, 51–53.
84 See: J. Wroceński, “Administrator diecezjalny jako tymczasowy rządca diecezją waku-jącą,” PK 46 (2003), nos. 1–2, 39–56.
412, 416) and simultaneously an office in the diocese becomes empty (or impeded), e.g. a parish is left without a vicar but the particular law does not envisage this situation.85 The college of consultors can provide a selected presbyter with the office of vicar or parochial administrator,86 and empower him with authority to normally fulfil the functions that this office entails, including the right to assist in a marriage ceremony.87 Although the Code does not explicitly grant this competence to the college of consultors, it seems that given the assumption that the faithful have a right to be helped by their sacred pastors, out of the spiritual goods of the Church, especially the word of God and the sacraments (can. 213) – this body, as an organ of authority under extraordinary circumstances, should guarantee pastoral care for the needy faithful.