of Competence of Collegial Organs of Executive Power
2. Governance competence of the college of consultors
Among all collegial organs envisaged by CIC/83 that function in a diocese (can. 369) and other particular Churches (can. 368), only the col-lege of consultors is endowed with direct governance competences (can.
419).13
10 J. Krukowski, Administracja w Kościele, 62–64.
11 M. Sitarz, “Kompetencje reprezentacyjne organów kolegialnych w Kościele partykular-nym według Kodeksu Prawa Kanonicznego z 1983 r.,” Historia magistra vitae. Księga jubileuszowa ku czci Profesora Jerzego Flagi, ed. A. Dębiński, S. Wrzosek, K. Maćkowska, M. Kruszewska-Gagoś, Lublin 2007, 300–302.
12 For more, see: M. Sitarz, “Kompetencje kreacyjne organów kolegialnych w Kościele par-tykularnym,” Ecclesia et Status. Księga jubileuszowa z okazji 40-lecia pracy naukowej profesora Józefa Krukowskiego, ed. A. Dębiński, K. Orzeszyna, M. Sitarz, Lublin 2004, 529–531.
13 M. Sitarz, Kolegium konsultorów w Kodeksie Prawa Kanonicznego 1983 i partykularnym prawie polskim, Lublin 1999, 119–121.
2.1 The notion and purpose of governance competences
Power (potestas) relies on a moral authorisation to perform a governing function in a given social arrangement.14 The power of governance exists in the Church by divine institution and is also called the power of juris-diction15 (can. 129, §1). Power in the Church is divided into the power of holy orders (potestas ordinis) and power of governance (potestas regendi seu iurisdictionis).16 The power of ordination originates in the orders to diaco-nate, presbyterate, and episcopate, and its purpose is to celebrate the cult of God and sanctify people. Basically, the power of governance is linked to the power of ordination.17 It can be exercised externally and internally. In the former case, it produces overt effects with relation to community, obser- vable and attestable, while in the latter case it satisfies the demands of con-science in secrecy.18 The power of jurisdiction is ordinary (potestas regiminis ordinaria) if by law it is joined to an office; it is delegated (potestas regiminis delegata) if it is granted to a person but not by means of an office. Ordinary power of governance can be either proper or vicarious (cann. 129–144).19
Governance competences permit one to place acts of governance.
2.2 Governance competences in extraordinary circumstances
The college of consultors can place acts of under extraordinary situa-tions, only if certain circumstances occur (cann. 413, 419).20
14 L. Lorenzetti claims that “all social relations imply authority, since authority is a relatio- nal reality.” For more, see: L. Lorenzetti, “Potere,“ Nuovo Dizionario di Teologia Morale, ed. F. Com-pagnoni, G. Piana, S. Privitera, Milano 1990, 970–971.
15 E. Wilemska, “Jurysdykcja,“ EK, vol. VIII, coll. 267–269.
16 A.M. Stickler, “La potestas regiminis. Visione teologica,” Il nuovo Codice di diritto canonico, Novita, motivazione e significato, Roma 1983, 71–72; T. Pikus, O władzy w Kościele, Warszawa 2003, 9–18; also see the bibliography section, pages 137–141.
17 The exercise of this power can be shared by the lay faithful, according to the prescripts of law of can. 129, §2.
18 P. Erdö, “Forum wewnętrzne i forum zewnętrzne w prawie kanonicznym,” Forum ex-ternum i forum inex-ternum w prawie kanonicznym. Między prawem a sumieniem. Materiały Międzyna- rodowej Konferencji Naukowej zorganizowanej 9-10 maja 2005 r. w Lublinie, ed. A. Skorupa, Lublin 2006, 11–35.
19 See: B. Sesboüé, Władza w Kościele. Autorytet, prawda i wolność, Kraków 2003; M. Sitarz, Słownik prawa kanonicznego, Warszawa 2004, coll. 196–197.
20 The council of the mission has no governance competences, fulfilling in an apostolic vi-cariate or prefecture all tasks of the college of consultors pursuant of can. 502, §4, unless
other-2.2.1 Governance competences under sede vacante
Can. 419 provides that “when a see is vacant and until the designation of a diocesan administrator, the governance of a diocese devolves upon the auxiliary bishop or, if there are several, upon the one who is senior in pro-motion. If there is no auxiliary bishop, however, it devolves upon the col-lege of consultors unless the Holy See has provided otherwise.”21
What follows from this precept is the presence of conditions under which the power of governance in the diocese devolves upon the college of consultors, namely when:
1) there is no auxiliary bishop;
2) the selected administrator of the diocese has not accepted the appo-intment or the choice has not been made yet;
3) the Holy See has not provided otherwise (can. 419).
Under these circumstances the college of consultors has the power which the law grants to a vicar general (can. 426). The power of governance in this case does not equal that of a vicar general under sede plena. Firstly, it is ordinary power (can. 131), which is entrusted to the college of consultors by law itself. In other words, the college of consultors exercises their power by virtue of de iure entitlement granted by the supreme ecclesiastical legi- slator. Secondly, it is executive power limited by the principle sede vacante nihil innovetur (can. 428).22 According to it, when a see is vacant, nothing is to be altered or no action is to be taken that would be prejudicial in some way to the diocese or episcopal rights. The council of consultors governs the diocese for as long as it is prescribed by the legislator.23 The disposition of canon 421, §1, prescribing that the diocesan governor be elected within
wise established by law. With respect to this, the Code establishes that “when the see is vacant in an apostolic vicariate or prefecture, the governance is assumed by the pro-vicar or pro-prefect, appointed only for this purpose by the vicar or prefect immediately after the vicar or prefect has taken possession of the vicariate or prefecture” (can. 420).
21 The Congregation for Bishops further specified the contents of this canon as follows: “As soon as the episcopal see becomes vacant, the governance of the diocese is entrusted to the auxi- liary bishop or, if there is more than one, to the auxiliary who is senior by nomination, until the election of a diocesan administrator or the appointment of an apostolic administrator. If there is no auxiliary bishop, the governance of the diocese is assumed by the college of consultors until the election of the diocesan administrator, unless the Holy See has provided otherwise by appointing an apostolic administrator” (AS 235).
22 Cf. J. Krukowski, “Kolegium konsultorów. Nowy organ władzy w strukturze Kościoła partykularnego,” Studia Sandomierskie 5 (1985–1989), 19–30.
23 J.A. Renken, “The Impeded See and the Vacant See,” New Commentary on the Code of Ca- non Law, ed. J.P. Beal, J.A. Coriden, T.J. Green, New York/Mahwah 1989, 556.
eight days from receiving a notice of the vacancy, indicates that the go- vernance of the college of consultors in the diocese must not extend longer than this period. If a diocesan administrator is not elected in the prescribed period, the college loses the right to elect him; it must be assumed that de-spite the above the college of consultors legitimately will exercise its power of governance until a new administrator is designated by the metropolitan or the suffragan bishop senior in promotion if the metropolitan church is vacant (can. 421, §2; cf. also AS 236). Such an interpretation of the law is motivated by concern for the salvation of souls (can. 1752) of the Christian faithful who “have the right to receive assistance from the sacred pastors out of the spiritual goods of the Church, especially the word of God and the sacraments” (can. 213). The realisation of this right implies that the college of consultors take necessary temporary administrative decisions in the rela- tively short time while governing the diocese.24 The Code prescribes this action to the college of consultors in can. 525, providing that “When a see is vacant or impeded, it belongs to the diocesan administrator or another who governs the diocese temporarily [e.g. the college of consultors] to in-stall or confirm presbyters who have been legitimately presented or elected for a parish.” In principle, the power to appoint a pastor is reserved for the diocesan bishop (can. 524).25 However, with regard to the necessity of securing the good of souls, the legislator empowers the college of consul-tors to grant provision or accept for the office of pastor legitimately presen- ted or elected candidates (dependent provision) (can. 525, 1°). It seems that also in the case of independent provision, if both the diocese and a parish without a vicar were left vacant and such a case were not regulated by the particular law (can. 541),26 then the college of consultors would be obliged to elect a priest and empower him with all competences required for proper exercise of pastoral care in a parish so that the good of souls would not be endangered (including the right to assist a priest administering the
sacra-24 E. Piacentini, “Competenze del collegio dei consultori, nel nuovo Codice,” ME 110 (1985), 408–409.
25 R. Pagé, Les Églises particulieres. La charge pastorale de leurs communautes de fideles selon le Code de droit canonique de 1983, vol. II, Quebec 1989, 78–86.
26 “When a parish becomes vacant or a pastor has been impeded from exercising his pas-toral function and before the appointment of a parochial administrator, the parochial vicar is to assume the governance of the parish temporarily. If there are several vicars, the one who is senior in appointment or, if there are no vicars, a pastor determined by particular law assumes this governance” (can. 541, §1). See: J. Vernay, Le droit dans l’Eglise catholique. Le droit ecclesial au service de la pastorale, Paris 1995, 122.
ment of marriage).27 This choice should be made collegially (can. 119) by the college of consultors, in compliance with the procedure prescribed by cann. 164–179.
2.2.2 Governance competences under sede impedita
It is not determined whether the college of consultors takes over the governance of the diocese under sede impedita until a legitimately elected temporary administrator of the diocese takes possession of the office, when all of the conditions in can. 413, §1 are fulfilled, namely when the following persons are absent:
1) a coadjutor bishop (or he is impeded);
2) an auxiliary bishop, vicar general, or episcopal vicar;
3) any person from a list drawn up by the diocesan bishop immediately after taking possession of his office in the diocese entrusted to him.28 In the light of the above, we can find two viewpoints in the canonist literature.
1. Some commentators of CIC/83 omit this question. They do it so pro- bably because the canonical codifier does not provide any regulation to this problem. The Congregation for Bishops (AS 233–247) and Polish Episcopal Conference even do not distinguish a sede impedita situation.29 Consequent-ly, commentators are content with a discussion of the competences of the college of consultors regarding the appointment of a priest to govern the diocese temporarily.30
2. Other commentators of CIC/83 hold a view that, in practice, the situ- ation of sede impedita can occur in which no person enumerated by can.
413, §1 is authorised to govern the diocese temporarily.31 In this situation,
27 See: J. Krukowski, [Commentary on can. 525], Komentarz do Kodeksu Prawa Kanonicznego, ed. J. Krukowski, vol. II/1, Poznań 2003, 425.
28 When the sede impedita situation occurs (can. 415) due to the diocesan bishop incurring a latae sententiae penalty, he is impeded in exercising his governance, and if he places acts of go- vernance, they are lawful but contemptible; see M. Sitarz, “Przeszkoda w działaniu i wakat sto- licy biskupiej,“ Komentarz do Kodeksu, vol. II/1, 279.
29 See Polish Episcopal Conference, “Postanowienia Konferencji Episkopatu Polski w spra-wie Rad Kapłańskich i Kolegium Konsultorów” [21 March 1985], AKEP 1 (1998), 19–142.
30 Cf. P. Erdö, Egyhazjog, Budapest 1991, 285–286; J.T. Martin de Agar, Elementi di diritto canonico, Roma 1996, 92–93; F. D’Ostilio, Prontuario del Codice di Diritto Canonico, Città del Vatica-no 1996, 235; J.I. Arrieta, Diritto dell’organizzazione ecclesiastica, 435–436; F.J. Ramos, Le diocese nel Codice di Diritto Canonico, Roma 1997, 270.
31 M. Sitarz, [Commentary on can. 413], Komentarz do Kodeksu, vol. II/1, 274–278.
the college of consultors can exercise governance of the diocese until it ap-points a temporary administrator.32
It is to be supposed that under such circumstances there exists an analo- gy between sede impedita and sede vacante, in which by virtue of can. 419 the power of governance in the diocese devolves upon the college of consultors until the letter elects a diocesan administrator. The application of this dis-position (regarding temporary governance of the diocese by the college of consultors) is necessary due to the good of the faithful of the diocese until a priest who is to govern the diocese temporarily is elected. When the see is impeded, the college of consultors governs the diocese until a priest is elected governor of the diocese, who will govern it until the impediment is removed. In this period of time, the college of consultors exercises power of governance that is due to the ordinary of the place, but to the extent gran- ted by the law to a diocesan administrator under sede vacante, the difference being that the acts placed by this body are collegial in nature.33
In countries where by virtue of can. 502, §3 the tasks of the college of consultors are entrusted to the cathedral chapter, governance devolves upon the chapter in the same extent as it does on the college of consultors (AS 235).