Election of new pontiff: events leading to the sede vacante

Today is the last day of the pontificate of Benedict XVI, and after a morning meeting with the cardinals in Rome, he will make his farewells in the San Damaso Courtyard at 4.55pm before leaving by helicopter for Castel Gandolfo, landing at 5:15pm.  There he will be received by the president and secretary general of the Governorate of Vatican City State along with Bishop Marcello Semeraro of the Diocese of Albano, and civil authorities of the locality.  Pope Benedict’s abdication and the resulting sede vacante does not commence until 8-00pm when the Vatican Gendarmerie will take over the role of the Swiss Guards assigned to him at Castel Gandolfo in ensuring his safety.  [A physical manifestation of the sede vacante (“the seat being vacant”) is the cathedra of Saint John Lateran, the cathedral church of the bishop of Rome. Further details may be found here.]

Regarding the beginning of the Congregations of Cardinals, the Dean of the College of Cardinals is expected to send a letter to all the cardinals on 1 March calling them to Rome. The congregations are likely to begin the following week.  These will be held in the new Synod Hall, and the prelates will only be housed in the Casa Santa Marta residence on the evening of the beginning of the Conclave.

A guide Conclave: Step by Step through the Papal Interregnum was published in 2013 by the Catholic Truth Society, the publishers to the Holy See, but reflective of the unexpected nature of the Pope’s resignation, the procedures described deal principally with the death of a pope and there is little consideration of those following a resignation.

Legislative issues leading up to the sede vacante

Canon lawyer Ed Peters sums up the position in his blog

“Beyond the barest of canonical points (Canon 332 §2), almost everything about Benedict’s future—his status under law (canonical and international), title(s), appropriate dress, relations with peers (assuming he has any), and so on and so on and so on—must be fashioned practically from scratch. One should not assume that any announcements being made about Benedict’s future are based on the authority of some arcane-but-accessible protocol tome for dealing with ex-popes, because there is no such tome. We’re making most of this up as we go,” [Emphasis added].

The legislation associated with the issues leading up to the sede vacante is derived from three sources: i]  the 1983 Code of Canon Law;  ii] specific decisions of Benedict XVI associated with his papal authority; and iii] norms of the Apostolic Constitution ‘Universi Dominici Gregis’. 

1983 Code of Canons

Within the 1983 Code, Papal resignation is dealt with explicitly in Canon 332 §2 which states

“If it happens that the Roman Pontiff resigns his office, it is required for validity that the resignation is made freely and properly manifested but not that it is accepted by anyone”.

Consequently, in announcing his resignation, Benedict XVI stated formally

“ . . . . . .For this reason, and well aware of the seriousness of this act, with full freedom I declare that I renounce the ministry of Bishop of Rome, Successor of Saint Peter . . . . . “

This also explains references to Pope Celestine who voluntarily resigned in 1294 whereas Gregory XII agreed to relinquish the papacy in 1415 at the request of the Council of Constance to end a dispute with a rival claimant to the Holy See.  In 2010, the book “Light of the World: The Pope, the Church, and the Sign of the Times” contained an interview with Benedict XVI in which he said

”Yes, if a pope clearly realizes that he is no longer physically, psychologically and spiritually capable of handling the duties of his office, then he has a right and, under some circumstances, also an obligation, to resign.”

More general aspects of resignation from any ecclesiastical office are contained in Canons 187 to 189 of which Canon 187 is most relevant to the present situation, viz.

Anyone responsible for oneself (sui compos) can resign from an ecclesiastical office for a just cause.”

The sui compos provision of Canon 187 is important, for whilst the physical incapacity to undertake an ecclesiastical office would be regarded as a “just cause”, anyone suffering a mental incapacity would not be deemed capable of resigning. In the New Commentary on the Code of Canon Law (Paulist Press, New York 2000), J H Provost states:

“someone suffering from severe mental illness, a mentally disabling stroke, a coma, or otherwise lacking the use of reason, (Canon 99), is not capable of resigning an office”.

Acknowledging the “strength of mind and body” necessary to undertake the obligations of the pontificate, Benedict XVI resigned at a time when he was permitted to do so by canon law.  A major problem would have arisen were he to be temporarily or permanently incapacitated, since there are no adequate provision addressing these possibilities.  Although  Canon 335 states

“When the Roman See is vacant or entirely impeded, nothing is to be altered in the governance of the universal Church; the special laws issued for these circumstances, however, are to be observed”,

no “special laws” have been enacted to cover this situation and as Cathy Caridi observes, under Canon 331, the Pope alone has supreme, full, immediate and universal ordinary power in the Church, and as such

“there is nobody on earth who has the authority to make an official determination that the Pope is incapacitated and must be removed, or that somebody else should henceforth govern in his place.”

In the past, former Popes have drawn up documents of resignation, dependent upon the occurrence of certain events – Pius VII (1800–1823) and Pius XII (1939-1958) – and John Paul II (1978-2005) is reported to have written a letter of resignation conditional on a future incapacity to exercise his apostolic ministry.  However, these were never enacted and remain hypothetical  possibilities, untested in the light of Canon 331. Following the example of Benedict XVI’s resignation, however, it would be prudent for the new pope to address these lacunae.

Exercise of Papal Authority

Following the resignation announcement, Vatican sources indicated that in the remaining weeks of his papacy, the Pope would continue to exercise his authority through new appointments and legal developments, Vice-Prefect of the Vatican Apostolic Library, Ambrogio Piazzoni, stating:

“the Pope remains the supreme legislator until 19:59 on 28 February and can make changes to laws to do with the Conclave as well, [because] the Holy Father is the only one who can modify legislation concerning the Conclave. . . . [and] only the Pope can interpret the law up until he resigns”.

Appointments and resignations

Important appointments include: Ernst von Freyberg to head the troubled Vatican bank (the Institute for Works of Religion); the replacement of the Vatican’s “foreign affairs minister” by Antoine Camilleri; and promotion from that post of Mgr Ettore Balestrero to the post of Apostolic Nuncio of Colombia.

In addition to the high-profile early resignation of Cardinal O’Brien, Archbishop of Saint Andrews and Edinburgh, agreed nunc pro tunc in November, Rorate Caeli reports that on 27 February 2013, the Pope accepted the resignations of: the Archbishop of Liverpool, Patrick Altham Kelly, following a slight stroke, (Canon 401 §2) and the Auxiliary of Armagh, Bishop Gerard Clifford, also on grounds of ill-health, (Canons 411 and 401 §2). In a related move, Pope Benedict appointed Archbishop Philip Tartaglia of Glasgow to be apostolic administrator of the Edinburgh archdiocese.

The resignation of diocesan bishops is covered by Canon 401, the second part of which leads to uncertainty in the present climate,

Can. 401 §1. A diocesan bishop who has completed the seventy-fifth year of age is requested to present his resignation from office to the Supreme Pontiff, who will make provision after he has examined all the circumstances.

§2. A diocesan bishop who has become less able to fulfill his office because of ill-health or some other grave cause is earnestly requested to present his resignation from office.

Archbishop Miguel Maury Buendia, apostolic nuncio to Kazakhstan, Kyrgyzstan, and Tadjikstan has recently claimed that Benedict XVI has removed two or three bishops per month throughout the world because either the accounts in their dioceses were a mess or their discipline was a disaster.  Where persuasion was ineffective, legal measures were applied.  An analysis of these claims suggests that there may be some substance in this perception, which has been noted by other commentators.

Society of St Pius X, (SSPX), “Lefebvrians”

On 21 February, the Vatican Information Service stated

“Regarding the issue of the Society of St. Pius X, he reaffirmed that the date of 22 February to decide the issue is pure hypothesis and that Benedict XVI has decided to entrust the matter to the next Pope, therefore, a definition of relations with that society should not be expected by the end of this pontificate”.

See also here.

Vatileaks

In addition to its coverage of motu proprio Normas nunnullas, (see below), Vatican radio reported the conclusion of the Commission of Cardinals investigations into the leaking of the Pope’s private information to the press. The three cardinals on the Comission – Julián Herranz, Jozef Tomko and Salvatore De Giorgi – were received by the Pope on Monday morning:

“The Holy Father wished to thank them for their fruitful work, expressing satisfaction for the results of the investigation. In fact, their work made it possible to detect, given the limitations and imperfections of the human component of each institution, the generosity, honesty and dedication of those who work in the Holy See at the service of the mission entrusted by Christ to the Roman Pontiff. The Holy Father has decided that the facts of this investigation, the contents of which are known only to himself, will be made available exclusively to the new Pontiff”.

Fr. Lombardi added that the three cardinals “will participate fully in the General Congregations, where they too will have the occasion to express their own convictions. But it was also pointed out that participants in the Congregations are also bound to secrecy”.

Other issues

Pope Benedict decided that he will: be referred to as “Pope Emeritus” or “Pontiff Emeritus”, (but not the Bishop of Rome); keep the style “His Holiness Benedict XVI”; and continue to wear a simple white cassock but with no papal mozzetta (or red papal shoes).  However, he was only empowered to make these decisions until the start of the sede vacante, i.e. 8-00pm on 28th February 2013.  From then until the election of the new Pontiff, no one has the requisite authority, and when appointed, the new pope may reverse these decisions and/or impose new conditions.

Apostolic Constitution ‘Universi Dominici Gregis’

The conduct of papal elections is governed by Universi Dominici Gregis, On the Vacancy of the Apostolic See, and the Election of the Roman Pontiff, (UDG), are primarily concerned with the situation following the death of a pope, rather than one resulting from his incapacity.  The age limit of 80 for participation in the Conclave itself is contained in Canon 349.

In Universi Dominici Gregis, John Paul II detailed the election process, which was changed to permit election by an absolute majority if successive votes fail to give the 2/3 majority.  Benedict XVI abolished this through Constitutione apostolica returning to the 2/3 majority irrespective of the number of ballots necessary.  Benedict XVI’s resignation on 11 February raised a number of uncertainties some of which have been resolved in his motu proprio Normas nunnullas, issued on 25 February.  This is in Latin and Italian, but an English translation is available on the Rorate Caeli blog. .

As Ed Peters points out, the 17-day delay between the resignation announcement and effective date of the resignation, followed by a minimum 15-day delay before the conclave could legally begin would mean that the Church would be leaderless for over a month.  Provisions within UDG included a nine-day period of mourning for the deceased pope, and Normas nunnullas overcomes this through permitting a derogation authorizing an earlier start of the conclave if all the electors are present. Peters notes

“Such a decision now falls squarely within the pontifical provisions for a conclave, and one may leave the choice of a start-date to the competent authority without further concern for the legality of the assembly.

He also notes that in a move possibly directed at media claims on the legitimacy of certain cardinals involvement in the conclave, Normas nunnullas reiterates that no otherwise-eligible elector can, for any reason, be barred from participation in the conclave..

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