McAleese cracks the canon law code

THE recent disclosure during the trial of Pope Benedict XVI’s butler, Paolo Gabriele, that he stole highly sensitive documents the pontiff had marked “to be destroyed”, raises the intriguing question: What else is missing from the papal archives?

The Pope’s authority and power to order documents to be destroyed is beyond question — he is, after all, the last person in Europe exercising the powers of an absolute monarch. The code of canon law says so.

According to Canon 331, the Pope “by virtue of his office... has supreme, full, immediate and universal ordinary power in the Church, and he can always freely exercise this power”. Canon 332 tells us the Pope “acquires full and supreme power in the Church” when he is elected and accepts the election result. According to Canon 333: “There is neither appeal nor recourse against a judgment or a decree of the Roman Pontiff.”

These canons are contained in a section of the code that deals with the exercise of supreme authority in the Church, a section the first part of which is headed “The Roman Pontiff and the College of Bishops”.

In her new book, Quo Vadis?, our former president makes the relationship between the Pope and the College of Bishops the kernel of her investigation, an investigation that begins with how and why the concept of “collegiality” came into vogue during the Second Vatican Council — more widely referred to as Vatican II — which met in four plenary sessions between 1962-65.

Fifty years after the end of that council collegiality remains a contentious and divisive concept. The legacy of Vatican II, of which collegiality is a central part, is today much disputed, and the former president — who was professor of law in TCD before being elected to the Áras — is surely right when she states that episcopal collegiality “produced the most divisive conciliar debate” during Vatican II.

The great failure of the council is that it was, as the author puts it, “vague” on collegiality. But the council operated under constraints.

If the council fathers had been able to proceed unimpeded it is very probable they would have produced a text that would have given expression to a form of collegiality that would have bridged the gulf between the College of Bishops and its head, the Pope.

However, that didn’t happen. Alarmed at the way the wind was blowing during the council, a group of conservative cardinals went to Pope Paul VI and warned him that, unless he personally intervened, his absolute authority as Pope was about to be undermined.

The great stumbling block here were the declarations of papal primacy and infallibility emanating from the First Vatican Council (1869-70). It is conveniently forgotten that, in the 15th century, the Council of Constance ruled that even Popes were subject to the authority of councils.

The intervention by Paul VI during the drafting of the section of the constitution dealing with collegiality had a decisive effect. The end result, as Mrs McAleese points out, was to leave episcopal collegiality in a “definitional limbo”. Actually, it did more than that — it mothballed collegiality.

There was a faint hope among liberal Catholics that when Paul VI announced he was setting up a Synod of Bishops — which met for the first time in 1967 — it would become a real, concrete and effective instrument of collegiality.

Such hopes were dashed, however, when the Pope went on to declare that the Synod would have an advisory role only. From the outset, it was very clear that Paul’s successor, John Paul II, had no time for any form of synodical governance. Any pretence that the Synod would serve as a form of collegiality has rightly been described as a “fiction”.

During the long pontificate of Karol Wojtyla, the process of centralising all authority in Rome went on to such an extent that the Oxford historian Diarmaid MacCulloch, author of A History of Christianity, was able to say there now exists the most centralised form of control since the beginning of Catholic Church.

This situation remains unchanged under Benedict, who is as hostile to any form of collective governance as was his Polish predecessor. As a consequence, the Synod of Bishops is now, in the description of Desmond Fisher, former editor of the Catholic Herald, “incapacitated”.

We are left with an imperial Pope, exercising the powers of an absolute monarch. “No standing mechanism exists to facilitate the exercise by the College of Bishops of its power of governance,” says Mrs McAleese.

In a recent interview with Gay Byrne for the RTÉ series The Meaning of Life, she said the question that forms the title of her book — Quo Vadis? (“Where are you going?) — was really directed at Pope Benedict XVI.

This is because of uncertainty about the future of a Church clearly in crisis, and because there are no clear lines anymore, with the result that many Catholics are just hanging on by their fingertips, unsure about what can or cannot be discussed.

The sub-title of Mrs McAleese’s book is Collegiality in the Code of Canon Law and, having now earned a qualification in canon law, she works her way comprehensively through the code.

The reality, of course, is that there is no effective collegiality anywhere in the code. And why? Because Pope John Paul II never wanted anything much to do with collegiality — an attitude shared by his successor, Benedict, who worked hand-in-glove with him throughout his long pontificate.

Everything in the code that appears to allow for the exercise of collegiality is immediately hedged around with conditions and qualifications, all of which come back to the Pope himself. He holds all the power, and that power is supreme and absolute.

As one scholar has emphasised, collegiality “does not exist in its fullest sense if bishops are merely passive recipients of papal directives and initiatives”.

It may indeed require — as more and more commentators are now saying — a Vatican III to alter that position. But for any realistic prospect of significant change we must look to the next Pope.

* Quo Vadis? by Mary McAleese is published by The Columba Press at €19.99

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