JURISDICTIONAL RAPPORT BETWEEN THE DIOCESAN BISHOP AND THE ROMAN CURIA Revd. Anthony B. C. CHIEGBOKA

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1 JURISDICTIONAL RAPPORT BETWEEN THE DIOCESAN BISHOP AND THE ROMAN CURIA Revd. Anthony B. C. CHIEGBOKA 1. INTRODUCTION The calls for renewal and reform have been recurring decimal and perennial concern in the Church. This laudable desire for novelty in the Church is found in our times in the prayer for a New Pentecost by Pope John XXIII 1 and the call for a new attitude of mind, i.e. a new way of thinking (novus habitus mentis) by Pope Paul VI 2. All these have generated a new impetus in the pilgrim Church in its response and integration into the signs of times. The Second Vatican Council, the documents of the Council and post Conciliar documents are all responses to this need and desire within the Church. The Roman curia is not exempt in these calls for renewal, reform and reorganization. In this context the diocesan bishops remain at the vanguard of frequent and repeated calls on the healthy relationship with the curia officials and in effect free them from inappropriate restrictions and limitations on their pastoral jurisdiction within the particular Churches especially as it concerns the frequent recourse to the Roman Curia 3. The curia has been the subject of four pontifical texts: Immensa aeterni Dei (1588), Sapienti consilio (1909), Regimini ecclesiae universae (1967), Pastor Bonus (1988) 4. Our focus here is to expose the jurisdictional relationship between this special organ of the administration of the universal Church and the diocesan bishop from the perspective of the 1983 revised Code 5, 1988 Apostolic Constitution, Pastor Bonus and the 1999 Regolamento Generale della Curia Romana 6. It is good to know that the new Code has only two canons on the curia (cann ) but with many references to it sparsed here and there, especially where it mentions Holy See or Apostolic See (can 361) and supreme authority of the Church etc. The reason for the scarce canons in the Code is obvious. The legislator in the Code affirms that the curia is directed by a special law (can 360) and Pastor Bonus and Regolamento serve this disposition of the Code. Again, we should realize that since primarily the curia (as we shall see soon), is at the service of prima 1 John XXIII, Opening Speech to the Council, 11 October Paul VI, Allocution to the Code Commission, 20 November 1965, in AAS 57 (1965), p. 988 & Allocution to the Judges of the Roman Rota, 4 February Cf. James H. Provost, Pastor Bonus: Reflections on the Reorganization of the Roman Curia, in The Jurist, 48 (1988), pp ; James H. Provost, Local Church and Catholicity in the Constitution Pastor Bonus, in The Jurist, 52 (1992), p It is good to note that these calls for reforms in head and members preceded Council of Trent: Paul III in 1536 intitiated reform of Curia which was voted in the Council of Trent later (see Hubert Jedin, A History of the Council of Trent, 2 vols., trans. Ernest Graf, Edinburgh, Thomas Nelson and Sons, 1957). Two Papal documents on the Curia (see Sixtus V, Apostolic Constitution, Immensa aeterni Dei, 22 January, 1587; & Pius X, Apostolic Constitution, Sapienti consilio, 29 June 1908, in AAS 1 (1909), pp. 7-19) came after the Council of Trent; while the other two (see Paul VI, Apostolic Constitution, Regimini Ecclesiae universae, 15 August, 1967, in AAS 59 (1967), pp ; & John Paul II, Apostolic Constitution, Pastor Bonus, 28 June 1988, in AAS 80 (1988), pp came after Vatican II Council. Hence the witnessed reorganization had been the product of four hundred years. The title reflects the mind of each legislator in the contents. For further readings see: John Paul II, Pastor Bonus Nos 3-10; Jean-Baptiste Beyer, The Roman Curia: Official Organism of the Pope at the Service of the Particular Churches, in The Bishop and His Ministry, Vatican City, Urbaniana University Press, 1998, pp ; James H. Provost, Pastor Bonus, cit., & Local Church and Catholicity, cit. 5 John Paul II, The Code of Canon Law in English Translation prepared by THE CANON LAW SOCIETY OF GREAT BRITAIN AND IRELAND, in association with THE CANON LAW SOICETY OF AUSTRALIA AND NEW ZEALAND and THE CANADIAN CANON LAW SOICETY, London, Collins 1983 (henceforth referred to as CIC/83) 6 Secretariat of State, Regolamento Generale della curia Romana, 1 luglio 1999, in AAS 91 (1999); hereafter referred to as Regolamento) 1

2 sedes 7, and the fact that there is indissoluble bond of the Supreme Pontiff and Bishops, any discussion of the jurisdictional rapport of the diocesan bishop and curia is invariable a reflection between Primacy and Episcopacy and the particular Church and universal Church. Consequent upon this our first approach is to evaluate the jurisdiction of the curia and the diocesan bishop before treating the concrete provision for the jurisdictional rapport that exists between the diocesan bishop and the curia. 2. JURISDICTIONAL STATUS OF THE DIOCESAN BISHOP AND THE ROMAN CURIA. Jurisdictional Status of the Diocesan Bishop The diocesan bishop is designated by pontifical mandate (cann 377, 1; 378, 2). By his Episcopal consecration (cann 379; 1008; 1009; 373 2; 336; LG 21); his profession of faith and oath of fidelity to the Holy See (cann 380; 833, 3 ) and canonical possession or determination or mission (can 382; LG 24), the bishop assumes the identity and jurisdictional dignity over a particular Church and exercises his office in hierarchical communion with the head and college of bishops (cann 336; 375, 2; 149). With this identity, the bishop exist in a union (akin to marriage) with the particular Church and obliged to live with them and in their midst (can 395, 1). The diocesan bishop by divine disposition and institution (can 375, 1; 330; PB11) 8 is constituted pastor of the particular Church entrusted to his care in quibus e ex quibus, the one and only Catholic Church exists 9. In this Church, he has all the ordinary, proper and immediate power 10 and the power of jurisdiction 11 required for the exercise of his pastoral office. He exercises also the three functions of teaching, sanctifying and ruling within this community of faith or portion of the people of God (cann 375, 2; LG 21). In this particular Church the diocesan bishop represents his Church and indeed sums it up 12 and is the center of the apostolate 13, successor of apostles in the local Church community 14, presence of the universal Church in the particular Church 15, sponsors of the universal Church and all Churches 16, prelates of people whom they govern 17. This sacred and ontological status is personal to 7 John Paul II, Pastor Bonus (henceforth referred as PB) No. 3: We mean the Roman Curia which has worked in the service of the Petrine ministry from ancient times. NB Prima Sedes concerns only the person of the Supreme Pontiff and not the Curia: Cf. Manuel J. Arroba, Diritto processuale canonico, Roma, Editiones Institutum Iuridicum Claretianum, 2001, p. 94: L espressione prima sedes include la persona del Papa. Senz altro, l espressione prima sedes non equivale sempre all formula sede apostolica (o santa sede ), in quanto quest ultima si referisce all insieme di organismi di governo della curia romana (c. 361). 8 See also Patrick Granfield, The Church Local and Universal: Realization of Communion, in The Jurist, 49 (1989), p. 465; Thomas J. Green, The Pastoral Governance Role of the Diocesan Bishop: Foundations, Scope and Limitations, in The Jurist, 49 (1989), p. 477; Julian Herranz, The Personal Power of Governance of the Diocesan Bishop, in CLSA Proceedings, 49 (!987), p CIC/83, can 368; CIC/83, can 381, 1; CD 8, 11; LG CIC/83, cann 391, 1; 135; 129, PB 3; LG PB Congregation for Bishops, Direttorio per il Ministero Pastorale dei Vescovi, Apostolorum Successores, Città del Vaticano, Libreria Editrice Vaticana, 2004, p.5. (hereafter referred to as Apostolorum Successores); LG 27; CD 8; CIC/83, can Cf. Patrick Granfield, The Church Local and Universal., cit., p. 465; Hubert Mùller, How the Local Church lives and affirms its Catholicity, in The Jurist, 52 (1992), p CIC/83, can 782, 2) 17 Ebere P. Okpaleke, The Administrator of Diocesan Property, Nigeria, Rex Charles & Patrick Ltd., p

3 the bishop 18. According to the Council Fathers, the bishops are by this configuration vicars and ambassadors of Christ in the diocese and not vicar or delegate of the Roman Pontiff 19. However, the legislator while affirming that the diocesan bishop has all the ordinary, proper and immediate power within the particular Church under his jurisdiction added a note on jurisdictional limitation of the exercise of such power in these words: except in those matters which the law or a decree of the Supreme Pontiff reserves to the supreme or to some other ecclesiastical authority 20. Hence, despite the ontological and divine status of Episcopal authority and the provision of law for all necessary powers for the pastoral care of the diocese, the bishop s jurisdiction is however limited by a lot of factors especially the ministry of unity of faith and discipline for which the primacy and the curia exist to serve. Jurisdictional Status of the Roman Curia The new Code and Pastor Bonus affirm the auxiliary and ministerial status of the curia to the Supreme Pontiff, universal Church and Particular Churches (PB 1; can 360) 21. By this disposition its competence is essentially vicarious (PB 8) that is it acts not in its own right or by its own initiatives, but always in accord with the will of the pope and in service to the good of the Church and service of the bishops 22. The Regolamento in the Sixth Title (Art ) renewed this competence of the curia and mentioned specifically their jurisdiction (Art 125) only in giving general executive decrees and instructions (cann 31-34); and require specific approval of the Supreme Pontiff for general decrees (Art 125; Cf. cann 29; 30), and other issues of extraordinary character and decisions of major importance (Art 127, 1, 2) 23. In addition, even though the dicasteries are juridically equal in status (PB Art 2, 2), in emanating laws, however, there are provisions of exclusive competences and inter-dicasterial communications (PB Artt 11-23; Regolamento, Artt 117; ) in relation to certain issues 24. Principally the curia operates according to the universal law (the 1983 Code) and special law (Pastor Bonus and Regolamento and ones particular to the individual dicasteries) 25. The curia serves 18 Cf. Julian Herranz, The Personal Power of Governance of the Diocesan Bishop, cit., p.18; Myriam Wijlens, For You I am a Bishop, with You I am a Christian : Bishop as Legislator, in The Jurist, 56 (1996), p Cf. LG 27; Myriam Wijlens, Bishop as Legislator, cit., p. 74; Thomas J. Green, The Pastoral Governance Role of the Diocesan Bishop., cit., p ; Rodger J. Austin, The Particular Church and the Universal Church in the 1983 Code of canon Law, in Studia Canonica, 22 (1988), p. 341; Hubert Mùller, How the Local Church lives and affirms its Catholicity, cit., p.355; Thomas J. Green, Rights and Duties of Diocesan Bishops, cit., p. 27; NB. While the new Code affirms in canon 331 that the Pope is the Vicar of Christ but it fails to include this unique Conciliar designation also of bishop in this canon 375 paragraph one. It is only in the Eastern Code that this is explicit for the eparchial bishop (Cf. can 178 of John Paul II, Code of Canons of the Eastern Churches, Latin-English Edition, New English Translation prepared under the auspices of CANON LAW SOCIETY OF AMERICA (CLSA), Washington, DC 2001 (The Latin original is titled, Codex Canonum Ecclesiarum Orietalium, Città del Vaticano, Libreria Editrice Vaticana, The Code will henceforth be referred to as CCEO/90). 20 CIC/83, can 381, Cf. CD 9 which emphasizes that it is for the good of the Churches and in service to the sacred pastors ; see also James H. Provost, who added: Since it is at the service of the pope, it is also at the service of the local pastors and Churches in Pastor Bonus, cit., p. 509; Jean-Baptiste Beyer, The Roman Curia: Official Organism of the Pope at the Service of the Particular Churches, cit., p James H. Provost, Pastor Bonus, cit., p. 509; Cf. CIC/83, can 131, This approval according to the Regolamento Generale Art 126, 4,: Affinché consti dell approvazione in forma specifica si dovra dire esplicitamente che il Sommo Pontefice *in forma specifica approbavit*. 24 See our discussion on Reservations in section 3 of this work. But refer briefly to CIC/83, cann 1443; 1444; 1445; PB Artt 52, 53, 124; Regolamento Generale, Artt 128, Pastor Bonus regulates that there should be Ordo servandus or common norms for the Curia (Art 37: since its publication in June 28, 1988 and its coming into effect in March 1, 1989 we have experienced two common norms in 4 February 1992 and the last in 1 July, 1999) and also Ordo servandus or special norms for each dicastery, with the 3

4 the finality of the Church which is the good of the Church especially the salvation of souls (PB 12, 15; can 1752). Principally from its title and focus, diakonia is the leitmotiv of Pastor Bonus 26. The fact that the curia draws its existence from the pastor of the universal Church (PB 7; Cf. can 331) and serves the whole Church (PB 12), makes it to have an ecclesial character (PB 7, 12). Hence by this disposition the curia serves not only the unity of discipline and unity of faith (PB11) for which both the Pope, the College of Bishops and the diocesan bishops are the visible source and foundation of unity in their own particular Churches 27 but also communion (PB 12) and collegiality (PB 10) in the Church. Furthermore, the idea of Church as communion explains the theological bases of Unity of the Church and Collegiality between the Pope and College of Bishops. The Second Vatican Council affirmed that by the decree of the Lord Saint Peter and the rest of the apostles are united into one College and so is the Pope and the Bishop. This dignity is a consequence of valid Episcopal ordination and hierarchical communion 28. In this context both collegiality and Bishops communion with the Head, give the bishops the juridical authority to be seen not as delegates of Pope but as Vicars of Christ. The unity and communion among world episcopate i.e. between the Pope as head and the Bishops (and never without the head) guarantees the unity of the Church. Hence, the Congregation for the Doctrine of Faith affirmed that fostering a unity which does not destroy diversity is a fundamental function of the Roman Pontiff for the universal Church, and of each of the bishop within the particular Church in such a way that each builds up and safeguards unity on which diversification confers the character of communion 29. This is why the ministry of unity is paramount duty of the curia. On this bases, this idea of the Church understood as a communion picks up, develops and teaches us the jurisdictional relationship between the Universal Church and the Particular Church. This relationship within human dimension is seen as vertical communio relationship and is rooted not only in the same faith and in the common baptism, but above all in the Eucharist and in the episcopate. In each of the particular Church exists one and only Catholic Church. However, the Universal Church cannot be seen as sum of particular Churches or as federation of particular Churches or result of the communion of Churches. 30 Continuing, on the one hand, the universal Church as already observed is not identified with the particular Church of Rome 31 or be seen as sum or conglomeration or federation of particular Churches 32 but on the other hand it is built up from the particular Church and is present in them. The particular Church is formed in the image of the universal Church (LG 23) and must endeavor to represent the universal Church as perfectly as possible (AG 20). Among the universal and particular attendant obligation of publicity (Art 38) in accordance with operations of the Holy See (Cf. can 8, 1 on publications of Holy See). 26 Cf. The title and then the first paragraph (PB 1); John Paul II in another place said: I have myself emphasized that the vocation of all those who collaborate in the Curia, has a directive and only norm, this generous service, the service of the Church and for the Church (Allocution of 21 June 1986; Insegnamenti 9, ). 27 LG 23; Cf. also LG 26; PB 11; Matt 16, LG 20-25; CIC/83 cann. 330, 336; Cf. also in 1985 Extraordinary Synod of Bishops, Final Report, II, C, 4, which states, the ecclesiology of communion provides the sacramental foundation of collegiality. 29 Congregation for the Doctrine of the Faith, Some Aspects of the Church Understood as Communion, No 18 in Origins 22:7 (June 25, 1992), pp (henceforth the Congregation will be referred to as CDF and this document, Church as Communion) 30 Cf. LG 23, 26, CD 11; John Paul II, Los Angeles Meeting of the Pope and U.S. Bishops No 3; CDF, Church as Communion, No 9 31 Cf. Patrick Granfield, The Church Local and Universal. cit., p. 456; James H. Provost, Local Church and Catholicity., cit., p Cf. Paul VI, Post Synodal Apostolic Exhortation On Evangelization in the Modern World, Evangelii Nuntiandi, Nos 61-62; CDF, Church as Communion, cit., No 9; Patrick Granfield, The Church Local and Universal. Cit., p

5 Churches there should exist a mystical given ness, mutual interiority and inclusiveness as taught by the Council Fathers 33. On this Pope John Paul II said: In fact, there is among the individual particular Churches an ontological relationship of mutual inclusion: each particular Church, as a realization of the one Church of Christ, is in some way present in all the particular Churches in which and from which the one and unique Catholic Church exists (lumen gentium, n. 23).A particular task of the Apostolic See consists precisely in serving this universal unity... it is in this that the specific office and, we can say the charism of Peter of his successors lie.indeed, he is the rock on which Christ willed to build his Church (Mt. 16, 18); and it is precisely from the foundation that the compact firmness of the entire edifice expected 34. Finally, the vicarious and ministerial jurisdiction of the curia under the principle of collegiality, communion and subsidiarity is indeed a service to unity in diversity since a healthy diversity and pluralism adds vitality to the Christian assembly AREAS OF JURISDICTIONAL RAPPORT BETWEEN THE DIOCESAN BISHOP AND THE ROMAN CURIA. Having presented what we consider to be the unique jurisdictional competence of the diocesan bishop and the curia, we are yet to move a little further in showing concrete areas of such relationship which ultimately is still a presentation of their competences. For our convenience we wish to talk only on five unique areas among other things. They include: The Presence of the Diocesan Bishop in the Composition of Curial Personnel; The Imperative of Communication between the Curia and the Diocesan Bishop; The Issues of Reservations; The Quinquennial Report and Visit ad Limina Apostolorum and finally The Apostolic Visitations. We discuss each briefly The Presence of the Diocesan Bishop in the Composition of Curial Personnel The need for the presence of the diocesan bishops in the Roman curia have been the demand of the bishops themselves especially at the Second Vatican Council 36 and later. The demand also involved internationalization of the personnel to reflect the world wide universal image of one and unique Catholic Church 37. Pope Paul VI endorsed this desire by making some diocesan bishops 33 Cf. LG 23, 26; CD 11; Hubert Mùller, How the Local Church lives and affirms its Catholicity, in The Jurist, 52 (1992), p John Paul II, Allocution to the Roman Curia, 21 December 1984, in AAS 77 (1985), pp , English translation from L Osservatore Romano, English edition, 21 January 1985, p Cf. Hubert Mùller, How the Local Church lives and affirms its Catholicity, cit., p. 342; Patrick Granfield, The Church Local and Universal., cit., p. 460; see also OE 6; AG Cf. where some bishops are to be in curia in order that they can more completely present to the Supreme Pontiff the mentality, desires and needs of all the Churches, CD Cf. Domingo J. Andrés, who observed thus: Principio di universalizzazione della presenza di consultori in ogni dicastero, ed internazionalizzazione della scelta; il corpus dei consultori dovrebbe rappresentare tutti gli stati della Chiesa: vescovi, chierici, religiosi e laici; la designazione di questi ultimi, viene sottoposta a delle speciali condizioni, diverse da quelle enunciate per le restanti figure all interno del Dicastero, aspetto che, insieme al criterio dell internazionalizzazione, sono stati cricati da qualche autore, ritengo giustamente. See Consigli e Consiglieri al direeto servizio del Romano Pontefice, in Esercizio del potere e prassi della consultazione, Atti dell VIII colloquio Internazionale Romanistico-Canonistico, (10-12 maggio 1990), Libreria Editrice Vaticana, 1991, p. 33; James H. Provost, Pastor Bonus, cit., p. 525; James H. Provost, Local Church and Catholicity, cit., p. 325; Jean-Baptiste Beyer, The Roman Curia: Official Organism of the Pope at the Service of the Particular Churches, cit., p

6 pleno iure members of the curia 38. This practice is still sustained by Pope John Paul II in both the implicit mentioning in the new Code 39 and the explicit determination in the Pastor Bonus 40. In concrete, therefore Pastor Bonus, talked about the fifteen Cardinals who are all diocesan bishops who together with the Cardinal Secretary of State form new coetus that undertakes the work of advice on the organic, economic and administrative matters of the Holy See (PB Artt 24, 25) or those cardinals, diocesan bishops or auxiliary bishops that serve as coetus of various departments (PB Art 7) or the invitation to diocesan bishops and major superiors to be generous with the demand of personnel (clergy, religious and laity) for the Holy See (PB 8, 9 & Art 9) 41. All these efforts are made imperative by the demand of ministry of unity between the universal and particular Churches; Papacy and Episcopacy and of course the curia and diocesan bishop as the curia of the Successor of Peter 42 are daily enriched with the experiences and diversities of the local Churches (PB 9) The Imperative of Communication between the Curia and the Diocesan Bishop. The exchange of communication is essential for stability of any organization especially the Church with its world wide unique dimension. The jurisdictional status of the bishop have made them successors of the apostles 43, members of the College and together with the head subjects of supreme authority of the Church (cann 330, 336; PB 8) and pastors of particular Churches (PB 8) where the Church is fully present (cann 368, 369) 44. The curia which is at the service of pope and the bishops has the obligation according to Pastor Bonus to be open to communication and thus not only is the Roman Curia far from being a barrier or screen blocking personal communications and dealings between bishops and the Roman Pontiff, or restricting them with conditions, but, on the contrary, it is itself the facilitator for communion and the sharing of concerns, and must be ever 38 Paul VI, Apostolic Letter, motu proprio, Pro comperto sane, datae, quibus nonnullius episcopi diocesani uti membra in sacras Romanae curia congregationis cooptato, in AAS 59 (1967), pp (Also in L Osservatore Romano of August 13, 1967). 39 CIC/ 83, can 334 mentions implicitly the presence and availability of the bishops to the Roman Ponitiff in the exercise of his office especially in Synods of Bishops and Cardinalate. Also bishop emeritus (can 402) who have special competence in a particular matter can be included as an associate member (membrum adiunctum) of the dicasteries of the Roman Curia.considered when it is a question of naming consultors of the Roman Curia. (Cf. Proposition Approved by the Roman Pontiff during an Audience on October 29, 1988 see Congregation for Bishops, Normae de episcopis ab officio cessantibus, October 31, 1988, in Communicationes, 20 (1988), pp Cf. James H. Provost, said: The curia is tied to bishops by its very make-up because it includes practically all the cardinals, various diocesan bishops, and bishops who serve full-time in curial positions. The concerns of the local Churches are said to be given special consideration through the cardinals who are members of departments, ( Local Church and Catholicity, cit., p.307); PB 9. Hence we add that the curia is Episcopal in character and structure. 41 Cf. Jean-Baptiste Beyer, The Roman Curia: Official Organism of the Pope at the Service of the Particular Churches, cit., p. 402 show the personnel for diplomatic services come from the particular Churches. See also James H. Provost, Pastor Bonus, cit., p. 509; James H. Provost, Local Church and Catholicity, cit., p Although as observed by Provost most of the bishops are called only for the plenary meetings (which are not required even on annual bases) and not involved in the ordinary sessions (PB Art 11, 2; Regolamento Art 112, 1). And so diocesan bishops who are members of some department may never have an opportunity to participate directly in its workings, pp Jean-Baptiste Beyer, The Roman Curia: Official Organism of the Pope at the Service of the Particular Churches, cit., p Cf. Congregation for Bishops, Apostolorum Successores. This title picks up Second Vatican Council image of the bishops. See LG 27, CD 8; CIC/83, can Cf. Comprehensive treatment of this pastoral status of the bishop by John Paul II, Post-Synodal Apostolic Exhortation, On the Bishop, Servant of the Gospel of Jesus Christ for the Hope of the World, Pastores Gregis, Vatican City, Libreria Editrice Vaticana, The pope address the bishops as shepherds of the Lord s flock, No. 1. 6

7 more so 45. Pastor Bonus also went further to affirm unequivocally that each and every bishop still has the inviolable right and duty to approach the successor of Saint Peter 46. However, communication is not a one way affair, hence Pastor Bonus advices for a confident commerce and communication between the curia and pastors as an imperative from the ministry of salvation (PB 12, 10). The curia should endeavor to maintain close relationship with the particular Churches and their pastors so as to enhance coordination and promote pastoral action (PB Artt 13, 26) 47. Pastor Bonus directed that documents of the Holy See which are of major importance that have a general character (Art 26, 1) or of a general character or having a special bearing on their particular Churches (Art 26, 2), should be given before in advance to the diocesan bishops and their Conferences for their input before their publication 48. Although not necessary for validity but the demands of unity and communion in the Church makes this consultation not only reasonable but beneficial to the healthy rapport in the Church and for better implementation of the demands of such executory decrees and instructions (cann 31-34) at the local Church where the diocesan bishops have the unique responsibility of ensuring observance of ecclesiastical laws and decrees (can 392) The Issues of Reservations In the light of the Conciliar decree Christus Dominus 49 and the principle four of the revision of the Code, the legislator states: In the diocese entrusted to his care, the diocesan Bishop has all the ordinary, proper and immediate power required for the exercise of his pastoral office, except in those matters which the law or a decree of the Supreme Pontiff reserves to the supreme or to some other ecclesiastical authority 50 By this disposition the legislator transcended the system of concessions with its attendant constant recourse to the Holy (i.e. the system of quinquennial and decennial faculties) to system of reservations with its attendant dispensing power of bishops from 45 PB PB Principally, this service is readily accomplished by the Pontifical legates within the various countries of the world who as it were represent in a stable manner the person of the roman Pontiff in the particular Churches or also in the States and public authorities, to whom they are sent, (can 363, 1); See also cann for all regarding the legates and PB Artt 41, 1; 46, 1 ; Giuseppe Dalla Torre, La città sul monte, Roma, An. Veritas Editrice s.r.l., 2002, pp Commenting on this necessity of concord James H. Provost observed: In addressing competence questions, the bishops at Vatican II asked that questions of lesser importance or which affect only one nation be left to the bishops of that area. This is not reflected in any of the curial reforms, and curial practice has evidenced a tendency to reduce the significance of Episcopal conferences and at the same time take a more active role in the inner life of local dioceses see Pastor Bonus ; cit., p. 523; For statement on the competence of the Episcopal Conferences see John Paul II, Apostolic Letter, motu proprio On the Theological and Juridical Nature of Episcopal Conferences, Apostolos Suos, 21 May 1998, in (henceforth referred to as Apostolos Suos); In addition various areas of contact with conferences are present in Pastor Bonus for different issues (Cf Artt. 46; 50; 64, 3; 82; 93; 102; 141, 2; 143, 2; 157, 158) while the bishop in most cases are to be assisted (Cf. Artt. 50; 64; 70; 72; 102; 113; 115; 150; 151; 153, 2; 158 etc). The legislator emphasized on the need for the pontifical legate to maintain close cooperation with the bishops of the respective State, keeping them informed about discussions and negotiations with the state (CIC/83, can 365 2) and to maintain the bond of unity between the Holy See and the particular Churches; close relations with conference and bishop but for the bishop he leaves intact the exercise of their lawful power (CIC/83, can 364). 49 CD 8 which talks about the right of bishops to all ordinary, special, immediate and dispensing powers in his diocese; Cf. also LG 27 where bishop is presented as vicar of Christ and not delegate of the pope and also having all proper, ordinary and immediate powers (This is repeated in CD 11). However this exercise is personal to the bishop; Cf. also John Paul II, Apostolos Suos, No CIC/83, can 381, 1; CD 8. 7

8 universal laws (i.e. the system of reservations to the Pope or the Holy See) 51. Hubert Mùller gave the articulation in these words: This fundamental norm has introduced a basic change from the 1917 Code regarding the relationship of the diocesan bishops to the pope. The earlier system of sharing power by way of individual or collective concessions (the so-called system of concessions ) which was expressed by Trent through the formulations as apostolic delegates (tanquam delegate apostolici) and as delegates of the Apostolic See (tanquam Sedis Apostolicae delegati) has been replaced by a system of reservations that for the sake of Church unity simply withdraws individual cases from the domain of the Episcopal office and refers them to the pope or other Church authority. Fundamentally, however, the diocesan bishop is recognized as having all power necessary for his ministry in virtue of his office 52. The revised Code therefore by this system of reservations advocates for a more and better administrative decentralization in the Church governance. However, instead of the diocesan bishop having only the ordinary and immediate powers as in the 1917 Code 53, he has in this new disposition all the ordinary, immediate and proper powers in his particular Church but however the disposition of the legislator with the words except in those matters which the law or a decree of the Supreme Pontiff reserves to the supreme or to some other ecclesiastical authority 54 imposes limitation. Incidentally these reservations and exceptions handled at this level of the prima sedes and Holy See are clearly provided in the Code and Pastor Bonus- viz Nomination of Bishops (can 377; 378, 2; 364, 4 ; PB Artt 77, 89); Hierarchical Recourse (cann ; 1445, 1, 2 ; PB Art. 123); Establishment, approval and erection of particular Churches and Conferences (can 449, 1; 373; PB Artt. 76, 89, 58) and what concerns liturgical publications (can 838; PB Art 64), Catechetical Publications (can 775; PB Art 94) etc. Some issues are exclusively reserved to some dicasteries of the Holy See. For example: Offences against the faith and graviora delicta and Privileges of faith (Congregation for the Doctrine of the Faith) 55 ; Petitions for dispensation in ratum non-consumatum marriages and nullity of ordination (Congregation for Divine Worship and Discipline of the Sacraments) 56 ; Quinquennial Reports, Visit ad limina Apostolorum and Apostolic 51 Cf. Thomas Green, The Pastoral Governance Role of the Diocesan Bishop., cit., p.480; Thomas Green, Rights and Duties of Diocesan Bishops, cit., p.27; Ebere P. Okpaleke, The Administrator of Diocesan Property, Nigeria, cit., 2002, pp ; Jude A. Asanbe, The Authority of the Diocesan Bishop and the Decisions of the Conference of Bishops in the light of Recent Studies, An Appraisal of c. 455, 4, Rome, PUU, 1996, p. 107; James H. Provost, Pastor Bonus, cit., p Hubert Mùller, How the Local Church lives and affirms its Catholicity, cit., p. 354; Hubert Mùller, Episcopal Conference and the Diocesan Bishop, in The Jurist, 48 (1988), p. 121; Thomas Green, The Diocesan Bishop in the Revised Code., cit., pp ; The list of faculties were many at the time of the Second Vatican Council. The response from the Holy See was to extend the habitual faculties and then adopt a system of reservation rather than faculties. Apart from the provision in decree Christus Dominus No 8, Pope Paul VI responded also in two documents viz: motu proprio Pastorale Munus, 30 November 1963, in AAS 56 (1964), pp & motu proprio, De episcoporum muneribus, 15 June 1966, in AAS 58 (1966), pp ); see also James H. Provost, Pastor Bonus: Reflections on the reorganization of the Roman Curia, cit., p.502; James H. Provost, Local Church and Catholicity in the Constitution Pastor Bonus, cit., p. 300; But regrettably the apostolic Constitution Pastor Bonus in the norms for the Congregation on Divine Worship and the Disciple of the Sacraments still considers bishops as acting in virtue of Faculties Cf. PB Edward N. Peters, curator, The 1917 or Pio-Benedictine Code of Canon Law in English Translation, San Francisco, Ignatius Press, 2001, can. 334, 1, (henceforth to be designated as CIC/1917). 54 CIC/83, can 381, Cf. PB Art 52, 53. These cases include delicts against Eucharist (cann 1367; 1368, 2, 1 ; 1379; 908); 1365; delicts against Penance (cann 1378, 1; 1387; 1388, 1) and delicts of sexual abuse of minors (see John Paul II, Apostolic Letter, motu proprio datae, Sacramentorum Sanctitatis tutela, quibus Normae de gravioribus delicts Congregationi pro Doctrina Fidei reservatis promulgator, 30 Apri. 2001, in AAS 93 (2001), pp , Artt 2-5. This Congregation has also the explicit competence of overseeing all documents of the curia which deals with faith and morals (PB Art 54; Regolamento, Art 131, 5) 56 Cf. PB Artt 67, 68; CIC/83, can 1142;

9 Visitations (Congregations for Bishops) 57 ; Diocesan curia organs of consultations, vigilance over temporal goods and Clerical Celibacy (Congregation of Clergy) 58, Relationship with particular Churches i.e. Legates (Secretariat of State) 59 etc Quinquennial Report and Visit ad limina Apostolorum Paul s visit to see Peter (Gal 1, 8; 2, 2) constitutes the historic model of ad limina visits. The outcome was in response to unity of faith and discipline and communion (PB Appendix 2, 3). Ad limina visits by bishops consist of three principal elements and stages which include: the pilgrimage to and veneration of the tombs of the Princes of the Apostles, Meeting with the Supreme Pontiff and Meetings with the dicasteries of the Roman curia (can 400, 1; PB Artt 30, 31; Regolamento, Art 141). These three stages respectively endow the visits with sacred, personal and curial meanings and values (PB Appendix 6). The revised Code (cann ); Pastor Bonus (PB 10; Artt & Appendix) and Regolamento (Artt ) give special attention to this unique encounter which has an eminently ecclesial significance (PB 7). In essence the visit on the one hand is the ideal and unique moments of personal and private encounter of solicitude between the Supreme Pontiff and the diocesan bishops (PB 10; Appendix 4) and on the other hand bring about a kind of summit in relationship of the pastors of each particular Church with the Roman Pontiff...In this way the bond of hierarchical communion is strengthened and the Catholicity of the Church as well as the unity of the Episcopal college is shown in very open manner 60. The diocesan bishop s unique dignity in the local Church as one that stands at the center of all the apostolate, in all its forms, that is carried our in each particular Church, joined at the same time in the universal dimension of the Church as a whole 61 is vividly acknowledged in this encounter. The Roman Curia on their own part foster close communication with the bishops and are indeed the frequent structures of the communication, communion and unity between the Pope and the bishops 62. They are therefore expected to facilitate this communion rather than be its obstacle (PB 8). The bishops themselves should realize that in dealing with the curia they are indeed dealing with the Supreme Pontiff whom the curia exist to serve 63. Finally Quinquennial reports on the state of the diocese, which are compiled by the diocesan bishops and sent six months in advance through the Pontifical Legates remain the ground of this encounter between the bishop and the dicasteries and invariably the Supreme Pontiff (can 399; PB 57 Cf. PB Artt 79, 81 & Appendix to PB; CIC/83, cann 399; Cf. PB Artt 97, 98, 95; CIC/83, 1272; 1273; 1292, Cf. PB Artt 40, 41, 46, 47; CIC/83, cann PB, Art 29; Cf. also PB appendix 5; The bishops encounter with the Pope is normally fifteen minutes private encounter, working meal and joint liturgical celebrations (see James H. Provost, Pastor Bonus, cit., p PB, Appendix 4; PB 3, LG 23. The fact that new diocesan bishops are exempt from making the report and encounter show that this is not mere formalities Cf. CIC/83, can 399, Cf. James H. Provost, Local Church and Catholicity, cit., p. 314 ; The curia organs which are directly involved in organizing this visits are the Secretariat of State (Pontifical Legates), Congregation for Bishops (PB Art 81), Congregation of Evangelizations of Peoples (PB Art 89) and Prefecture of the Papal Household (PB Art ). See two documents on ad limina visits from the Congregation for Bishops: Decree Ad Romanam Ecclesiam, 9 June 1975, in AAS 67 (1975), pp & Direttori per la visita ad limina in Communicationes, 20 (1988), pp , (English translation: Directory for the ad limina Visit, Vatican City, 1988 or L Osservotore romano, weekly edition in English, 11 July 1988, pp Cf. James H. Provost, Local Church and Catholicity, cit., p. 321; James H. Provost, also holds In effect, the ad limina visits are a way in which bishops can influence the views of the people in the curia, but also a way in which officials of the curia can impress their own concerns upon the bishops (see Pastor Bonus: Reflections on the reorganization of the Roman Curia, cit., p. 520). 9

10 Art. 32; Regolamento Art 142 ) 64. The bishop s report on the state of the diocese draws more from his experience during pastoral visitations (cann ) The Apostolic Visitations The finality of the Church, which is salvation of souls (can 1752), the common good of the people of God, which are those things necessary to achieve their proper end (GS 26; DH 6) and the highly needed order and communion within the rank and file of the community of faith, place an obligation of vigilance and control on the Petrine office over particular Churches 65. Hence, in the Church there are structures of accountability for the diocesan bishop 66. These include quinquennial report, ad limina visit and apostolic visitation. The first two we have seen above, the last structure is unique, special and exceptional in structure, time and procedures. James H. Provost presents us with three types of apostolic visitations: an administrative investigation of the pastoral condition of the local Church; an administrative investigation of the effective pastoral ministry of the bishop personally and a criminal investigation 67. In essence, apostolic visitation emerges to ensure and safeguard faith and morals, discipline and order in governance of the Church and to remedy defect in the local Church which is harmful to unity and communion in the Church. The next question is who conducts this visitation? Principally it is the prerogative of prima sedes (Supreme Pontiff) to conduct a visitation on particular Church. The legislator provides a constitutional principle on the regulation of exercise of rights for the purpose of common good (can 223, 2). It is in the context of this canonical provision that we evaluate the reservation in canon 381 paragraph one on the bishop s power 68. The Supreme Pontiff has coercive power over the diocesan bishop since he exercises full, supreme, ordinary, proper and immediate power over universal Church and particular Churches and their groupings (cann 331; 333, 1) 69. This preeminence jurisdiction of the pope extends to faith, morals and church governance, and entails a primacy not simply of honor but real legislative, administrative, and judicial jurisdiction. Accordingly he may reserve certain issues to himself in view of the unity and advantage of the people of God Cf. Secretariat of State, Formula relationis quinquennalis, Typis polyglotis Vaticanis, This document demands that the report will cover the following areas: pastoral organization and administration of the diocese, general religious situation of the dioceses, liturgy, clergy, pontifical mission works and cooperation with the missions, seminaries, universities, Catholic secondary and elementary schools, life and activity of the laity, ecumenism, local and foreign social assistance, family life, marriage problems, divorce, abortion, pastoral care of immigrants, seamen, tourists, nomads, special urban problems, secularization, social justice, defense of human dignity, discrimination be reason of race, immigration, religious language, sex, housing problems, industrial relations, conflicts between Church and state in the field or social justice, conduct of Catholics in public life and then statistics. 65 Cf. LG 27 where it is stated that even though the diocesan bishop has all the ordinary, proper and immediate power for the pastoral care of the diocese, however the Council Fathers dispose although its exercise is ultimately controlled by the supreme authority of the Church and can be confined within certain limits should the usefulness of the Church and the faithful require that, (See also can 381, 1). 66 Accountability involves account of stewardship i.e. orthodoxy and orthopraxis (see James H. Provost, Toward some Operative Principles for Apostolic Visitations, in The Jurist, 49 (1989), p. 543). 67 James H. Provost, Toward some Operative Principles for Apostolic Visitations, cit., pp Note that the legislator provided in canon 18 that Laws which prescribe a penalty, or restrict the free exercise of rights, or contain an exception to the law, are to be interpreted strictly. Hence the canons 381 paragraph one and canon 223 paragraph should be interpreted strictly. 69 Cf. This was the main teaching of the Fathers of First Vatican Council which was on papal supremacy and infallibility. This teaching has an attached anathema for one who teaches or refuses to accept this dogmatic dispositions (See, Vatican Council 1, Pastor Aeternus, chapter 3, in Norman P. Tanner, English editor, Decrees of the Ecumenical Councils, vol. II: Trent-Vatican II, London, Sheed & Ward, 1990, pp ; John M. Huels, The Correction and Punishment of a Diocesan Bishop, cit., p Thomas J. Green, The Pastoral Governance Role of the Diocesan Bishop, cit., p

11 The Roman curia as the official organism of the prima sedes assist in this apostolic visitation. However the dicastery uniquely responsible for this is the Congregation for Bishops (PB, Art 79) 71. The lack of available juridical norms for the conduct of this visitation has been observed 72. However Patrick Granfield recommends that such visit should not be arbitrary but based on necessity; be the last resort having exhausted local procedures or intermediate jurisdiction; be rare and not habitual occurrence and follow a principle of justice 73. The conduct and process should respect right to good reputation of bishop (can 220), respect the demands of secrecy where demanded in process law (cf. can 1455) and the obligation to repair damage (can 128). One could say that the absence of procedures for these visitations which in experience are not regular is the demand of the legislator for order in the community which the diocesan bishop has the responsibility to promote in the local Church (can 1446). Since the bishops remain the foundation and visible principle of unity in the local Church, the challenge of the principles of communion and subsidiarity would challenge both Holy See and the diocesan bishop to the ministry of service to unity of faith and discipline CONCLUSION We have endeavored in this academic exercise to expose the jurisdictional relationship between the diocesan bishop and the Roman curia. We have seen the ordinary, proper and immediate competence of the diocesan bishop and only vicarious jurisdiction of the curia in the context of the unique mission of the one, holy, catholic and apostolic Church which is truly present in both the universal and local Churches. The principle of collegiality, communion and service guides this relationship on behalf of the Church of Christ. The principal unifying factor remains the Supreme Pontiff who enjoys universal, supreme, ordinary, proper and immediate power over both the universal, particular and the Roman curia. He guides the entire flock, structures and organs together with the college of bishops and curia towards the finality of the Church, which is the salvation of souls. This supreme value towards which the Church aspires, would absolutely make all stake holders in the administration of the Church to wish and pray the Spirit remain the vivifying force for growth of the Church in realization of the prayer of the Lord that the gate of hell will never overwhelm his Church (Matt 16, 16-18) and it should be united (John 17, 21). 71 John H. Huels, however contends that the Curia cannot punish a bishop since it lacks the jurisdiction of coercive power over a diocesan bishop for the reason that: Theologically relevant is the teaching that the episcopacy exists by divine law (c. 375, 1), whereas the Roman curia is a creation of purely ecclesiastical law. Diocesan bishops are ordinaries and heads of Churches. Officials of the Roman curia, as such are neither heads of Churches nor ordinaries. The Catholic Church is truly present and operative in each diocese or other particular Church in communion with the Holy See (cc ). The Roman curia is not a Church. It consists largely of executive and judicial agencies that serve the bishop of Rome and the universal Church. (see The Correction and Punishment of a Diocesan Bishop, cit., pp ). 72 Some authors employ the demand of canon 19 on lacuna legis to recommend the use of procedures for the transfer and removal of pastor in canons of 1983 Code (Cf. James H. Provost, Toward some Operative Principles for Apostolic Visitations, cit., pp ; John M. Huels, The Correction and Punishment of a Diocesan Bishop, cit., pp ). 73 Patrick Granfield, The Church Local and Universal, cit., pp The need for diocesan initiated regular visitation in terms of self study, scrutiny and evaluation through organs like the Presbyteral Council, Pastoral Council and Diocesan Synod remain a healthy ancilla that is at the service of renewal to the Local Church and also prevents imminent Apostolic Visitation in the Diocese. 11

12 SELECTED BIBLIOGRAPHY Arrieta, J. I. Governance Structures within the Catholic Church, Gratianus, Arroba, M. J. Diritto processuale canonico, Roma: Editiones Institutum Iuridicum Claretianum, Asanbe, J. A. Austin, R. J. Beal, J. P. Beyer, J. B. The Authority of the Diocesan Bishop and the Decisions of the Conference of Bishops in the light of Recent Studies, An Appraisal of c. 455, 4, Rome, PUU, The Particular Church & the Universal Church in the 1983 Code of canon Law, in Studia Canonica 22 (1988), pp The Apostolic Visitation of a Diocese: A Canonico-Historical Investigation, in The Jurist, 49 (1989), pp The Roman Curia: Official Organism of the Pope at the Service of the Particular Churches, in The Bishop and His Ministry, Vatican City: Urban University Press, 1998, pp Casado, J. H. The Personal Power of Governance of the Diocesan Bishop, Communicationes, 20 (1988), pp Congregation for Bishops, Directory on the Pastoral Ministry of Bishops, Ecclesia Imago, Ontario: Publications Service of the Canadian Conference Decree Ad Romanam Ecclesiam, 9 June 1975, in AAS 67 (1975), pp Direttori per la visita ad limina in Communicationes, 20 (1988), pp , (English translation, Directory for the ad limina Visit, vatican City, 1988 or L Osservatore romano, weekly editino in English, 11 July 1988, pp Normae de episcopis ab officio cessantibus, 31 October 1988, in Communicationes, 20 (1988), pp Direttorio per il Ministero Pastorale dei Vescovi, Apostolorum Successores. Città del Congregation for the Clergy, Vaticano: Libreria Editrice Vaticana, General Directory for Catechesis, 11 August 1997, Vaticana: Libreria Editrice Vaticana, Congregation for the Doctrine of Faith, Some Aspects of the Church Understood as Communion, in Origins 22:7 (June 25, 1992), pp Coriden A. J. An Introduction to Canon Law, New York: Paulist Press, 1991 Domingo, J.A. Flannery, A., gen., ed. Flannery, A., gen., ed. Granfield, P. Consigli e Consiglieri al Diretto Servizio del Romano Pontefice, in Esercizio del potere e prassi della consultatione, Libreria Editrice Vaticana, Vatican II Council: The Conciliar and Post Conciliar Documents, Dublin 1: Dominican Publications, Vatican Council II: More Post Conciliar Documents,Vatican Collection vol. 2, New York: Costello Publishing Company, The Church Local & Universal: Realization of Communion, in The Jurist 49 (1989), pp Green, T.J. The Pastoral Governance Role of the diocesan Bishop: Foundations, Scope & Limitations, Jurist 49 (1989), pp Rights and Duties of Diocesan Bishops, CLSA Proceedings, 45 (1983), pp The Diocesan Bishop in the Revised Code: Some Introductory Reflections, The Jurist, 42 (1982), pp Herranz, J. The Personal Power of Governance of the Diocesan Bishop, in CLSA Proceedings 51 (1989), pp Huels, J. M. The Correction and Punishment of a Diocesan Bishop, in The Jurist 49 (1989), pp Jedin, H. A. A. History of the Council of Trent, 2 vols., translation by Ernest Graf, Edinburgh, Thomas Nelson and Sons, Karambai, S. S. Structures of Decision-Making in the Local Church, Bangolore: Theological Publications in India, Linnan, J.L. Subsidiarity, Collegiality, Catholic Diversity, and their Relevance to Apostolic Visitations, in The Jurist, 49 (1989), pp Mùller, H. How the Local Church lives and affirms its Catholicity, in The Jurisit, 52 (1992), pp John Paul II Constitutio Apostolica Sacra Disciplinae Leges qua Codex Iuris Canonici Promulgatur, 25 January 1983: AAS 75 Pars II (1983) vii-xiv. The English translation is taken from The Code of Canon Law in English Translation. (Prepared by the Canon Law of Great Britain and 12