– Prof. Augustine Mendonca
Part I: Introduction
Canon 469 of the 1983 Code defines the constitution and finality of the diocesan curia. It states that: “The diocesan curia consists of those institutions and persons which assist the bishop in the governance of the whole diocese, especially in guiding pastoral action, in caring for the administration of the diocese, and in exercising judicial power.”1 According to this canon, a diocesan curia consists of “institutions” and “persons,” and, unlike canon 363 of the 1917 Code, it does not list the “institutions” nor does it specify who the “persons” are, although in some of the canons that follow there is mention of a moderator of the curia (can. 473, §2),2 vicar general (can. 475), Episcopal vicar (can. 476), chancellor (can. 482), other notaries (can. 483), and finance officer (can. 494), and among the institution are, Episcopal council (can. 473, §4)3 and finance council (can. 492). This is not a taxative list because the very tenor of canon 469 leave to the discretion of the diocesan bishop the constitution of other “institutions” and creation of new “offices” to which other “persons” can be appointed according to the pastoral needs of the particular church. And the collaboration of “institutions” and “persons” with the bishop takes place particularly in three areas, namely: pastoral activity, administrative or executive and judicial functions. The activities of the curia are ordinarily carried out within two sections, namely administrative and judicial. While canons 469-494 deal with the persons and functions pertaining to the administrative section, prescripts of Book VII, Processes, concern cases and persons which belong to the exercise of judicial power in the curia.
1. Canon 243 of the Eastern Code is more comprehensive and contains several points that are different from canon 469 of CIC 83. CCEO c. 243 reads:
“§1. The eparchial bishop must have at his see an eparchial curia, which assists him in the governance of the eparchy entrusted to him.
“§2. To the eparchial curia belong the protosycellus, syncelli, judicial vicar, eparchial finance officer and the finance council, chancellor, eparchial judges, promoter of justice and defender of the bond, notaries and other persons included by the eparchial bishop to discharge properly the offices of the eparchial curia.
“§3. For the needs or benefit of the eparchy, the eparcial bishop can also set up othe in the eparchial curia.”
2. This figure does not exist in CCEO. However, there is nothing in law that would prohibit an eparch in introducing this figure within his eparchy. In fact CCEO 243, §3 seem to provide sufficient discretion to establish an office moderator.
3. This organism does not exist in CCEO. In accord with CCEO 243, §3, an eparch can create this institution in his eparchy.
Because of time constraints, this presentation will be limited to two juridic entities only, namely the “moderator of the curia” and the “Episcopal council,” both of which are new in the 1983 Code although they are not without historical and pastoral foundations in canon law.
1 – The Moderator of the Curia
The juridic figure of “Moderator” of the diocesan curia did not exist in ecclesiastical tradition or universal legislation until the promulgation of the 1983 Code of Canon Law.4 Although the 1971 Code (cf. cann. 365, 366, §1) and even the conciliar decree Christus Dominus (no. 27) recognized the office of Vicar General as the most important office in the diocesan curia, he was officially not given any directory or supervisory role within the curia. This does not mean that the figure of the curia Moderator appeared in the 1983 Code out of the blue. In some dioceses in Europe, precedents of this figure were already present prior to the 1983 Code. For example, A. Rouco Varela refers to a central department within some diocesan curias of Europe presided over by the Vicar General. He writes: “central department is the directive and coordinating organ of all the other departments and services of the Episcopal curia. It is presided over by the Vicar General who functions in a permanently direct and immediate relationship with the bishop.”5
Another precedent of the figure of Moderator was introduced into the curia of the Vicariate of Rome by Pope Paul VI. The Vicariate itself was identified with the “curia” and it consisted of three organisms: General Secretariat, Offices and Tribunals. A figure called “Praelatus Secretarius,” appointed by the Supreme Pontiff, was to direct (“moderator”) the operations of the General Secretariat. More concretely, he was to coordinate the activities pertaining to the chancery, the offices, and other juridical affairs of the curia. He was also to supervise the offices related to administrative, that is, economic, juridic and technical matters.6 In his reflections on this figure, D. Conlon points out that the currently available documentation from the Code Commission does not indicate any connection between the “Praelatus Secretrius” and the Moderator of the curia.7 But this view may not be entirely correct because the figure of Head of the Curia or Moderator had already begun to emerge prior to the apostolic constitution of Paul VI.
4. For two comprehensive studies on this subject, see the following doctoral dissertation defended at two different universities in the same year: Kevin M. McDONOUGH, The Moderator of the Curia and Curial Coordination, JCD diss., Romae, Pontificia Studiorum Universitas A.S. Thoma Aq. In Urbe, 1987; R. Daniel CONLON, The Moderator of the Curia as Manager of the Diocesan Pastoral Action, JCD diss., Ottawa, Saint Paul University, 1987.
5. A. ROUCO VARELA, “El minister Episcopal y la organización de la curia,” in La curia Episcopal: reforma y actualización, Salamanca, Moderator of the Curia, p. 138.
6. See PAUL VI, Apostolic Constitution Vicariae potestatis, 6 January 1977, in Acta Apostolicae Sedis, (=AAS), 69 (1977), pp. 5-18, here at p. 12.
7. See CONLON, The Moderator of the Curia, p. 140.
The evolution of canon 473, §2 reveals that the theological reflections contained in the conciliar and post-conciliar documentson the particular church, that is, the diocese,8 had laid the basis for the introduction of the figure of Moderator in a diocesan curia.
The earliest formulation of a canon which included the idea of a “coordinator” of curial operations was drafted in the 1973. The 1973 draft stressed the personal responsibility of the bishop to coordinate the activities of his vicars. It provided the possibility of constituting an Episcopal council, if the bishop so desired. It also stipulated that the bishop of every diocese was to name (“nominandus est”) a “Head of the Curia” (“caput curiae”).9 Thus the very first draft made the appointment of a “head of the curia” mandatory. The requirement of a Moderator to coordinate the activities of the diocesan curia was reiterated in canon 286 of the 1977 Schema. This canon had two paragraphs. The first paragraph stipulated that “in each diocese, a Moderator of the curia shall be nominated (‘nominetur’) by the diocesan bishop.” The second paragraph required the appointment (“nomineture”) of Vicar General as the Moderator, “unless the circumstances of the place suggest some other provision according to the judgement of the bishop.”10 Thus the initial formulations of the canon made the appointment of a Moderator of the curia mandatory.
But the 1980 Schema made such an appointment “facultative.” The deliberations of the Code Commission on this particular point indicates that the Secretary of the Commission and the study group realized that the Moderator’s office might not be universally useful. Therefore, the Secretary of the Commission, in synthesizing the canons (285, §2 and 286, §1) of the 1977 schema explained this change in following terms: “[…] 1) the Moderator of the curia should not be imposed on every diocese. The Moderator is certainly useful in large dioceses, but unless in small dioceses; therefore, we must say that when we speak of the Moderator, a limiting expression such as ‘where expedient’, etc.[…] should be used.”11 With the suggested change, the obligatory nature of the formula was rendered to read: “[…] where it is expedient, a Moderator of the curia can be appointed.12 This norm, unanimously approved by the members of the Code Commission, is now contained in canon 473, §2 of the present Code. This profound change also reflects the importance of respecting the principle of “subsidiarity” which had been so forcefully emphasized in conciliar teaching and in the fundamental principles governing the revision of the Code.13 —————————————————-
8. For example, see Second Vatican Council, Decree on the Pastoral Office of Bishops in the Church, Christus Dominus (=CD). no. 27, 28 October 1965, in AAS, 58 (1966), pp. 673-701, here at pp. 686-687; English translation in Austin FLANNERY (gen. ed.), Vatican Council II, Vol. 1, The Conciliar and Post Conciliar Documents, New rev. ed., Northport, NY, Costello Publishing Company; Dublin, Ireland, Dominican Publications, 1996, pp. 565-590, here at pp/ 579-580; also see Sacred Congregation for Bishops, Directorium de pastorali ministerio episcoporum, Ecclesiae imago, [in Civitate Vaticana], Typis polyglottis Vaticanis, 1973, especially no. 200, pp. 195-197; English translation: Directory on the Pastoral Ministry of Bishops, trans. by the Benedictine Monks of the Seminary of Christ the King, BC, Ottawa, Publications Service of the Canadian Catholic Conference, 1974, pp. 102-103.
9. See Communicationes, 5 (1973), pp. 225-226.
10. PONTIFICIA COMMISSION CODICI IURIS CANONICI RECOGNOSCENDO, Schema canonum libri II: De populo Dei, Roma, Typis polyglottis Vaticanis, 1977, p. 117, canon 286.
11. See Commucicationes, 13 (1981), pp. 115-116.
12. “[…] ubi id expediat nominari potest Moderator Curia qui sacerdos sit oportet, […]” (Communicationes, 13 (1981), p. 116).
13 . See McDONOUGH, The Moderator of the Curia, p. 114.
As a result of this change, canon 473, §2 undoubtedly makes the appointment of the Moderator of the curia optional and leaves the decision in this matter to the discretion of the bishop who should take into consideration the concrete situation of his diocese. The office might certainly prove to be a useful instrument in the effective management of the curia and of the apostolate in general in larger and structurally more complex dioceses.
The requirement that the Vicar General be appointed as Moderator of the curia remained constant from the time the figure was introduced into the very first draft of the canon in 1973.14 In the history of the diocesan curia the Vicar General has always played a very important role. The conciliar decree Christus Dominus, no. 27, described the office of Vicar General as “preeminent” in the diocesan curia. Therefore, it was natural that because of his position in diocesan curia as the vicar of the bishop, the Vicar General was the first one to be considered for the office of Moderator. However, the law is not expressed in absolute terms in regard to this requirement.
As seen above, canon 286, §2 of the 1977 Schema obliged the bishop to appoint the Vicar General (if several Vicar General one of them) as the Moderator, “unless the circumstances of the place suggested otherwise.” One could read in this exceptive clause the possibility of a priest, a deacon or even a lay person, being appointed to the office of the Moderator. But the 1980 schema eliminated such a possibility by stating that the Moderator “[…] must be a priest […].”15 This requirement leaves room for the bishop, when the concrete circumstances of his particular church demand it, to appoint a “sacerdos” to the office of Moderator of the curia. Therefore, it is quite possible that, due to the situation of a diocese or the personal condition of the Vicar General, the bishop may be constrained to name someone else as the Moderator of the curia. Instead of the Vicar General, an Episcopal Vicar can be legitimately named Moderator of the curia. Still the Episcopal Vicar has not been explicitly mentioned in law as a possible alternatice to the Vicar General.
The law clearly states that the Moderator ought to be a priest. Canon 473, §2 uses the term “oportet” to indicate a strong preference for a priest to assume the office of Moderator. The term “denotes the necessity of reason or duty,” “something that is both less than absolute, yet not relative, and that is dependent on some objective principle (rather than force) for its motivations.”16 For this reason, Pagé says: “Yet it seems proper that this be so because, even if the function of the Moderator does not depend on the sacrament of orders, it is of such a nature that the Code stipulates that it must be conferred on the Vicar General.”17 In other words, the mind of the legislator is clear on this point, that is the office of Moderator entails such a sharing in the Episcopal function of deciding and controlling, that only someone who is able to possess and exercise Episcopal power of governance is to occupy the office. Ideally such a person would be a Vicar General or Episcopal vicar, or someone who has the requisite qualities to be such a vicar, namely a priest.18
14. Communicationes, 5 (1973), p. 225.
15. “[…] qui sacerdos sit oportet, […]” (Communicationes, 13 (1981), p. 116).
16. CONLON, The Moderator of the Curia, p. 165.
17. R. PAGÉ, Less églises particulières, tome 1, Leurs structures de government selon le Code de droit canonique de 1983, Montréal, Éditions Paulines & Mediaspaul, 1985, pp. 66, 70.
18. See CONLON, The Moderator of the Curia, pp. 166-167.
Therefore, the phrase “sacerdos sit oportet” seems intended to exclude from the office of Moderator not only lay persons but also deacons. And yet, some canonists argue that the same word could be interpreted to allow a certain degree of latitude on this matter depending on the nature of authority or power attached to the office of Moderator that would determine who can be legitimately appointed to that office. Thus, for example, if the office entails merely bureaucratic organization of the curia (someone like an office manager) without involving any exercise of the power of governance in the sense of canon 129, §1, it could be licitly and validly entrusted to a lay person or a cleric (deacon). M. Morgante defends this view as follows: “The office of Moderator of the curia can be assigned by the bishop to any suitable person, cleric or lay; but it is preferable that it is entrusted to a priest in view of the direct relationships which exist between clerics and religious, and of the delicate nature of the ecclesiastical affairs it has to deal with. “19 G. Giuliani voicing Pagé’s view disagrees with Morgante and argues that the intention of the legislator is very clear, namely the office of Moderator, even if it per se may not entail exercise of the power of governance, ought to be conferred on a “priest,” preferably on a Vicar General.20 McDonough supports this view by suggesting that the requirement of “priesthood” for the appointment to the office of Moderator of the curia is “constitutive” and, hence, not subject to the dispensing power of the bishop (cfr. Can. 86).21 We should note, however, that the law clearly implies that the ideal candidate for the office of Moderator is, in the order of legislator’s preference, the Vicar General, the Episcopal Vicar or at least a priest. Would the appointment of a cleric (deacon) or a lay person to this office be invalid? In light of the different view points discussed above, the answers to this question would depend on how one defines the nature of the office.
According to canon 473, §2, the task of the Moderator is “to coordinate those things which pertain to the treatment of administrative affairs and to take care that the other members of the curia properly fulfill the office entrusted to them.” This task is carried out “under the authority of the bishop.” Three important points may be highlighted in these norms. First, the office of Moderator of the curia is certainly subordinate to the bishop who bears the ultimate responsibility for the administration of the diocese. Second, the principal task of the Moderator is “to coordinate” (“coordinare”) the “administrative responsibilities” of the curia. The fulfillment of this task may entail exercise of the executive governance. Third, the office also entails supervisory responsibility in relation to other members of the curia.
19. M. MORGANTE, La chiesa particolare net Codice di diritto canonico: commentario giuridico-pastorale, Milano, Edizioni Paoline, 1987, p. 213.
20. See G. GIULIANI, “I canoni generali sulla curia diocesana,” in apollinaris, 61 (1988), PP. 143-144; Also see PAGÉ, Les églises particulières, p. 68.
According to the first principle governing his office, the Moderator always functions “under the authority of the bishop.” This implies that the Moderator’s duties are part of the larger coordination and direction of diocesan affairs proper to the bishop. That does not imply, however, that the Moderator is the bishop’s delegate. In virtue of the law and in view of the principle of “subsidiarity,” the Moderator, once appointed, is entitled to fulfill the responsibilities of his office with a great deal of discretion and initiative.22
The first major role of the Moderator of the curia is “to coordinate those things which pertain to the treatment of administrative affairs.” Does the expression “administrative affairs” used in the canon exclude “pastoral activity” from the competence of the Moderator? During the Plenary session of the Code Commission in 1981, one of the members suggested that the introductory canon on the diocesan curia (cfr. The present canon 469) should include “pastoral action” in its definition. The suggestion stated: “[…] in the governance and pastoral action of the entire diocese, that is to say, in the care of souls, […].” This intervention was prompted by the omission of the phrase in the 1980 shcema. The response of the Secretary of the Commission to this intervention was: “The text can remain as is because governance comprise pastoral action, from which it can in no way be separated.”23 These developments concerned the competence of the diocesan curia whose raison d’etre is to offer assistance to the bishop in the “governance” of the entire diocese. According to the response of the Secretary of the Commission, the term “governance” includes both clearly reflected in canon 469. This canon makes the distinction between “pastoral action” and “administration” of the diocese. These two elements seem to be constructive parts of what is known as “governance.” According to canon 473, §2, the functions of the Vicar General and Episcopal Vicar are designated as “pastoral action” which is directly supervised by the bishop and not by the Moderator of the curia, and the “administrative affairs” are entrusted to the Moderator. This distinction can be traced in the development of the canon. The 1973 draft of the present canon 473, §2 extended the Moderator’s competence to “coordination of all works” (“coordination omnium laborum.”),24 which would naturally include “pastoral action” as well. But the 1977 schema changed this to “coordinate the works which pertain to the administration of the entire diocese.”25 This change is retained also in the present canon 473, §2 which appears to restrict the Moderator’s coordinating competence only to “administrative affairs,” that is, to purely technical-administrative functions of the curia. Current commentaries interpret the expression “administrative affairs” to mean just that. For example, L. Chiappetta describes the Moderator’s task as “specific technical-administrative activity of the curia.”26 A similar reading is found also in the new CLSA commentary: “This section of the canon seems to distinguish between the curial activity of the vicars, designating it as ‘pastoral’, and the curial activity of other, indicating that it is ‘administrative’. Should the diocesan bishop determine that it is in the best interests of the diocese to name a moderator of the curia, therefore, it would seem that the coordination function of this individual would be in relation to administrative activities rather than pastoral ones.”27 But a systematic understanding of the expression could lead one to adopt a much broader interpretation of the underlying concept. As explained above, in regard to the definition of the curia, the Code Commission itself clearly stated that the “administrative” and “pastoral” dimensions of the Episcopal office are inseparable. This would mean that the legislator considers “pastoral activity” to be an integral part of the governance of the entire diocese. Therefore, if understood in its broad sense, the expression “administrative affairs” could be extended to include within the competence of the Moderator also the “pastoral activities” committed by the bishop to the diocesan curia. The “pastoral activities” of the Vicar would not be subject to the Moderator’s supervision or coordination. That would be the bishop’s prerogative. Ultimately it is the bishop who is competent to determine the realm of Moderator’ responsibilities in the curia.
22. See CONLON, The Moderator of the Curia, pp. 170-171; PAGÉ, Les églises particulières, p. 69.
23. PONTIFICIA COMMISSIO CODICI IURIS CANONICI RECOGNOSCENDO, relation complecten syntehsim […], Typis polyglottis Vaticanis, 1981, p. 112; also in Communictiones, 14 (1982), p. 212.
24. See Communicationes, 5 (1973), p. 226.
25. Schema canonum libri II: De populo Dei, p. 117, canon 286, §1: “[…} coordinare labors quae ad universae dioecesis administrationem pertinent, […].”
26. See Luigi CHIAPPETTA, II Codice di diritto canonico: comment giuridico-pastorale, vol. I, 2nd ed. rev. and enl., Roma, Edizioni Dehoniane, 1996, p. 597: “specifica attività techno-administrativa della Curia.”
27. Barbara Anne CUSACK, “Chapter II: The Diocesan Curia [cc. 469-494],” commentary, in John P. Beal, James A. Coriden, Thomas J. Green (eds.), New Commentary on the Code of Canon Law, commissioned by THE CANON LAW SOCEITY OF AMERICA, New York, NY/Mahwah, MJ, 2000, p. 626.
When discussing the Moderator’s competence it is important also to take into consideration the relationship between the bishop and his vicars. According to canon 473, §2, “It is for the diocesan bishop himself to coordinate the pastoral action of the vicars general or Episcopal vicars.” And canon 480 requires the Vicars General and Episcopal Vicar to report directly to the bishop on more important matters, “both those yet to be attended to and those already dealt with.” Then, what is the relationship between the Moderator and the activities of Vicar General and Episcopal Vicars who are members of the curia? Are the Vicars subject to the Moderator’s coordinating task? Can their activities be exempted from the coordinating function of the Moderator of the curia? During the deliberations on the formulation of the present canon 473, §2, one of the members of the Code Commission had in fact raised this issue. The member observed: “Thus there is the absurd situation in which the Vicar General, who is the Moderator of the curia, is able t coordinate the work of those who are under the direction of the Episcopal Vicars, but not the work of those who direct them. Assuming that a portion of the administration of pastoral action belongs to each episcopal vicar, the Moderator would end up coordinating only the activity of those who carry out the directives of the vicars but not vicars themselves.”28
The primary intention of the legislator in making provision in law for a Moderator of the diocesan curia is to lessen the burden of the diocesan bishop so that the pastoral care of the people of God entrusted to his care may be properly and effectively carried out. Therefore, one should not conclude that the Moderator’s competence is restricted solely to the managerial-bureaucratic aspects of the vicars’ responsibilities, but not the deciding-controlling dimension.29 In other words, the Moderator could coordinate the pastoral-administrative and juridical-administrative activities of all members of the curia, including other vicars, “in ways established by the diocesan bishop.”30 In this sense, the Moderator would be “an executive agent of coordination, the one managing the flow of activity among the various curial components and between them and the bishop in pursuit of common goals.”31
28. See Communictiones, 13 (1981), p. 115.
29. See CONLON, The Moderator of the Curia, pp. 190-191.
30. See ALESANDRO, “Diocesan Organization,” commentary on cc. 469-494, in The Code of Canon Law: A Text and Commentary, commissioned by THE CANON LAW SOCEITY OF AMERICA, ed. by James A. CORIDEN, Thomas J. GREEN, Domald E. HEINTSCHEL, New York/ Mahwah, Paulist Press, 1985, p. 385; CONLON, The Moderator of the Curia, p. 193.
31. See CONLON, The Moderator of the Curia, p. 196.
The second major role of the Moderator, according to canon 473, §2, is “to take care that the other members of the curia properly fulfill the office entrusted to them.” This can be called the “supervising” function of the Moderator. The term “curare” used in this context suggests, as Pagé observes, a posture of superiority, a right to act which accompanies an office and a certain concrete power to exercise that right.32 This power is granted to the Moderator by law itself. Members of the curia are expected to accept direction and correction from the Moderator as their supervisor, although it would always be subject to review by the bishop.33
Who are the “other members” implied in the canon? Certainly, even if the Moderator is a Vicar General, he has no competence over other Vicars General or Episcopal Vicars, for they are not his vicars. Then who are these “others”? Conlon suggests that these would be the office-holder who provide services ranging from catechetical training to notarization of documents (included in this list would be professional and support staff and advisory bodies). As to the presbyteral and pastoral councils and the college of consultors, the Moderator has no competence to direct their activities in any way, because they offer assistance directly to the bishop, and should the bishop so decide,34 the Moderator could certainly coordinate the flow of their activities as well. Nor does the Moderator supervise or coordinate the activities of the diocesan tribunal. Although the diocesan Tribunal is part of the curia, the Moderator has no competence over its activities unless the bishop decides to entrust its coordination to him.
It is important to note that while the law attributes a supervisory role to the Moderator, its extent and concrete form depends on the bishop’s decision.
Among other duties of the Moderator specified in law are coordinating of curial acts (can. 747), and vigilance over the curial archives along with the chancellor (cann. 487 and 488).
The wise adage “entities should not be multiplied without necessity” applies aptly also to the institution of Moderator of the diocesan curia. Only a genuine pastoral need should be the motive for appointing a Moderator of diocesan curia.
32. PAGÉ, Les églises particulières, p. 71.
34. CONLON, The Moderator of the Curia, pp. 200-204.
2 – Episcopal Council
The institution of “episcopal council” is new in the life of the particular church. Its development in law was simultaneous to that of the Moderator of the diocesan curia. The first draft on the diocesan curia included a norm on Episcopal council. It read as follows: “Should the diocesan bishop consider it expedient for an ordered governance of the diocese, he can constitute an episcopal council. This council, which is in fact already present in several dioceses, consists of vicar general, episcopal vicars and certain other persons to be chosen by the bishop.”35 This text allowed the diocesan bishop the freedom to constitute an episcopal council if he considered it necessary for an ordered governance of his diocese. The text explicitly stated that this institution is already a reality in many dioceses. According to this formula of the canon, the membership of the episcopal council could include the vicars general and episcopal vicars, and also certain “other persons” chosen by the bishop. There was no qualification of these “certain other persons” except that they be chosen by the bishop. As the text read, they could be either clerics or lay persons. The 1977 schema retained the substance of this formula with one significant change. Canon 285, §3, which contained the norm on this specific issue read: “If he will have judged it expedient for an ordered governance of the diocese, the bishop may constitute for himself an episcopal council, consisting of vicars general and episcopal vicars and certain other clerics chosen by him.”36 While reiterating the optional nature of the Episcopal council as proposed in its previous draft, canon 285, §3 restricted its membership in comparison with the preceding formula. Nevertheless, the members could include “certain other clerics” to be chosen by the bishop himself. And “clerics” mentioned here could either be a priest or a deacon. But their membership would depend on the bishop’s choice. The membership in the Episcopal council became still narrower in 1980 schema.
35. Cosilium episcopal constituere potest Episcopus dioecesanus, si id expedire iudicet ad ordinatum dioecesibus regimen. Hoc Consilium, – quod de facto iam in multis dioecesibus adest – constat Vicariis generalibus, Vicariis episcopalibus atque aliis quibusdam personis ab Episcopo eligendis” (Commucicationes, 5 , pp. 225-226; emphasis added).
36. “Si id expedire iudicaverit ad ordinatum dioecesis regimen, Episcopus Sibi constituat Consilium episcopale, constans Vicariis generalibus et Vicariis episcopalibus necnon aliis quibusdam clericis ab ipso eligendis” (Schema canonum canonum libri II: De populo Dei , can. 285, §3, p. 116).
Canon 285 and 286 of the 1977 schema were reviewed by the study group on 14-19 April 1980.37 Two distinct views emerged during the discussion on the relevance and membership of an episcopal council. Some of the consultors questioned the need of the very institution of the episcopal council. They considered constitution of an episcopal council inopportune because they felt that it could attribute an excessively collegial character to diocesan administration. Therefore, they suggested its elimination from the Code. This would free the bishop to develop forms of coordination of his vicars’ pastoral activity suited to the situation of his particular church. Some other consultors argued in favour of retaining the institution. They claimed that its existence and usefulness in some dioceses would require certain canonical structure. In view of this difference of opinion, a compromise was reached. This compromise would allow retention of the Episcopal council with some modifications to avoid any confusion over the nature of its actions, that is to say, whether the decisions of the council would be collegial or merely consultative. First, the reference to “other clerics” of the 1977 schema was removed and, consequently, its membership was restricted only to the bishop’s his vicars. Second, any explicit mention of “governance” was removed from the canon and replaced by a statement of its finality such as: “for more aptly promoting pastoral action.” This suggestion was acceptable to the Commission’ membership because it meant that “the Episcopal council must be a complement and not an alternative to the presence of the diocesan bishop.”38 With these changes, canon 285, §4 because canon 393, §4 of the 1980 schema. But during the Plenary session of the Code Commission in October 1981, one member suggested that the Episcopal council should include others who direct diocesan pastoral offices, including priests who are not bishop’s vicars, religious and even lay people. The Secretary of the Commission responded in part that such a change in membership would alter the very nature of the episcopal council which constitutes “particular and strict cooperation with the diocesan bishop in those things which pertain to the entire pastoral governance of the diocese.”39These modifications were intended to clarify the very nature and purpose of the Episcopal council: to be an effective means of communication and cooperation between the bishop and his vicars in regard to their pastoral activities.40 With these changes the norm on Episcopal council became paragraph 4 of canon 473 of the 1982 schema. Except for some minor technical changes,41 this canon remained unchanged in the promulgated text.
37. For details of this discussion, see Communicationes, 13 (1981), pp. 111-117, 122-123.
38. “II Consiglio episcopale deve essere un complement e non una alternative alla presenza del Vescovo diocesano” (Communicationes, 13 , p. 117).
39. “[…] cuius est peculiaris et arcta cooperation cum Episcopo diocesano in iis quae ad universum regimen pastorale diocesis pertinent” (Communicationes, 14 , p. 213. Emphasis in the original).
40. For more details of the discussion of the Code Commission on this matter, see Giovanni GIULIANI, I canoni generali sulla curia diocesana (Estratto di tesi di dottorato), Roma, Università Pontifica Salesiana, 1988, pp. 33-34; also see McDONOUGH, The Moderator of the Curia, pp. 114-116.
41. For these technical changes, see GIULIANI, I canoni generali, p. 37.
The final paragraph of canon 437 establishes, always in view of the internal coordination of pastoral activities, an organism which pertains to the tradition of some particular churches; the Episcopal council. The common norm stipulates, “Where the bishop has judged it expedient, he can establish an Episcopal council. Consisting of the vicars general and Episcopal vicars, to foster pastoral action more suitably.” This norm leaves the constitution of the new organism to the discretion of the diocesan bishop. In other words, it is facultative, but its membership is restricted to vicar general and Episcopal vicars.
Is it possible for persons other than the bishop’s vicars to be members of this council? Chiappetta says that the Code Commission had clearly declared that inclusion of non-vicar priests would change the very nature of the Episcopal council in which only those who have the power of governance of the bishop participate.42 Therefore, Chiappeta argues that the Moderator of the curia himself who is not also a bishop’s vicar, and perhaps even the Judicial Vicar, are excluded from the Episcopal council because they are not mentioned in the canon.43 Whereas Morgante maintains that the Judicial Vicar must be part of the council or at least participate in it when matters pertaining to his office are discussed.44 Morgante goes further is suggesting that it would be appropriate for the bishop to permit the Moderator of the curia or the Secretary General, although strictly not members of the council, to participate in the council’s deliverations when matters pertaining to their ordinary competence are being discussed.45 Whereas Giuliani disagrees with Morgante and states that the components of the episcopal council cannot be other than those indicated in the canon: the vicars general and Episcopal vicars.46 Giuliani goes on to propose a different provision for the coordination of pastoral activities of the bishop in which his vicars participate. He says that the bishop can constitute two councils in the manner it is done in the Vicariate of Rome. The apostolic constitution Vicariae potestatis of Paul VI constituted two distinct councils: First, the Episcopal council (in the Vicariate its members are Cardinal Vicar, his vicar and auxiliary bishops). Second, the council of the curia composed of all components of the Episcopal council, and also the prelate secretary and officials in charge of matters to be dealt with.47 The second council would not be called “episcopal council” in the sense of canon 473, §4, but would certainly serve the purpose of mutual communication and coordination of the pastoral governance of the diocese. Thus Giuliarni’s proposal would in effect lead to constitution of two councils of the bishop, one of which would consist strictly of bishop’s vicars while the other would include besides the vicars, also heads of other institutes of the curia.48 This the suggestion would amount to multiplication of entities!
42. See Communictiones, 14 (1982), p. 213, canon 393.
43. CHIAPPETTA, II Codice di diritto canonico, p. 598.
44. See MORGANTE, La chiesa particolare, p. 598.
45. Ibid., p. 215.
46. GIULIANI, I canoni generali, p. 62.
47. See AAS, 69 (1977), p. 11.
48. See GIULIANI, I csnoni generali, p. 62, footnote 110; also his “I canoni generali sulla curia diocesana,” p. 146, footnote 110.
Understood in its strict sense, an Episcopal council would consist of bishop’s vicars. That means that all members of the council would have the ordinary power in virtue of their office. Could this imply that when they sit in council their power is collegial? Chiappetta correctly explains that while in council only the bishop has the power of governance, and the council has only a consultative function, nevertheless the bishop can give his vicars the task of implementing the decisions made in council.49 In other words, the decisions or resolutions made by the council will have only that juridic value which is determined by the diocesan bishop. It is important to note, however, that the consultative nature of this council does not diminish in anyway the effective contribution it can make to the decisions the bishop ultimately makes in regard to the governance of the entire diocese. The concrete forms these councils can take could vary depending on the actual circumstance of time and place. Essentially its role is not political but spiritual and pastoral. To be a true means of building up the Church, the council’s activities should be rooted in the life of prayers of its members. The council is not to burden the bishop through its decisions, rather its members should always keep in mind that the very reason for the council’s existence is to assist the bishop in assuming and fulfilling his pastoral responsibilities towards his flock. On the other hand, the bishop should not consider his council as an ornament merely to deck the impressive organization of his diocese, he should treat with respect and dignity the decisions and proposals made by the members of the council. Although the Codes continue to depict episcopacy in “monarchical” terms, the bishop must be open to a collegial spirit in governing his diocese by seeking in the appropriate solutions to the burning issues that concern the pastoral well-being of his people.
The juridic entities discussed in this presentation are intended by the supreme legislator to be instruments or means a diocesan bishop can use for offering more effective pastoral ministry to the people entrusted to his care. As the law stands, both entities are facultative in nature. Their establishment is to be determined by the bishop after considering the pastoral needs of his diocese. This decision is ultimately left to the discretion of the bishop. It seems more in line with the mind of the supreme legislator that the moderator of the curia should at least be a priest, although clear preference is evident in the law in favour of vicar general or Episcopal vicar. This quality has not been designated for the validity of the appointment but it would seem contrary to the mind of the legislator to do otherwise. The tasks to be fulfilled and the rights/obligations of this office should be clearly spelled out in the decree of its constitution. In large dioceses which may have many curia organisms or units, the office of moderator could be very helpful to the diocesan bishop. However, its constitution should be ultimately determined by the pastoral needs of the diocese and not by its sheer size. The episcopal council is also contemplated in law only in situations where dioceses have several vicars general and Episcopal vicar whose ministry has to be coordinated by the bishop. It is consultative by its very nature. It could offer concrete possibilities for more effective pastoral ministry in large dioceses.
49. See CHIAPPETTA, II Codice di diritto canonicao, p. 598; also see MORGANTE, La chiesa particolare, p. 214; GIULIANI, I canonic generali, p. 62; and his “I canoni generali sulla curia diocesana,” p. 146.