observing the norms of the newly promulgated Code on the part of those who had
the authority and the juridical power to do so.

The text that the then President of the Pontifical Commission sent to the
Cardinal Prefect of the Congregation for the Doctrine of the Faith also made
reference to the current situation:

"I can well understand Your Eminence's concern at the fact that the Ordinaries
involved did not first exercise their judicial power in order to punish such
crimes sufficiently, even to protect the common good of the faithful.
Nevertheless the problem seems to lie not with juridical procedure, but with
the responsible exercise of the task of governance.

"In the current Code, the offences that can lead to loss of the clerical state
have been clearly indicated: they are listed in canons 1364 õ1, 1367, 1370,
1387, 1394 and 1395. At the same time the procedure has been greatly simplified
in comparison with the previous norms of the 1917 Code: it has been speeded up
and streamlined, partly with a view to encouraging the Ordinaries to exercise
their authority through the necessary judgement of the offenders "ad normam
iuris" and the imposition of the sanctions provided.

"To seek to simplify the judicial procedure further so as to impose or declare
sanctions as grave as dismissal from the clerical state, or to change the
current norm of can. 1342 õ2 which prohibits proceeding with an extra- judicial
administrative decree in these cases (cf. can. 1720), does not seem at all
appropriate. Indeed, on the one hand it would endanger the fundamental right of
defence - and in causes that affect the person's state - while on the other
hand it would favour the deplorable tendency - owing perhaps to lack of due
knowledge or esteem for the law - towards ambivalent so-called "pastoral"
governance, which ultimately is not pastoral at all, because it tends to
obscure the due exercise of authority, thereby damaging the common good of the
faithful.

"At other difficult times in the life of the Church, when there has been
confusion of consciences and relaxation of ecclesiastical discipline, the
sacred Pastors have not failed to exercise their judicial power in order to
protect the supreme good of the "salus animarum".

The letter then proceeds with an excursus on the debate which had taken place
during the revision of the Code prior to the decision not to include so- called
dismissal "ex officio" from the clerical state. It was considered, in fact,
that the causes which might have justified this procedure "ex officio" had
almost all been included among the offences for which dismissal from the
clerical state was already envisaged (cf. Communicationes 14 [1982] 85). Hence,
for precisely this reason, not even the new "Norms for Dispensation from
Priestly Celibacy" of 14 October 1980 (AAS 72 [1980] 1136-1137) made reference
to this procedure, which the previous Norms of 1971 (AAS 63 [1971] 303-308), by
contrast, had allowed.

"All things considered - the reply concluded - this Pontifical Commission is of
the opinion that Bishops must be suitably reminded (cf. can. 1389), whenever it
should prove necessary, not to omit to exercise their judicial and coercive
power, instead of forwarding petitions for dispensation to the Holy See".

"While agreeing on the fundamental requirement to protect "the
common good of
the faithful", the Pontifical Commission considered it dangerous to circumvent
certain practical safeguards, preferring instead to exhort those in positions
of responsibility to implement the provisions of the law.

"The exchange of letters between the Dicasteries was concluded, for the time
being, with a courteous reply, dated the following 14 May, from the Prefect of
the Congregation to the President of the Pontifical Commission:

"I am pleased to inform you that this Dicastery has received your valued
opinion on the possibility of providing for a swifter and more simplified
procedure than the one currently in force for the imposition of sanctions by
competent Ordinaries on priests guilty of grave and scandalous conduct. In this
regard, I wish to assure Your Eminence that the arguments you have put forward
will be carefully considered by this Congregation".

Pastor Bonus extends the Competences of the Congregation (June 1988) The issue
appeared to be formally closed, but the problem had not been resolved. In fact,
the first important sign of a change in the situation took place via a
different route, just one month later, with the promulgation of the Apostolic
Constitution Pastor Bonus, which altered the overall structure of the Roman
Curia as established in 1967 by 'Regimini Ecclesiae Universae', and reallocated
the competences of individual Dicasteries. Article 52 of this pontifical
legislation, still in force today, clearly laid down the exclusive penal
jurisdiction of the Congregation for the Doctrine of the Faith, not only with
regard to offences against the faith or in the celebration of the sacraments,
but also with regard to "more serious offences against morals". The
Congregation for the Doctrine of the Faith "examines offences against the faith
and more serious ones both in behaviour or in the celebration of the sacraments
which have been reported to it and, if need be, proceeds to the declaration or
imposition of canonical sanctions in accordance with the norms of common or
proper law" (Pastor Bonus, 52).

This text, evidently suggested by Cardinal Ratzinger's Congregation on the
basis of its own experience, is directly related to what we are examining, and
it is even more significant in view of the fact that the previous
"draft" of
the law - the 'Schema Legis Peculiaris de Curia Romana', prepared three years
earlier - did little more than reproduce the formulation of the Dicastery's
competences made in 1967 in 'Regimini', saying simply that the Congregation
"delicta contra fidem cognoscit, atque ubi opus fuerit ad canonicas sanctiones
declarandas aut irrogandas, ad normam iuris procedit" (art. 36, Schema Legis
Peculiaris de Curia Romana, Typis Polyglottis Vaticanis 1985, p. 35).

With respect to the previous situation, then, the change introduced by the
Apostolic Constitution Pastor Bonus is of some importance, all the more so
since this time it occurred within the context of the norms of the 1983 Code,
with reference to the offences defined there as well as to the "proper
law" of
the Congregation itself. Within a normative framework governed by the above-
mentioned criteria of "subsidiarity" and
"decentralization", then, the
Apostolic Constitution Pastor Bonus now executed a juridical act of
"reservation" to the Holy See (cf. can. 381 õ1 CIC) of a whole category of
offences that the Supreme Pontiff entrusted to the exclusive jurisdiction of
the Congregation for the Doctrine of the Faith. It is quite unlikely that a
choice of this kind, better defining the competences of the Congregation and
revising the Code's criterion regarding who should apply these canonical
penalties, would have been implemented at all if the overall system had been
working well.

The norm in question, however, was still insufficient at the practical level.
Elementary requirements of the certainty of law now made it necessary to
identify exactly what these "more serious offences" were, both
those against
morals and those committed in the celebration of sacraments, that Pastor Bonus
was entrusting to the Congregation, withdrawing them from the jurisdiction of
Ordinaries.

Two Subsequent Interventions of Importance The events described thus far, as we
have seen, occurred within a short period of time: a few months during the
first half of 1988. In the years that followed - to put it in general terms -
efforts were still being made to address emergency situations arising within
the Church's penal sphere by following the general criteria of the 1983 Code as
broadly summarized in the letter from the Pontifical Commission for the
Interpretation of the Code of Canon Law. There were moves to encourage the
intervention of local Ordinaries, sometimes accompanied by efforts to
streamline the procedures, if necessary by means of a special law, mainly
through dialogue with the Episcopal Conferences concerned. Later, in the course
of the 1990s, there were numerous meetings and proposals of this kind,
involving different Dicasteries of the Roman Curia, as can be readily
documented.

Yet repeated experience confirmed the inadequacy of these solutions and the
need to find others of greater scope, operating on a different level. Two
solutions in particular significantly altered the framework of canonical penal
law on which the Pontifical Council for Legislative Texts has been working in
recent months, and both were instigated by the current Pontiff, in perfect
continuity with the concerns he expressed in the above-mentioned letter of
1988.

The first initiative, now quite widely known, concerns the preparation in the
late 1990s of the Norms on the so-called 'delicta graviora', which effectively
implemented article 52 of the Apostolic Constitution Pastor Bonus by
specifically indicating which crimes against morals and which crimes committed
in the celebration of sacraments were to be considered "more
serious" - thus
bringing them under the exclusive jurisdiction of the Congregation for the
Doctrine of the Faith.

These Norms, finally promulgated in 2001, inevitably appeared to "go
against"
the criteria provided by the Code for the application of penal sanctions, so
much so that in many areas they were immediately branded
"centralizing" norms,
whereas in reality they were responding to a particular need for
"completion",
aimed in primis at resolving a serious ecclesial problem regarding the proper
functioning of the penal system and in secundis at ensuring uniform treatment
of this type of case throughout the Church. To this end the Congregation had
first to prepare the relevant internal procedural norms, and likewise to
reorganize the Dicastery so as to harmonize this judicial activity with the
Code's rules on processes.

In the years after 2001, moreover, and on the basis of the juridical experience
acquired, the then Prefect of the Congregation obtained from the Holy Father
new faculties and dispensations to deal with the various situations, to the
point of actually defining new offences. In the meantime it was recognized that
the "grace" of dispensation from priestly obligations and the consequent
reduction to the lay state of clerics found guilty of very serious crimes was
also a grace given 'pro bono Ecclesiae'. For this reason, in some particularly
serious cases, the Congregation did not hesitate to ask the Supreme Pontiff for
the decree of dismissal 'ex officio' from the clerical state in the case of
clerics who had committed appalling crimes. These subsequent modifications are
now codified in the Norms on the 'delicta graviora' published by the
Congregation last July.

There is, however, a second and much less well-known initiative of the current
Pope that I should also like to mention briefly, since it has certainly helped
to change the overall application of the Church's penal law, namely his
intervention as a Member of the Congregation for the Evangelization of Peoples
in the preparation of the special faculties that, similarly by way of necessary
"completion", were granted to that Congregation for purposes of addressing
other kinds of disciplinary problems in mission territories.

It is not hard to understand that, owing to the scarcity of resources of every
kind, the obstacles to implementation of the Code's penal law system were felt
particularly keenly in mission territories dependent on the Congregation for
the Evangelization of Peoples, which, broadly speaking, represent almost half
of the Catholic world.

Hence, in its Plenary Assembly of February 1997, the Congregation decided to
request from the Holy Father "special faculties" which would
allow it to act
administratively in specific penal situations on the margins of the general
provisions of the Code: the Relator of that Plenary Assembly was the then
Prefect of the Congregation for the Doctrine of the Faith. It is public
knowledge that these "faculties" were updated and extended in 2008, while
others of a similar nature and manner, have since been granted to the
Congregation for the Clergy.

It seems unnecessary to add more. Specialized studies have already been
published which offer a good account of the variations in the Church's penal
law system produced by all these initiatives. Experience will tell to what
extent the modifications to Book VI that are now in preparation, keeping in
mind these new faculties, will succeed in restoring balance. For present
purposes, though, my principal intention has been to highlight the crucial role
played, in this more than 20-year process of renewing penal discipline, by the
decisive action of the current Pope, to the point that - together with many
other practical initiatives - it truly constitutes one of the "constant
elements" in the activity of Joseph Ratzinger.
.../VIS 20101202 (4170)

SUMMARY

--- MPost/386 v1.21