PCILT, Presentation of Religious for Ecclesiastical Office, 19 January 1994. Private.
The prior provincial of a religious institute requested clarification from the Pontifical Council for the Interpretation of Legislative Texts regarding a reply
of the Congregation for the Evangelization of Peoples that was reported in the March 1992 English edition of Omnis Terra. This inquiry from August 10, 1993, addresses the binding force of the norms for vicariates and prefectures apostolic contained in the 1929 Instruction, Quum huic vis-à-vis the ius vigens, and in particular, c. 682, §1 of the 1983 Code of Canon Law.
I am the prior provincial of the Eastern Province of _____________ which is entrusted with the mission territory known as the Apostolic Vicariate of ___________ in the Republic of _________________.
There is also a vicar provincial in the missions, Fr. ___________, who also is a major superior and enjoys all of the powers of a major superior except those reserved to higher authority.
The apostolic vicar is his excellency _______________.
Bishop ________________, Father ____________, and I enjoy most amicable and cordial relations. We all share the common interest of seeing the local church grow and flourish while at the same time protecting the discipline of our religious life. Thus, there is no practical difficulty that lies behind my writing, but merely a doubt about the correct interpretation of a reply from a dicastery of the Roman Curia.
Bishop ___________, Fr. _____________, and I would like a clarification of a reply of the Congregation for the Evangelization of Peoples (Propaganda Fide) that was reported in the March 1992 English edition of Omnis Terra. In this reply the Congregation stated: “… it is clear that the Instruction Quum huic of 1929 has never been annulled,” and in the case of Apostolic Vicariates and Prefectures, but not dioceses, its provisions on the commissio “maintains its entire force and continues to be regulated fundamentally by the same Instruction Quum huic” (p.127).
Bishop __________ has encouraged me to write to you for a reply to our doubt, as follows:
Whether the whole of the December 8, 1929, Instruction Quum huic is to be considered binding law on all Vicariates and Prefectures Apostolic;
Whether only those parts of said 1929 Instruction are binding that are not contrary to the ius vigens.
In particular, there is one provision of the 1929 instruction which is contrary to the Code of Canon Law and to our proper law. Regarding
appointments to ecclesiastical offices in the missions, the 1929instruction says that the religious superior is to propose names to the mission superior, i.e., to the local Ordinary (AAS 22 : 115). Our approved constitutions, n. 202, and c. 682, §1 give the major superior (vicar provincial or prior provincial) the right of presentation (cc. 158-163).
My view is that the ius vigens ought to prevail over an instruction from 1929. However, Bishop ______ remains doubtful, and for that reason we would like to have a clarification so that it will be clear to all how we should proceed with future appointments.
As a doctor of canon law, I would respectfully like to make the following observations in favor of the second interpretation:
1. Vicariates and prefectures apostolic are equated in the law with dioceses, nisi aliud constet (c. 368; cf. c. 18). One must presume that a vicariate or prefecture apostolic is equated in all things with a diocese, unless the law clearly states the exceptions. Since the law does not make an exception for vicariates or prefectures apostolic in the application of c. 682, §1, that norm is applicable to them as well as to dioceses.
2. Canon 6, §1, 2°states: “Hoc Codice vim obtinente, abrogantur: aliae quoque leges, sive universales sive particulares, praescriptis huius Codicis contrariae, nisi de particularibus aliud expresse caveatur.” Any universal or particular law in force prior to November 27, 1983, that is contrary to a provision of the Code is abrogated, unless express provision was made regarding a particular law.
3. Canon 34 gives rules regarding the interpretation of instructions. Instructions may not derogate from laws, and they lack force if they do. Moreover, instructions cease to have force when the law ceases on which they are based. Because the 1929 instruction was based on missionary law of the past, provisions in it that are contrary to the ius vigens lack all force.
4. The reply of the Congregation de Propaganda Fide, cited in the March 1992 issue of Omnis Terra, appears to be a private reply “addressed …to the Bishops concerned.” It is not found in the Acta Apostolicae Sedis, nor is there any indication that the reply is binding on all apostolic vicariates and prefectures. Nor does the reply anywhere state that the Congregation has been granted competency to interpret the law authentically or derogate from the law.
5. The reply of Propaganda Fide says the system of commissio continues to be regulated “fundamentally” by the instruction Quum huic. The Congregation does not say that this 1929 instruction is wholly in force, even when certain of its provisions may be contrary to universal and proper law.
With great filial respect, I humbly request of your Holiness the favor of a reply to this question from the Pontifical Council for the Authentic Interpretation of Legal Texts.
The prior provincial received the following reply of January 19, 1994, from the Pontifical Council for the Interpretation of Legal Texts:
In your letter of 10 August 1993, you requested some clarifications about the Instruction Quum huic. Since your enquiries concern the meaning of the law, as well as its right application, this Pontifical Council has studied them carefully, together with the Congregation for the Evangelization of the Peoples.
Your question “whether the whole of the December 8, 1929,Instruction Quum huic is to be considered binding law on all Vicariates and Prefectures Apostolic; or whether only those parts of said 1929Instruction are binding that are not contrary to the ius vigens.” Concretely then, “if ecclesiastical nominations should be regulated by the aforesaid Instruction (the religious superior proposes names to the Apostolic Vicar or Prefect), or they should be regulated by c. 682, §1 of the Code of Canon Law (the right of presentation).”
Concerning the validity of the Instruction Quum huic in its entirety, I am glad to inform you that only those norms that are not contrary to the Code of Canon Law remain in force. The Congregation for the Evangelization of Peoples, in its reply to an Apostolic Vicar of Bolivia (cf. Omnis Terra, n. 226 of March 1992, pp. 126-128), deliberately chose the word “fundamentally,” because it is clear that those norms which are contrary to the Code in this Instruction can no longer be applied. The Congregation desired, above all, to affirm that the ius commissionis, that has been discussed by some authors, has not been abrogated by the universal law of the Church.
With the exception of this general principal, it is clear that the ecclesiastical nominations of religious, who are working in an Apostolic Vicariate are governed by c. 682, §1 of the CIC.
In January 1994, the prior provincial sent the response from the Holy See to Bishop _________________, Apostolic Vicar of _________________, for his information. The prior provincial recommended to the bishop that a copy of the same decision be kept on file in order that his successor would be apprised of it.
PCILT, 19 January 1994, Presentation of Religious for an Ecclesiastical Office, RRAO (1994): 6-10.