[Editor’s note: Yesterday, Crux contributing editor Austen Ivereigh argued that Pope Francis’s intervention with the Knights of Malta brings a chance for needed reform. Today, Kurt Martens, a Professor of Canon Law at the Catholic University of America, contends it’s legally dubious and risks undermining respect for the rule of law.]
After suffering a stroke on August 7, 1981, Jesuit Superior General Pedro Arrupe, SJ, could no longer continue his service to the Society and had wanted his assistant to take over. Pope St. John Paul II, however, proceeded to appoint Father Paolo Dezza as his personal delegate to lead the Jesuits until the thirty-third General Congregation was convoked in the fall of 1983 to accept the resignation of Arrupe and elect his successor.
It was this scenario, nicknamed the “Jesuit Playbook,” which apparently was used to end a conflict within the Sovereign Order of Malta. But the comparison between the Jesuits and the order does not fly. Yet the fine distinctions are not always clear to everyone, and the successive events of these past days and weeks call for serious legal reflection.
The Order of Malta is not, like the Jesuits or the Franciscans, just another religious institute. Granted, there are religious aspects, for example, the profession of religious vows of the first rank in the Order, and a long history and tradition, but the order is first and foremost a subject of international law in its own right, and not subordinate to another subject of international law, the Holy See.
The sources of the order’s law are the Constitution, the Code of the Order, and, in addition and ancillary to these two, canonical legislation. The Grand Master can further issue legislation to provide for what is not covered by the Constitution and the Code.
Moreover, international agreements, customs and privileges of the Order, and the Code Rohan – a code in force on the island of Malta until it was invaded by the French in 1798 and the order lost its territory, and in as far as this Code Rohan is not in contradiction with the current norms – make this legal system complete.
A special place is foreseen in the order’s law to regulate its relations with the Holy See, but it is clear that the Holy See has no jurisdiction over the internal governance of the order. There are diplomatic relations between the two, and the Holy Father appoints a Cardinal Patron to see to the spiritual welfare of the members of the order. Yet, this cardinal has no governance role whatsoever within the order.
It thus came as a surprise that the Press Office of the Holy See released a statement on Tuesday, January 25, 2017, according to which the Grand Master had resigned from office the day before in an audience with Pope Francis, and adding that the Holy Father had accepted this resignation.
From a purely legal point of view, this statement is highly problematic: while there is a privileged relation between the Order of Malta and the Holy See, there is no governance role for the Holy See in the Order of Malta.
Article 16 of the Constitutional Charter stipulates that the resignation from office by the Grand Master must be accepted by the Sovereign Council and, to be effective, communicated to the Holy Father, but in no way accepted by him.
Similarly, the process to elect the Grand Master does not provide for the intervention of the Holy See in the form of an approval: the newly elected Grand Master informs the Holy Father of his election and takes the oath in the presence of the Cardinal Patron (article 14 of the Constitutional Charter). This oath resembles the oath any Head of State takes when assuming office.
Interestingly enough, a day before the announcement of the resignation of the Grand Master, the Holy See Press Office announced that Pope Francis had confirmed the canonical election of the new prelate of Opus Dei (although it incorrectly added that the pope had subsequently appointed him): yet, this is an example where the Code of Opus Dei, a personal prelature erected by the Holy See and governed by canon law, explicitly provided for such an intervention.
Opus Dei is not a sovereign entity, and has no standing at all in international law.
Unfortunately, the legal reasoning used in this saga is, in general, of poor quality. In a letter of January 25, 2017, Cardinal Pietro Parolin, the Vatican’s Secretary of State, wrote that all the acts of the Grand Master and the Sovereign Council after December 6, 2016, are null and void.
Provided one can follow and accept his reasoning – why would the prime minister of one sovereign entity declare the acts of another sovereign entity null and void? – logic then leads to the conclusion that the resignation of the same Grand Master and him convoking the Sovereign Council to accept that resignation are also invalid acts.
There is also another reason why the resignation may be invalid: If indeed the Grand Master was told to resign during an audience with the pope and had to write his letter of resignation during that audience, as certain news outlets have reported, it is questionable that the necessary freedom to make such an act of resignation was present.
And what are we to make of the confusion in the various letters that have been made public? The letter of January 25 by Parolin states that a papal delegate will have governance in and over the order and that no immediate election of a new Grand Master will take place, while the pope’s letter of January 27 to the members of the Sovereign Council says the papal delegate will only oversee the spiritual renewal of the Order.
What can we learn from this unfortunate history between the Holy See and the (Sovereign) Order of Malta? At least two main points can be raised.
First and foremost, the position of the Order of Malta under international law is similar to the one of the Holy See: both are not countries, yet they are both recognized as subjects of international law, capable of maintaining international relations with countries and other international entities.
But when one takes a handbook on international law, at best the Holy See and the Order of Malta can be found in the chapter entitled “Special cases.” By undermining the position of the Order of Malta, getting involved in its internal governance and threatening its independence, the Holy See has created a precedent that should not be repeated.
It could, in the long run, threaten its own position in the international field.
That brings us to the second point. Pope Francis, in a 2013 address to the Pontifical Council for the New Evangelization, talked about the need for credible witnesses who make the Gospel visible by their lives as well as by their words.
John Paul I, in his only address to the diplomatic corps accredited to the Holy See, summarized the service of the Holy See as two-fold, first by participating at the level of governments or international entities in the search for better solutions to the problems of the world, and, second by forming consciences through the proper pastoral activity of the Church.
The Holy See has a neutral position, and can therefore speak freely and disinterestedly. The authority of the Holy See is therefore first and foremost moral in nature. That authority is much needed in today’s rapidly evolving world, and will be more and more needed.
It is to be hoped that the adventure with the Order of Malta, and what appears to be the ignoring of the rule of law, has no lasting consequences for the position and authority of the Holy See – particularly at this time, when it is precisely the rule of law to which we appeal to protect the most vulnerable in our society such as the unborn, immigrants and refugees.
Dr. Kurt Martens is a Professor of Canon Law at the Catholic University of America in Washington, D.C.