Unless the Pope formally abrogates the Order's rights, no Vatican department can investigate the Order – and certainly not the Secretariat of State

The dispute between the Sovereign Military Order of Malta and the Holy See’s Secretariat of State can be quite confusing. So much so that even the Secretary of State himself, Cardinal Pietro Parolin, seems to be having a hard time finding his place in the affair.

To recap: Cardinal Parolin has announced that a commission to investigate the dismissal of the Order’s Grand Chancellor will go ahead. He has said, according to recent leaks, that the Order is a “lay religious Order” which is to be of “service to the faith and to the Holy Father”. Therefore, he is alleged to have reasoned, the Holy See has the authority to intervene in the Order’s internal governance.

It is hard to believe that so seasoned a Vatican diplomat as Cardinal Parolin would make such a basically flawed legal argument. But if the quotations are an accurate representation of his thinking, then there are some serious misconceptions at work here.

The basic line of argument being advanced is that the Order is Catholic, therefore the Pope must be in charge, therefore the Holy See can intervene. Unfortunately, this is about as legally coherent as 2+2=5.

The Order of Malta is, indeed, a lay religious order. However, it is made explicitly clear that the obligations of religious obedience do not travel outside the hierarchy of the Order itself. This is detailed in the section of the Order’s constitution which treats its relationship with the Holy See. It says:

Religious members through their vows, as well as members of the Second Class through the Promise of Obedience, are only subject to their appropriate Superiors in the Order.
(Constitution of the Order, art. 4 §2; my emphasis)

Although the Order is Catholic, its constitution clearly separates it from the oversight of any Vatican department.

But, you might object, doesn’t the Pope have authority over any Catholic organisation? Well, yes – but there is only one way in which he can exercise that authority. In order to compromise the Order’s sovereignty, the Pope must first expressly abrogate the Order’s rights and laws (Constitution, art. 4 §3). Pope Francis has not done so. Until such time, the religious obedience of the Grand Master, and other professed knights or the Order, is commanded by the Pope “in accordance with the Constitution and the Code” (Code of the Order, art. 62), that is, fully respecting the Order’s independence and sovereignty regarding its governance.

For the Vatican commission to be legitimate, the Pope would need to sign a formal, legal act, officially and expressly abrogating the Order’s sovereignty and authorising the investigative commission to act. This formal act would need to be sent to the Order. If the Pope wanted Cardinal Parolin, or any other curial official, to have the power to authoritatively communicate with the Grand Master on his behalf, this too would need to be explicitly and legally set out by the Pope directly to the Grand Master, in a way which accounted for the necessary abrogation of sovereignty.

Those who insist on Cardinal Parolin’s right to intervene have confused the person of the Pope with the governing apparatus of the Holy See. “The Pope” does not mean every official in the Vatican. Yes, Cardinal Parolin’s letter asserts the alleged opinion of the Holy Father on the situation. But this is no more an official, formal, legal mandate than the Pope’s breakfast order is an infallible teaching.

Of course, Cardinal Parolin cannot really believe that the Order of Malta is under the oversight of the Holy See like any other religious order. If this were a serious legal argument, then the whole matter would have been referred to the Holy See’s Congregation for Institutes of Consecrated Life and Societies of Apostolic Life, not the Secretary of State.

All of this is without considering international law. Here the Secretariat of State’s rationale for intervening gets even more tenuous. The Order is a sovereign entity under international law. It is recognised as such by more than one hundred countries, it issues its own passports and stamps, it has permanent observer status at the UN. Even if the Holy Father were to expressly abrogate the Order’s constitution (an act that would have to come from him personally, not through a Vatican official), it is not at all clear what the consequences would be internationally and diplomatically for both institutions.

By undermining the sovereignty of another entity, the Secretariat of State’s intervention could have serious diplomatic repercussions for the Holy See itself. It also remains unclear how the commission could usefully make any headway, given that the Order rejects it as a manifest violation of the Order’s sovereignty, both under its own constitution and international law.

While the Pope is the authority which first granted the Order sovereign status, its independent diplomatic status and relationships mean it does not rely on the Pope for international legitimacy. How would the diplomatic world react if the Queen, under insistent advice from Boris Johnson, issued a decree revoking Canada’s sovereignty? The parallel is not exact, but it is not far off either.

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