2.5. INTRODUCTION: LAWFULNESS AND VALIDITY OF ACTS
The provincial chapter is a community act, whose value and consequences transcend the provincial community and the time at which it takes place.
The provincial chapter in fact elects delegates for the General Chapter and draws up proposals for the latter. In addition it can make decisions which, after the approval of the Rector Major with the consent of his council (cf. C 170), have binding force for all the confreres of the province, including those who have not taken a direct part in the decision-making.
Its realisation therefore is governed by norms which guarantee that its acts are valid and lawful. These norms are listed in the universal law and in our own proper law (Constitutions and General Regulations), from which the provincial chapter derives its authority.
The observance of the laws concerning validity and lawfulness, and precision in compiling official documents, ensure clarity and expedition at successive stages of the work and eliminate delays, reference back, explanations and sanations.
As a service to provincials and moderators of provincial chapters the following list of norms and juridical indications is provided. These norms refer to:
- Canonical erection of houses
- Calculation of number of confreres and the various lists needed
- Minutes of the elections
- Special cases
- Formal indications
2.5.1 Canonical erection of houses
The canonical erection of the house is indispensable (cf. can. 608, 665§1) before the confreres can meet in an assembly which has the power of validly electing the delegate to the provincial chapter, and before the president of such an assembly of the confreres, who is the Rector according to C 186, can take part by right in the chapter (C 173, 5).
The document of erection should be in the house archives or those of the province.
For individual houses which existed before 1926 as communities in their own right (and not “filiali” i.e. dependent on another community) it is sufficient that there be evidence of its existence before that date in which houses were canonically erected without individual documentation. The same form of erection was made for the houses of Poland existing before 1930.
It is necessary therefore:
a) to verify in good time the canonical erection of each house;
b) to verify that in houses recently canonically erected a Rector has been appointed;
It should be remembered that “the one in charge” of a canonically erected house, if he has not been appointed Rector, cannot take part by right in the PC and cannot organise the election of the Delegate of the community to the PC.
c) to put in hand the necessary procedure for the canonical erection of those houses not yet erected, before the election of the delegates.
For the canonical erection of a house the Provincial must ensure that it has at least three confreres (cf. can.115 §2); after consulting his council and obtaining the written consent of the diocesan bishop or the equivalent (can. 609 §1), the Provincial must make formal application to the Rector Major (cf. can.608-610); and finally have received from the Rector Major himself the decree of the canonical erection (cf. C. 132 § 1,2).
d) to indicate the way that canonically erected houses that do not have six confreres should meet together so as to elect the delegate to the PC and his substitute (cf. R. 163).
In the case of canonically erected houses with less than six confreres the norms of R 163 apply: if possible the provincial should arrange that they meet together so as to form the number of at least six members under the presidency of the rector who is senior by first profession. Thus united they will elect the delegate for the provincial chapter and his substitute. If however because of special circumstances the members of a house with less than six professed members cannot join with another in like condition the provincial will join the community with less than six professed members to a larger one (with six or more professed) and together the members of the two communities with equal rights (both active and passive) will proceed to the election of the delegate and his substitute for the provincial chapter. It should be remembered too that the rector even of a community with less than six professed members (provided it be canonically erected) takes part in the provincial chapter by right.
e) to assign to a canonically erected house those confreres who belong to a house not yet canonically erected.
In the case of houses not canonically erected the provincial will assign the group of confreres concerned to a house already canonically erected in which they can fulfil their duties and exercise their rights as electors together with the confreres of that house. It should be remembered that the “one in charge” of a house not canonically erected does not take part by right in the PC.
A verification must be made to see that the appointments of those who take part by right in the provincial chapter are in order and have not lapsed. This is especially important in places where the provincial chapter takes place at a time when there is normally a change of personnel and new assignments.
An appointment is in order when:
a) it was made in accordance with the Constitutions;
b) the person appointed has taken possession of his office in the manner prescribed;
c) his term of office has not expired.
The Superior Council, on 23.6.1978, made the following decisions concerning entry into office and its cessation:
- the appointment of confreres to various offices, at either local or provincial level, becomes effective from the moment that the confrere formally takes over the office;
- such confreres remain in office until their successors formally take over the same office; this must happen not more than three months after the expiry of their mandate.
What has been said above is to be applied, case by case:
- to provincials and superiors of vice-provinces or special circumscriptions (cf. C 162, 168);
- to members of provincial councils (cf. C 167);
- to superiors of provincial delegations (cf. C 159);
- to rectors (cf. C 177);
- to directors of novices (cf. C 112).
For a vice-rector, given that with the approval of the provincial he can take the place of the rector if the latter is seriously impeded (cf. C 173, 5), there must be a formal document regarding his appointment as vice-rector. Sufficient for this purpose is the letter of obedience given to the confrere. There must also be a formal document indicating that the provincial has recognized the serious impediment preventing the participation of the rector in the provincial chapter and approves his substitution by the vice-rector.
2.5.3 Calculation of number of confreres and the various lists needed
The calculation of the number of confreres who belong to a province (or a vice-province) for purposes of the provincial chapter is very important. It determines:
a) the number of delegates of the province (or vice-province) who take part in the provincial chapter (cf. C 173, 7; R 161-166);
b) the number of delegates which the province (or vice-province) sends to the General Chapter (cf. C 151, 8; R 114-115, 118)
For circumscriptions with a special statute both the composition of the provincial chapter and the number of delegates to the General Chapter are laid down in the decree of erection of the circumscription concerned.
On this account it is very important to have the following lists of confreres.
A general list of confreres belonging to the province made for purposes of the PC.
A list of those who take part in the chapter “by right”;
A list of confreres having “active voice”;
A list of confreres having “passive voice’.
The norms governing the compiling of each of these lists are as follows:
18.104.22.168. A general list of confreres belonging to the province (or vice-province) for purposes of the PC.
It should be noted that this list of confreres belonging to the province “for purposes of the provincial chapter” does not coincide with the list that is asked for each year for statistical purposes; the latter includes also confreres in “irregular” situations.
The following are to be considered as belonging to the province (or vice-province) for the purpose of the PC:
A) confreres who made their first profession in the province (or vice-province) and are still resident in it at the time the list is compiled (C 160);
B) confreres who came from another province (or vice-province) as a result of a definitive transfer and who still reside in the province at the time the list is compiled (cf. R 151);
The making of definitive transfers belongs to the Rector Major (cf. R 151). Definitive transfer is considered to have taken place in the following cases:
- confreres who in the act of erection of a new province or vice-province are assigned to it (cf. ASC 284, p. 68, 3.2);
- missionaries who return definitively to their home country and are assigned by the Rector Major to the province he considers most suitable for their condition
- all those for whom the Rector Major (or the Vicar General) has issued a decree of definitive transfer.
C) confreres who at the time the list is compiled reside in the province (or vice-province), though coming from another province (or vice-province) on temporary transfer, in accordance with the norm of art.151 of the Regulations;
Temporary transfer is brought about:
either by a mandate of obedience (e.g. when a confrere is sent by obedience to exercise an office (rector, director of novices, teacher, etc. in another province), as long as the mandate lasts;
or by agreement between two provincials, when a confrere is sent to help in another province (cf. R 151).
The confreres who have been transferred, even if only temporarily, are to be included and vote only in the province where they are actually working.
D) confreres who belong to the province (or vice-province) by one of the above-mentioned titles: (A, B, C), but who are temporarily absent for lawful reasons.
In accordance with R 166 the following are to be considered as “lawfully absent” (and hence to be included in the list):
a) confreres of the province (or vice-province) who at the time the list is made are living temporarily and by express mandate of their own provincial of origin in a Salesian house of another province (or vice-province) for specific reasons of study, health or work received from their own provincial;
The confreres referred to here, those temporarily absent for reasons of study, health, or for work given them by their own provincial, are not “transferred”, even temporarily, to another province. They
- vote in the house where they are resident (outside their own province) for the election of the delegate of the community;
- but for the election of the delegate of the provincial community they are included in the provincial list of their own province.
It should be noted that the work given them by their own provincial, which is referred to here must be effectively a work for their own province of origin. This is evidently not the case of a confrere who resides and works in an interprovincial house: in a formation community or an interprovincial study centre, for instance, the formation or teaching personnel belong in all respects to the province of the territory in which the house is situated, and are counted only in that province. Here it is a matter of “temporary transfer” as long as their assignment lasts.
b) confreres who have received from their own provincial permission for “absentia a domo” (cf. can.665, §1) or who have received from the Rector Major (or from the Apostolic See) the indult of “exclaustration” (cf. can 686). Confreres who are “exclaustrated” (can.686) or “absentes a domo” (can.665), and whose permission to be absent has not expired, are Salesian religious and therefore to be included in the general list. Nevertheless:
- those exclaustrated in accordance with common law (can.687) are deprived of the right of active and passive voice;
- those “absentes a domo” can be deprived of the right of active and passive voice in the judgement of the provincial especially when leave of absence is granted for vocational reasons, at the time the concession is granted; cf. the letter of the Vicar General of 20.01.1985.
To be still more precise the following, although still belonging to the province (or vice-province), must not be counted for purposes of the provincial chapter and must therefore not be included in the above-mentioned general list:
a) confreres who have made a formal request for dispensation from priestly or diaconal celibacy; or who have made a formal request for secularization or for dispensation from perpetual or temporary vows;
The practice is that for the purposes of the provincial chapter, confreres who have made a formal request to leave the Congregation are not counted, even though the request is still under consideration and has not reached a definitive conclusion
b) confreres who are unlawfully outside community for any reason i.e. confreres in “irregular” situations.
It will be opportune to keep in mind the following norm, given by the Rector Major on the occasion of the SGC and to be considered still valid. Transfers from one province to another which took place without the prescribed formalities, and for which there are no clear facts or documents, are to be considered definitive and hence with the loss of all effects of the former membership after ten consecutive years of residence in the new province.
The “general list” of the confreres of the province is the one to be used for calculating
- both the number of delegates of the provincial community to the provincial chapter (one for every 25 or fraction of 25 members: R 165, 3),
- both the number of delegates to the GC: one if the total number of confreres is less than 200, two if equals or exceeds 200 (R. 114 as modified by Deliberation n.16 of GC27, in proceedings of the General Chapter 27°, n. 91).
As soon as this general list has been compiled, a copy is to be sent to the Moderator of the GC28, according the norms and the forms he provides. It is his duty to verify the calculations of the individual provinces (or vice-provinces), so as to ensure the validity of the election of delegates to the General Chapter.
22.214.171.124. List of those who take part in the provincial chapter “by right”.
This is a list which the provincial or the moderator of the provincial chapter will communicate to the confreres, so that they know which members attend the chapter by right, in view of the elections at provincial level.
In accordance with C 173 the following are members “by right” of the provincial chapter:
the provincial (or superior of a vice-province);
the provincial councillors;
the delegates of the individual provincial delegations;
the moderator of the provincial chapter;
the rectors of canonically erected houses, even if the number of confreres is less than six;
the director of novices.
As was said earlier, the composition of the chapter of the circumscriptions with a special statute is laid down in the respective decree of erection.
126.96.36.199. Lists of confreres having “active voice” (electors).
They are of two kinds of lists:
A) List for the election of the delegates of each community to the PC.
This list is compiled in each community and includes all perpetually and temporarily professed confreres who reside in the community concerned, including those of other provinces (or vice-provinces) who are there temporarily for reasons of study, health, or for a mandate received from their own provincial of origin (cf. R 165,2).
B) Provincial list for the election of delegates of the provincial community to the provincial chapter.
To this list, which is important for the election at provincial level, belong all the confreres, both perpetually and temporarily professed, included in the “general list” of the province, except those who are deprived of active and passive voice.
Those deprived of active and passive voice, even though they be included in the general list of the confreres of the province, are:
a) confreres who have an indult of exclaustration, in accordance with can. 687;
b) confreres who have received permission for “absentia a domo”, and to whom in receiving such permission the right to active and passive voice was not granted.
In the case of the “absentes a domo”, their deprival of active and passive voice must be clear from the document by which the provincial (with the consent of his council) grants permission for absence; cf. the letter of the Vicar General of 20.01.1985.
188.8.131.52. Lists of confreres with passive voice (eligible for election).
They are of three kinds of Delegates: Delegates of the community for the PC, Delegates of the province for the PC, and Delegates of the province for GC28. For this reason there are three types of lists:
A) List of confreres eligible for election to the provincial chapter as “delegates of a community”.
It includes all the perpetually professed members of the community (including those of other provinces residing there even if only for reasons of study and health),
- except for those who are already members by right of the provincial chapter (cf. list 184.108.40.206)
- and those deprived of active and passive voice.
B) List of confreres eligible for election to the provincial chapter as “delegates of the province.”
This list includes all the perpetually professed members on the “general list” of the province (list 220.127.116.11), with the exception of:
- those who are already members of the provincial chapter by right (list 18.104.22.168),
- the delegates already validly elected by the communities,
- confreres deprived of active and passive voice: those exclaustrated and “absentes a domo” to whom the right to active and passive voice was not granted.
C) List of confreres eligible for election to the GC
For the election within the provincial chapter of the delegate or delegates of the province to the General Chapter, it should be kept in mind that all the perpetually professed on the “general list” (list 22.214.171.124) are eligible for election, except:
- the provincial, who is a member of the General Chapter by right;
- Rector Majors emeriti, present in the province, who are also members by right of the General Chapter;
- confreres deprived of active and passive voice.
2.5.4 Minutes of the elections
A) The rules for voting and scrutinies for the Delegate of the local communities are set out in arts.161-163 of the General Regulations (cf. also C 153).
The corresponding minutes of the election of delegates of the local communities and their respective substitutes must be drawn up on the appropriate forms and be examined by the relevant provincial commission.
This provincial commission for the examination of the minutes of the election of the delegates of the communities will be appointed by the provincial in agreement with the Moderator of the provincial chapter.
B) The rules for voting and scrutinies in the voting for delegates of the province to the PC are set out in art.165 of the Regulations.
The corresponding minutes of the election of the delegates of the province must contain the following details:
- the date of the scrutiny,
- the names of the scrutineers,
- an indication that the procedure required by the Regulations has been observed,
- the results.
The minutes drawn up on the appropriate forms, must be endorsed by the signatures of the one presiding over the scrutiny and of the scrutineers.
C) The rules for voting and scrutinies in the voting for the delegate(s) of the province to the GC28 are set out in art. 161-162 of the General Regulations (cf. also C. 153).
The minutes relating to the election of delegates to the GC28 and their substitutes must be drawn up only on the special forms provided for the purpose by the Moderator of the GC28 and in accordance with the instructions they carry.
These minutes must be sent without delay to the Moderator of the GC28, who will pass them to the appropriate juridical commission appointed by the Rector Major for the prescribed examination (cf. R 115).
2.5.5 Special cases
A) Salesian Bishops, even though retired from office and resident in a province, have neither active nor passive voice, and if they are invited to the provincial chapter they do not vote. The same norm applies to Bishops reinserted in Salesian communities (cf. AAS 1986, p.1324).
B) Rector Majors emeriti have both active and passive voice in the local community in which they are inserted and in the election of delegates of the provincial community; but if they are elected as delegates to the provincial chapter either of the local community or the provincial community they have active voice in the provincial chapter but not passive voice, since they are already members by right of the General Chapter.
2.5.6 Formalities for compiling the lists of confreres
1. Names of the confreres are to be numbered progressively.
2. Names are to be given in alphabetical order and spelled as in the Annuario for 2012.
3. Use capital letters for the PATERNAL SURNAME and lower case for the Christian name.
4. Indicate by the appropriate sign whether the confrere is
a) Priest (P),
b) Deacon (D),
c) Lay Salesian (L),
d) “clerical” student, (candidate for the priesthood) (S).
5. Indicate by the letter “t” if the confrere is in temporary vows.
6. If a member of the provincial chapter, indicate the title to participation:
a) by right
b) delegate of local community
c) delegate of provincial community.