Protopresbyter-staurophor Velibor Dzomic: Election of the Patriarch and epidemics - church-legal analysis

The question * of the date of the election session of the Holy Assembly of Bishops at which the 46th Serbian Patriarch should be elected is primarily a church issue and primarily concerns the bishops, clergy, monastics and the faithful of the Serbian Orthodox Church.

Having in mind the importance of the Saint Sava throne, as well as the dignity and role of the Serbian Patriarch on a wider level, the issue of electing the Serbian Patriarch, with which the issue of the date of the election session of the Holy Synod of Bishops is connected, has a wider, social significance, and exceeds the framework of Serbia.

Electoral or Holy Assembly of Bishops?

The "Electoral Assembly" is mentioned in public as a church body that is responsible for the election of the Serbian Patriarch. The current provisions of the Constitution of the Serbian Orthodox Church do not recognize such a body. This is an expression that was in the Constitution of the Serbian Orthodox Church from 1931 to 1967, when the provisions on the Electoral Assembly were repealed.

The electoral body that elects the Serbian Patriarch, in accordance with the provisions of Article 42 of the Constitution of the Serbian Orthodox Church, is the Holy Assembly of Bishops, but in this case, in addition to diocesan bishops, it is constituted by active vicar bishops. The Assembly has only one church-constitutional competence in the election session - the election of the Serbian Patriarch. With the election of the new Serbian Patriarch, the election session of the Holy Assembly of Bishops ends.

The Holy Assembly of Bishops can be convened in regular or extraordinary session, but, having in mind the 37th canon of the Holy Apostles, it is convened twice a year (in practice often only once a year, depending on many factors and circumstances, and in some local Churches rarely). In our country, in colloquial terms, the autumn session in the media and the public is often marked as extraordinary in relation to the spring session of the Holy Assembly of Bishops, which, again most often, is marked as regular in the media and the public. The spring and autumn sessions of the Holy Assembly of Bishops are always, in accordance with the canonical and ecclesiastical order, of a regular character, and each session, conditioned by church needs and circumstances, has the status of an extraordinary session, apart from the spring and autumn sessions.

Deadline and place

From the Church's point of view, the deadline for scheduling the Holy Assembly of Bishops for an election session is primarily and essentially a church-legal issue. The norm from Article 45, paragraph 1 of the Constitution of the Serbian Orthodox Church stipulates that "the election of the Patriarch shall take place at a session of the Holy Assembly of Bishops, extended and active vicar bishops, no later than three months from the day the patriarchal throne is vacated." This is the last valid and generally binding constitutional provision, which was adopted by the Holy Assembly of Bishops in 2005 as part of the amendments to the Constitution of the Serbian Orthodox Church and was published in Glasnik, the official organ of the Serbian Orthodox Church (No. 6/2005).

According to the stated norm, the deadline of three months for the election of the Serbian Patriarch at the election session of the Holy Assembly of Bishops is imperative and, as a rule, it cannot be extended. As can be seen, the constitutional provision prescribes the beginning of the deadline for convening the election session of the Holy Assembly of Bishops. The constitutional term begins to run from the day of vacating the patriarchal throne, which can be vacated for various reasons - death, resignation, health inability of the Patriarch to perform his duties (it must be longer or permanent, with adequate evidence of competent medical institutions) or overthrow (shift) of the Patriarch due to some canonically determined canonical guilt. Strictly speaking, the Holy Assembly of Bishops, which is scheduled for the election of a new Serbian Patriarch within the imperative period, and even just a few days after the death and burial of the Patriarch, is in accordance with the Constitution of the Serbian Orthodox Church. This is especially important in the event of a resignation, medical incapacity or overthrow of the Patriarch.

Regardless of the fact that there is no explicit constitutional prohibition, the Holy Synod of Bishops, which, pursuant to Article 45 paragraph 2 of the Constitution of the Serbian Orthodox Church, is competent to convene an election session of the Holy Assembly of Bishops, always has in mind that such a session is not scheduled before the forty-day commemoration of the late Patriarch. In our Church, as in other local Orthodox Churches, there is a blessed practice that the election of a new abbot or abbess of a monastery is not held until the forty-day commemoration of the late abbot or abbess of the monastery, let alone the Serbian Patriarch. These are the days of blessed remembrance, but also the days of mourning and prayer during which Orthodox bishops, priests, monks, nuns and the faithful offer their prayers for the repose of the soul of the dead who performed important church obedience with special zeal and love. In the Serbian people, there is, moreover, a centuries-old practice or custom that even sons do not share property until the forty-day commemoration of the deceased parent has been performed.

The Constitution of the Serbian Orthodox Church does not, unlike the deadline for convening the Holy Assembly of Bishops for the election of the Patriarch, explicitly prescribe the place of holding the Holy Assembly of Bishops. Pursuant to the provisions of Article 59, paragraph 2 of the Constitution of the Serbian Orthodox Church, the Holy Synod of Bishops is competent to decide, under the presidency of the Patriarch, on the date of the beginning of the regular and extraordinary convocation of the Holy Assembly of Bishops. If the patriarchal throne is vacant, in accordance with the provisions of Article 62 of the Constitution of the Serbian Orthodox Church, the Patriarch's duty is performed by the Holy Synod of Bishops under the presidency of the oldest metropolitan or bishop who is a member of the Holy Synod of Bishops. The competence, but with a great deal of freedom, in choosing the place for holding the election session of the Holy Assembly of Bishops belongs to the Holy Synod of Bishops. It is logical that, as in previous cases, it will be in one of the historical seats of the head of the Serbian Orthodox Church (Pec Patriarchate, Belgrade, Sremski Karlovci), but it can also be scheduled in another city or monastery.

Election of the Serbian Patriarch in complex epidemiological conditions

It should be borne in mind that the Church carries out her evangelical mission in this world, in real time and on given occasions, and that she is not separated from them. In addition, the Church operates in specific states and their legal systems. This is an important fact, which gained special significance at a time when the whole world has been facing an emergency situation due to a pandemic caused by a coronavirus. It can be said that a kind of emergency situation (and not a state of emergency in the legal sense of the word) occurred in the whole world, even in our country, which significantly influenced the life of modern man. In addition to the impact on human health and life, the coronavirus epidemic has significantly affected human movement and various types of meetings and gatherings of people. Of course, bishops, priests and the faithful of the Serbian Church are not exempt from that. One of the most common questions, after the question about the deadline for the election of the new Serbian Patriarch at the election session of the Holy Synod of Bishops, is the question of the (im)possibility of convening an election session of the Assembly in complex and risky epidemiological conditions. The answer to that question must be found through respecting the imperative deadline for the election of the Patriarch, on the one hand, and the legal norms of state bodies that regulate the movement and gathering of people, on the other hand.

Today, the Serbian Orthodox Church has forty-two dioceses, of which fifteen are located in Serbia, two in Montenegro, five in Bosnia and Herzegovina, five in Croatia, six in several European countries, five in several countries in North and South America, and three in Northern Macedonia and one in Australia. In addition to the diocesan bishops, active vicar bishops are also members of the Holy Assembly of Bishops at the election session. There are currently five vicar bishops in the Serbian Church, two of whom are in Serbia, and one in Northern Macedonia, Russia and Montenegro respectively. Retired bishops are not members of the Holy Assembly of Bishops. In total, having in mind the four vacant episcopal chairs, there are forty-three bishops, diocesan and vicar, who constitute the Holy Assembly of Bishops at the election session. It is known that in different countries where the hierarchs of the Serbian Church serve, different measures and legal norms apply in order to prevent and suppress the spread of coronavirus, and that should be kept in mind.

Question of quorum

Apart from the imperative constitutional deadline within which the Holy Assembly of Bishops must be convened for an election session, the next important issue in this case is related to the presence of bishops, members of the Holy Assembly of Bishops, at the election session. The provision from Article 43 of the Constitution of the Serbian Orthodox Church stipulates that the quorum, i.e. the minimum number of bishops present at the election, but also at every other session of the Holy Assembly of Bishops, is at least two thirds of the total number of members of the Holy Assembly of Bishops, which is in today’s case - considering that the Archbishopric of Belgrade-Karlovac and the Diocese of Montenegro-Littoral, Valjevo and Temisvar are vacant (it is in a specific state of longer administration) - the personal presence of at least twenty-nine of the forty-three diocesan and vicar bishops is necessary, which represents a two-thirds majority.

The condition for the presence of members of the Assembly is related to the possibility of their arrival, in a complex epidemiological situation and with the validity of various measures for travel from the headquarters of their dioceses to the place where the Assembly will be held. Bearing in mind that the largest number of bishops of the Serbian Orthodox Church are in Serbia, Bosnia and Herzegovina, Montenegro, Northern Macedonia and Croatia, and that they, like all other citizens, with or without medical tests, depending on the measures prescribed for movement, can come freely to Belgrade, to conclude that in such an epidemiological situation it is possible to fulfil the binding church-constitutional condition of at least two thirds of the hierarchs present at the Council.

Of course, it is best to ensure the presence of all bishops at the Assembly, but one should keep in mind the constitutional provision from Article 43 paragraph 2 of the Constitution of the Serbian Orthodox Church which stipulates that "absent bishops may authorize other diocesan bishops to vote in their place; one hierarch can be authorized with only one vote”.

In addition, on May 20, 2015, the Holy Assembly of Bishops, under the presidency of the Patriarch Irinej of blessed repose, passed a decision retaining the said constitutional norm, but also extended it by a provision according to which bishops administering vacant dioceses have the right to vote on behalf of such diocese as well. Furthermore, it should be known that it is a canonical and constitutional obligation of every diocesan and vicar bishop to attend the session of the Council. Bishops who would be justifiably absent for any reason, have the right to entrust their vote to other bishops, respecting the constitutional and council's restriction that one bishop may be authorized with only one vote, and this is good practice in the Holy Assembly of Bishops.

In such an epidemiological situation, and even in a more complex one (until the closing of state borders), it is possible, having in mind the constitutional provision and the parliamentary decision of a more recent date, to enable the fulfilment of the conditions prescribed by the Constitution of the Serbian Orthodox Church on election of a new Serbian Patriarch. The eventual justified absence of certain hierarchs (up to a third of the total number of members of the Assembly) would not diminish the legitimacy of the elected Serbian Patriarch, because they also, indirectly, in accordance with church legal norms, have the opportunity to participate in the election of the Patriarch.

Holy Synod of Bishops or "public gathering"

Having in mind the fact that public gatherings are either forbidden or limited to a certain number of persons indoors, the question arises: does the session of the Holy Assembly of Bishops, which in the future session has forty-three members, constitute a public gathering in the legal sense of the word? The answer is no.

The Holy Assembly of Bishops is the highest Church body of a hierarchical character, whose work is prescribed by the Constitution of the Serbian Orthodox Church and the Assembly Rules of Procedure, so it does not belong to public gatherings in the sense of that legal expression. The Assembly, therefore, does not represent a public gathering for which approval is issued or which can be prohibited by a decision as an administrative act of a state body. After all, sessions of the National Assembly (250 deputies), many working bodies of the Assembly with professional and auxiliary staff, the Government of the Republic of Serbia and other collegial state bodies and expert bodies are held in the Republic of Serbia.

In the specific case of the upcoming election session of the Holy Assembly of Bishops in complex epidemiological conditions, care must be taken, primarily to preserve the health of the hierarchs of the Serbian Orthodox Church and persons who come in contact with them, to respect health measures (adequate large hall, physical distance, disinfection and so on). Observance of these measures, important for the preservation of health in general, does not constitute an obstacle to the convocation and work of the Assembly. The election session of the Holy Assembly of Bishops in complex epidemiological conditions can, in order to respect health measures, may be held in the Cathedral church of Saint Sava in Vracar, or in its crypt, or in the church hall of a larger area. During the epidemiological crisis, our Church has repeatedly called on the faithful to adhere to health measures, so their respect in this case would not disturb the course of the Assembly in any way.

Procedure in case of closing state borders or state of emergency

The new issue is related to the potential closure of state borders if the epidemic spreads on a much larger scale. In that case, the Holy Synod of Bishops, as the second in rank in the hierarchy of church-constitutional bodies, according to the Constitution of the Serbian Orthodox Church, has no right to change the imperative constitutional deadline of three months for scheduling the Holy Assembly of Bishops and electing a Patriarch. Given that the Holy Assembly of Bishops is the competent ecclesiastical body for amendments to the Constitution of the Serbian Orthodox Church, then from such an - undesirable, but potentially possible - situation, in order to respect the Constitution of the Serbian Orthodox Church, the written consent of members of the Holy Assembly of Bishops for prolonging the deadline for convening the Assembly in the election session for the purpose of electing a new Serbian Patriarch.

The exception would be a situation in which a state of emergency would be declared. Pursuant to the provisions of Article 99 paragraph 1 item 5 of the Constitution of the Republic of Serbia, the National Assembly declares a state of emergency and abolishes it on the basis of Article 105 paragraph 2 item 2 of the Constitution of the Republic of Serbia. The state of emergency in the legal sense is not the same as the state of urgency. Pursuant to the provisions of Article 200, paragraphs 2 and 3 of the Constitution of the Republic of Serbia, the state of emergency may last for a maximum of ninety days, and after the expiration of that period, the National Assembly may extend the decision on the state of emergency for another ninety days. A state of emergency, if the National Assembly is unable to meet, pursuant to the provisions of Article 200 paragraph 5 of the Constitution of the Republic of Serbia, may be declared jointly by the President, the President of the National Assembly and the Prime Minister under the same conditions as the National Assembly. In the event of a state of emergency, measures may be prescribed to derogate from human and minority rights guaranteed by the Constitution. There are other norms of the Constitution of the Republic of Serbia regarding the state of emergency, but they are not relevant in this case.

In case of declaring a state of emergency, it would be a well-known fact, so the Holy Synod would not have to obtain the consent of the members of the Assembly to extend the deadline for the election of the Patriarch prescribed by the Constitution of the Serbian Orthodox Church, which the Holy Synod informs them of other important ecclesiastical decisions. The Holy Synod would have the obligation to convene the Holy Assembly of Bishops in an election session immediately after the end of the state of emergency.

Given that the patriarchal throne was vacated by the repose of the blessed Patriarch Irinej on November 20, 2020, the procedure for completing the election of a new Patriarch in any situation, except in the case of a state of emergency, according to the Constitution of the Serbian Orthodox Church, should be completed by February 19, 2021.

One historical example

In the recent history of the Serbian Church, we had an example when from March 1941, that is, from the beginning of the Second World War on our soil, until May 1947, i.e. until the return of Patriarch Gavril (Dozic) from captivity and his subsequent medical treatment, no session of the Holy Assembly of Bishops was held. All Church affairs were managed at that time by the Holy Synod of Bishops under the presidency of Metropolitan Josif (Cvijovic) of Skopje, who at that time had the status of a deputy member in the Holy Synod. The situation in the war, as well as in the post-war period, was more than difficult, but the nave of the Church was steered wisely and responsibly. The Holy Synod submitted to the Holy Assembly of Bishops an exhaustive Report on its work from 1941 to 1947, which was adopted by the Assembly. The state of war and the inability of Patriarch Gavril to perform his patriarchal duties were an objective reason for many years of not convening the Holy Assembly of Bishops.

Ceremony in the Patriarchate after the enthronement of Gavril Dozic as Patriarch of the Serbian Orthodox Church in 1938.

The election of the new Serbian Patriarch must be legal and legitimate, which means that it must be carried out in accordance with the sacred canons, the Constitution of the Serbian Orthodox Church and the consecrated practice of the Serbian Church. The Holy Synod is responsible to the Holy Assembly of Bishops and is the only one competent to make a decision on convening the Holy Assembly of Bishops for an election session. The decision of the Holy Assembly must be in accordance with the holy canons, the conditions prescribed by the Constitution of the Serbian Orthodox Church, which are cumulative and must be fulfilled, and the overall epidemiological situation.

The norm from Article 45, paragraph 1 of the Constitution of the Serbian Orthodox Church stipulates that "the election of the Patriarch shall take place at a session of the Holy Assembly of Bishops, extended and active vicar bishops, no later than three months from the day the patriarchal throne becomes vacant."

* * *

In our Church, as in other local Orthodox Churches, there is a blessed practice that the election of a new abbot or abbess of a monastery is not made until the forty-day commemoration of the deceased abbot or abbess of the monastery, let alone the Serbian Patriarch.

* * *

In total, having in mind the four vacant episcopal chairs, there are forty-three bishops, diocesan and vicar, who constitute the Holy Assembly of Bishops at the election session.

* * *

The procedure for the completion of the election of a new Patriarch in any situation, except in the case of the introduction of a state of emergency, in accordance with the Constitution of the Serbian Orthodox Church, should be completed by February 19, 2021.

(The author is the protopresbyter-staurophor, Ph.D and coordinator of the Legal Council of the Metropolitanate of Montenegro and the Littoral)

* The analysis is exclusively of ecclesiastical and legal character. It serves to perceive church-legal and state-legal norms in the conditions of a worsened epidemiological situation and represents personal opinion of the author.