An Ineligible Papal Elector
Canonically, Gulbinowicz's ballot would have been null (1983 CIC 171 § 1, n. 2), but the election of the next pope would have been valid, provided that the null ballot did not provide the necessary vote for election (1983 CIC 171 § 2). There's the rub, of course.
Conclave actions are super-secret. Should suspicions that an ineligible elector participated in a conclave arise after an election (and, increasingly, I think we should assume that most such things eventually do come out) doubts about the election could have been dispelled only by disclosing, at least to some extent, what the actual voting was. That possibility itself is obviously cause for some concern, to say nothing of the influence, especially in early rounds where vote margins are usually smaller, a null ballot might have had on other electors, let alone that the final vote itself might have been close.
Cardinal Gulbinowicz retired (albeit, belatedly) from pastoral duties due to age about one year ago. At that point, he was eligible for no further leadership roles save participating in a papal conclave. Whatever reasons might have accounted for the cardinal's earlier deceptions about his age, these reasons ceased upon his retirement from pastoral duties. Continued deception threatened the liceity, perhaps even the validity, of the one role he fraudulently retained. Cardinal Gulbinowicz should have quietly notified the Holy See of his ineligibility for a conclave at the time his other resignation was accepted, instead of the Church having to deal with this matter amid an obvious crisis in an elderly pope's health. +++
See also: Dr. Peters' List of Current Papal electors.
PS: The 1983 Code of Canon Law authorizes a "just penalty in accord with the seriousness of the offense" on those who fabricate or use falsified ecclesiastical documents (such as baptismal certificates), and on those who use other kinds of false documents (such as birth certificates) in ecclesiastical matters (say, to claim eligibility for ecclesiastical office). See 1983 CIC 1391. The statute of limitations for such crimes is three years and does not even begin to run until the offense, if it is habitual, has ceased (1983 CIC 1362). The Church, justly renowned for having a long memory, should recall the turmoil that the faithful have suffered in past centuries as a result of irregularities in papal elections; her officials should certainly consider canon law and ecclesiastical history when reaching a "tacit agreement with Cardinal Gulbinowicz" on this matter.
Update, February 4: Well, this Canon Law Blog has generated some interesting questions (that's not surprising: we are, after all, talking canon law here). So, in no special order:
1. Why should we punish an 81 year old man?
Who says we should punish anyone yet? We have only press reports to go on so far, and several factors important for canonical prosecution of crime are not mentioned therein. What is described, however, provides enough basis to wonder whether canon law was violated in this case. Certainly, as with any crime alleged against the elderly, one can't help but see old age itself as a heavy burden and take that into consideration. But, if a crime was committed in this case, ignoring it could provide more fodder to those who already point to cases in Church and State where the powerful are held to no account when they break the law. But all of this is the pope's call. (See question 7 below).
2. What would be an appropriate punishment?
I don't know. The Legislator only specifies "a just penalty" in a c. 1391 case, and this phrase allows great flexibility in responding to a particular situation. One idea occurs to me--assuming a violation of canon law occurred: a published apology for not having declared ineligibility for a conclave sooner and for causing confusion and embarrassment at an already stressful time in the Church's life. But again, it's the pope's call. (See question 7 below).
3. Gulbinowicz was trying to dodge the Red draft. Is that so wrong?
I tread lightly here, never having been called upon to risk my own life for my country. Also, some important questions about the legitimacy of the Communist government in that territory at that time need consideration but are beyond my ken. But at least one factor should also be recalled: troops were being mustered to repel an unjust invader (Hitler's army). In any case, this interesting question sheds no light on the propriety of a cardinal later using falsified documents many decades after their confection to retain offices and duties in the Church, and that's what this case concerns.
4. Aren't seminarians immune from the draft?
Under canon law? No. Canon 289 claims no such exemption today. Under Pio-Benedictine law, however, a very broad exemption from military duty, extending even to seminarians, was asserted (1917 CIC 121) by the Church, though it was often ignored by civilian governments. Still, ecclesiastical authority seems to have begun backing off its broad assertion in the 1920s, and by the early-to-mid 1950s it had de facto abandoned it (certainly as far as seminarians were concerned). This interesting question, though, sheds no light on the propriety of a cardinal using falsified documents many decades after their confection to retain offices and duties in the Church, and that's what this case concerns.
5. Gulbinowicz did not fake his certificates, his parents did. Why punish him?
Who actually did what and when is not clear here, but I have to wonder how a typical 21 year old man would react to his parents suddenly telling him he was only 16, suggesting some level of complicity in the deed. In any case, Canon 1391 scores not simply fabricating documents, but also using fabricated documents, and that, it seems, is what the cardinal did for many, many decades, indeed, until just days ago. For example, a dispensation from nonage would have been thought to have been required for Gulbinowicz's priestly ordination in 1950 (see 1917 CIC 975) raising questions about whether the subterfuge was being continued past the war, and so on, until 2004 when the cardinal finally tendered his archiepiscopal resignation as requested to do by 1983 CIC 401, but in reality doing so some six years after the designated time. His admission of conclave ineligibility came just days ago, roughly a year and a half after it was owed.
6. He was obviously able to function in office long after "official" retirement age came and went. Should he be punished for working on?
Diocesan bishops are requested to submit their resignations at age 75 in virtue of 1983 CIC 401 § 1, a provision enacted by John Paul II, and cardinals lose the right to participate in conclaves at age 80 in virtue of UDG 33, a provision drafted and enacted by John Paul II. Questions about the propriety of such rules are best addressed to Pope John Paul II (as was done, in fact!). In the meantime, I would observe that many secular institutions and businesses have mandatory retirement ages. However much one might disagree with such policies, one is not justified in lying about one's age in order to retain a job.
7. Whether the cardinal admitted this on his own or maybe someone finally reported him, I don't know. But he must be terribly embarrassed by now. Shouldn't we just let it drop?
Perhaps so. Canonical cases involving cardinals may be heard by the pope alone (1983 CIC 1405 § 1, n. 2). Pope John Paul II knows Church history, canon law, what young Catholic men suffered during those terrible days of war or repression, and the record of the man in question. I'm certainly content to let him decide how best to handle the situation.