Canon 377 § 5 of the 1983 Code states “In the future, no rights and privileges of election, nomination, presentation, or designation of bishops are granted to civil authorities.” Frankly, the canonical theorist in me has always been uncomfortable with Canon 377 § 5 (it has no parallel in Eastern law) in that the provision seems to be at odds with the important legal maxim “Par in parem non habet imperium”, that is, an equal (the pope who legislated Canon 377) cannot bind an equal (a later pope who might wish to disregard this kind of canon). But the law clearly says what it says.
Now, to judge from usually reliable news sources, the granting of certain rights of what look like, at least, “nomination” (in the English sense of the word, which differs somewhat from the Latin) or “presentation” (beyond the narrow sense of that phrase in religious law where it is usually encountered) of episcopal candidates seems to be what Pope Francis has in mind for China. At any rate, Joseph Cardinal Zen (emer. Hong Kong) seems to think so and his views always need to be considered very seriously in such matters.
Setting aside, though, the possibility that such a plan might not be, in the end, what Francis actually has in mind, and prescinding for the moment from the possibility that Canon 377 § 5 might have been written too broadly to begin with, it is important to realize that the norm itself rests on some very strong Conciliar roots.
The Second Vatican Council’s decree on bishops, Christus Dominus(1965) 20, stated: Since the apostolic office of bishops was instituted by Christ the Lord and pursues a spiritual and supernatural purpose, this sacred ecumenical synod declares that the right of nominating and appointing bishops belongs properly, peculiarly, and per seexclusively to the competent ecclesiastical authority. Therefore, for the purpose of duly protecting the freedom of the Church and of promoting more conveniently and efficiently the welfare of the faithful, this holy council desires that in future no more rights or privileges of election, nomination, presentation, or designation for the office of bishop be granted to civil authorities. The civil authorities, on the other hand, whose favorable attitude toward the Church the sacred synod gratefully acknowledges and highly appreciates, are most kindly requested voluntarily to renounce the above-mentioned rights and privileges which they presently enjoy by reason of a treaty or custom, after discussing the matter with the Apostolic See.
The kind of language suggests that more than temporary expediencies are at work behind Canon 377 and that, therefore, more than temporary expediencies should be considered before disregarding it.
A number of countries still enjoy a concordat-based right to prior notice of pending episcopal appointments in their lands, this, to allow time for exchanges of views concerning same (Exegetical CommII/1:759), but a few others have, in whole or in part, surrendered their rights in these matters (GB&I Comm 216). The trend may be small, but it is welcome.
The Holy See / China negotiations are not, it seems, limited to episcopal appointment matters, and prudence will, as always, have to temper the application of principles. Still, let’s hope that Church-State negotiations in one very tense corner of the world don’t result in unintended Church-State consequences for others.
Addendum: A few months ago George Weigel made points worth recalling here.