Notice and Comment Policymaking During Uncertain Times

The Case of Hong Kong

February 07, 2022

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Introduction

The notice and comment process—in which governments make public draft policies and solicit feedback on these proposals—is seen as a vehicle for promoting transparency, participation, and responsiveness in policymaking. According to the World Bank, notice and comment policymaking has the potential to reduce corruption in government, increase citizen compliance with government decisions, and foster higher quality laws and regulations.

The Hong Kong government has engaged in notice and comment policymaking for decades. In recent years, however, two events have shaken the foundations of Hong Kong’s political system. First, large-scale protests erupted in 2019 in response to a government proposal to permit the extradition of criminal suspects to mainland China. Massive demonstrations disrupted politics and everyday life, including universities, subway stations and the airport, and the Legislative Council itself—all of which were the scenes of sit-ins and violent confrontations. Second, the government has pursued a zero-COVID approach during the global pandemic. The approach’s strict quarantines, lockdowns, and travel bans threaten Hong Kong’s status as an international hub of culture, commerce, and trade.

In this commentary, we explore stability and change in Hong Kong’s notice and comment process during the uncertain times of the past few years. We have collected from the Hong Kong government information about notice and comment policymaking from 2013 to the present. We analyze this information as a means of exploring the following possibility. We posit that the protests and the pandemic have provided the government with opportunities to make policy with less transparency, participation, and responsiveness than in the past. This expectation is consistent with Hong Kong’s ongoing turn toward authoritarianism. For example, recent changes in the legislative and judicial systems have eroded the independence of judges and the Legislative Council, thereby ensuring that decisions hew to the dictates of the Chinese Communist Party in Beijing.

To assess this possibility, we compare notice and comment policymaking during the 2019-2021 period to previous years along a number of dimensions. Our aim is to appraise the extent to which the upheaval of recent years has been associated (if at all) with an erosion of the democratic nature of policymaking in Hong Kong, as manifested specifically in the notice and comment process. Our analysis focuses on the frequency of notice and comment policymaking, government disclosure of policy proposals, the duration of comment periods, and government responsiveness to comments.

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