In the Shadow of China

Notice and Comment Policymaking in Hong Kong and Taiwan
April 28, 2022

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Introduction

In recent years, the Chinese government has increasingly flexed its economic, political, and military muscles around the world. Close to its mainland home has been no exception, as the Chinese government has taken actions to pressure officials in Hong Kong and Taiwan. In Hong Kong, which operates as a special administrative region of China, the independence of judges, the Legislative Council, and the Chief Executive has been eroded in an effort to ensure that government decisions hew to the dictates of the Chinese Communist Party in Beijing. Although Taiwan is a self-governed state, the Chinese government regards it as a separatist province and regularly subjects its air defense zone to incursions by People’s Liberation Army fighter jets.

Both Hong Kong (as a former British colony) and Taiwan (as a multi-party democracy) make policy through approaches historically associated with North America and Western Europe. One prominent example is the notice and comment process, in which government agencies make public draft policies and solicit feedback on these proposals. In this analysis, we compare and contrast notice and comment policymaking in Hong Kong and Taiwan during the 2016-2021 period.

These six years constitute a salient time for analysis, coinciding with an increase in Chinese government authoritarianism and assertiveness vis-à-vis the outside world. To the extent that this assertiveness has been consequential, we might expect spillover effects in jurisdictions particularly susceptible to the influence of the Chinese government. Although both Hong Kong and Taiwan are part of Greater China, the Chinese government has the authority to constrain policymaking in Hong Kong in a manner well beyond its reach with respect to Taiwan. It is therefore reasonable to expect less robust notice and comment policymaking in Hong Kong than Taiwan during the 2016-2021 period. [1]

To examine this possibility, we have collected—from the Hong Kong and Taiwan governments—information about notice and comment policymaking. We focus on the notice and comment process because evidence suggests that administrative procedures are to some degree compatible with authoritarianism. In other words, it is plausible that the notice and comment process was robust during the period under analysis not only in Taiwan but Hong Kong as well.

Irrespective of the substance of the results, the analysis is oriented toward offering insight into the operation of administrative procedures in the shadow of Chinese authoritarianism. On the one hand, a relative dearth of robust practices in Hong Kong would indicate that the notice and comment process has not been immune from pressures that have characterized other elements of Hong Kong’s political system. On the other hand, a lack of difference across Hong Kong and Taiwan would suggest that notice and comment policymaking is to some degree resistant to authoritarian incursions against consultative processes.[2]

In what follows, we compare and contrast Hong Kong and Taiwan with respect to the frequency of notice and comment policymaking, the duration of comment periods, and government responsiveness to comments. Our analysis focuses on the operation of the notice and comment process in general as well as disaggregated by policy areas.

At the outset, it is important to note that both Hong Kong and Taiwan implement notice and comment policymaking through centralized online platforms, which serve as our primary data sources.[3] Hong Kong’s portal dates back to 1997, the time of the transfer of sovereignty from the United Kingdom to the People’s Republic of China. The Taiwan website contains information about notice and comment policymaking from 2016 to the present. Both Hong Kong and Taiwan carry out the notice and comment process under general guidelines, rather than highly specified requirements. For example, the Hong Kong government has not established precise standards for the duration of comment periods, but rather recommends that “sufficient time” be allowed for public feedback on proposed policies.[4]

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[1] Although the robustness of the notice and comment process can be operationalized in a variety of ways, we focus (as discussed below) on three aspects—the frequency of notice and comment policymaking, the duration of comment periods, and government responsiveness to comments.

[2] Alternatively, a lack of difference might suggest that Chinese authoritarianism has negatively impacted governance in Taiwan as well as Hong Kong. Although we cannot conclusively rule out this possibility, we are skeptical that geopolitical imbalances across the Taiwan Strait manifest in Chinese government influence over the implementation of administrative procedures in Taiwan. In general, we believe that Taiwan is a good baseline of comparison for Hong Kong, in that it shares the cultural, linguistic, and historical commonalities of Greater China while maintaining independence in its political system.

[3] These websites are https://www.gov.hk/tc/residents/government/publication/consultation/archives.htm and https://join.gov.tw/ for Hong Kong and Taiwan, respectively.

[4] Hong Kong’s “Guidelines on Public Consultation” are available at https://www.legco.gov.hk/yr03-04/english/panels/ca/papers/ca1117cb2-337-2e.pdf.