Financial and Fiscal Commission v Davids and Another

The Financial and Fiscal Commission (FFC), a constitutional body, sought to review and set aside the appointments of Shafeeqa Davids and Claire Horton as senior researchers (post level 13). The appointments were made by Mr. Tseng, the acting Chief Executive Officer, who was delegated to make appointments only up to post level 12. He therefore lacked the authority to appoint the respondents. The irregularity was a bona fide mistake by Mr. Tseng and the FFC's Human Resources Department, occurring at the very end of an otherwise fair and transparent recruitment process. No corruption or malfeasance was alleged. The respondents had been in their positions for just under two years and had relied on the FFC's representation that the acting CEO had the requisite authority.

• Whether the appointments of the respondents by the acting CEO, who lacked delegated authority, were inconsistent with the principle of legality and therefore invalid under section 172(1)(a) of the Constitution.
• Whether the court should exercise its discretion under section 172(1)(b) of the Constitution to set the appointments aside or decline to do so on just and equitable grounds.

(i) Declared the appointment of the first respondent on 30 May 2022 inconsistent with the principle of legality and invalid; (ii) Declared the appointment of the second respondent on 25 January 2023 inconsistent with the principle of legality and invalid; (iii) Despite the declarations of invalidity, the appointments are not set aside; (iv) Applicant to pay the respondents' costs, including one junior counsel and one attorney on Scale A.

Under section 172(1) of the Constitution, a declaration of invalidity under subsection (a) is mandatory once inconsistency with the Constitution is found, but the remedy of setting aside under subsection (b) is a separate, discretionary remedy that must be just and equitable. A court may decline to set aside an invalid administrative decision where the irregularity is a bona fide formal mistake, there is no malfeasance, and setting aside would cause disproportionate prejudice to innocent parties, with the declaration of invalidity itself serving as sufficient vindication of the principle of legality.

The court noted that state counsel's submission that the respondents could simply reapply for their positions was 'highly problematic', observing that there would be no guarantee of positions being advertised due to government hiring freezes, recruitment delays, or that the respondents would secure employment in their current province or sector.

The case clarifies the distinction between the mandatory declaration of invalidity under section 172(1)(a) and the discretionary remedy of setting aside under section 172(1)(b) of the Constitution. It confirms that the Gijima principle does not compel automatic setting aside of unconstitutional administrative action. It also illustrates the application of just and equitable considerations in state self-review applications based on legality, particularly where employees are innocent of any wrongdoing and would suffer severe prejudice.