244. Although constitutional provisions about the independence of
constitutional courts or councils which are not part of the judiciary are
unusual, such bodies have a constitutional rank and status equivalent to
that of the highest judicial body and their members enjoy similar structural
guarantees, as is discussed in paragraph 298.
245. As for EDRSs entrusted to administrative courts, Article 5 of the
Regulatory Statute on the Administration of Justice of Colombia expressly
establishes that ‘The Judicial Branch is independent and autonomous in the
performance of its constitutional and statutory function of administering
justice’. Similarly, Article 1 of the Constitution of Finland provides that
‘Judicial powers are exercised by independent courts of law, with the Supreme
Court and the Supreme Administrative Court as the highest instances’.
246. In an example of an EDR system entrusted to specialized electoral
courts, Article 99 of the Mexican Constitution provides that the EDRB – the
Electoral Court of the Judicial Branch of the Federation (Tribunal Electoral
del Poder Judicial de la Federación) – will, except for an action challenging
the constitutionality of general election laws and statutes which comes under
the jurisdiction of the Supreme Court, be the highest-level judicial authority
in relation to electoral matters. Also, Article 17 of the Constitution provides
that the statutes shall establish the means necessary for guaranteeing the
independence of the courts and the full enforcement of their rulings provided
for in the Organic Law on the Judicial Branch of the Federation.
247. An example of an EDRS entrusted to the EMB is found in Article 99 of
the Costa Rican Constitution, which states that ‘The organization, direction,
and supervision of acts pertaining to suffrage are the exclusive function
of the Supreme Electoral Tribunal, which does enjoy independence in the
performance of its duties’.
ii) Functional independence of the EDRB
248. An EDRB enjoys functional independence when it is separate from any
other body and acts without institutional subordination to any other body. It
cannot be under any legal obligation in the performance of its functions to any
other body, either superior to it or belonging to any other type of authority. It
is bound only by the provisions of the constitution, statute law and any other
applicable provisions. In several EDRSs, greater functional independence
91
6. Principles and guarantees of EDR systems
judicial powers shall be independent with the authority to conduct judicial
affairs in order to uphold law and justice … implemented by … a constitutional
court’ (Indonesia). Sometimes, however, there are special provisions: ‘The
Constitutional Court… is an independent judicial body charged with the
protection of constitutionality’ (Slovakia).