• regular courts of the judicial branch;
• constitutional courts or councils;
• autonomous administrative courts; and
• specialized electoral courts.
(See also box 5.2).
i) Regular courts of the judicial branch
170. The first type of strictly judicial EDR system is that which entrusts the
final decision on challenges to election results to regular judges or courts
which are not specialized in electoral matters but are part of the judicial
branch. Often this power is conferred on the Supreme Court of the country,
either by its assuming direct jurisdiction or through jurisdiction on appeal if
there is a decision by a lower judicial body.
171. This type of EDR system began in the UK in 1868 (reformed in 1983) for
the purpose of eradicating the abuses committed by majorities in the House
of Commons. By a legislative act, the resolution of challenges to elections was
entrusted to two regular judges of the Queen’s Bench Division of the High
Court of Justice (membership of which rotates among the members of the
judicial branch). It was also established that decisions on which these judges
agreed would be adopted by a resolution of the House of Commons, in order
to safeguard the sovereignty of Parliament. The judges report their decision
to the Speaker of the House, who submits it to the plenary House. If the
judges decide that a candidate other than the member who occupies the seat
concerned should have been elected, the House orders that steps be taken as
necessary to give effect to that decision. Although jurisdiction over electoral
challenges has been moved to the judicial branch, the House of Commons
retains its jurisdiction over its membership if this is raised for other reasons.
172. A slightly different system was adopted in other Commonwealth
countries, such as Australia, Pakistan and English-speaking Caribbean
countries such as Jamaica. Here, a final ruling is made by the High Court on
appeal against a ruling by the electoral court, which is constituted by a judge
chosen in rotation who hears the challenge in first instance. The same holds
in Canada and India through their respective supreme courts, which hear on
appeal challenges to the election of legislators. In addition, challenges to the
election of the President and Vice-president in India are heard directly by the
Supreme Court. Especially in Australia, Canada and India, independent and
autonomous EMBs have played a fundamental role in the EDRS.
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5. A general classification of EDR systems
169. Judicial EDRSs can be subdivided into four categories, depending on
the nature of the organ to which the ultimate or final resolution of a given
electoral challenge is entrusted: