384. Most electoral challenges originate directly or indirectly from an action,
decision or omission by the EMB. The role of the EMB is thus especially
important in carrying out the judgements or decisions, and electoral legislation
must establish a duty of the EMB to assist EDRBs and allow full access for
interested parties and candidates to the relevant EMB materials and files.
It is therefore desirable that collaborative relations exist between the EDRB
and the EMB, quite independent of the possibility of the EDRB imposing a
measure that requires the EMB to act or lodging a complaint so that some
type of liability can be attributed to the EMB.
g) Consistency in the interpretation and application of the electoral
laws
385. One sign of the independence and impartiality of an EDRB is its
consistency in the interpretation and application of the constitutional,
statutory, regulatory and, where applicable, international provisions pertaining
to elections, regardless of the political pressures and any other circumstances
or actors involved. When dynamic and changing circumstances or new
insights into the provisions applicable by the EDRB appear to demand a
change in interpretation, special care should be taken to justify such changes
fully and to ensure that they are truly exceptional. The predictability of the
actions of EDRBs is fundamental to legal certainty and the credibility of the
EDR system. Any change easily triggers suspicions of political bias.
386. In EDR systems that are entrusted to regular courts that are part of
the judicial branch and are part of the common law tradition (for example
Australia, Canada, India and the UK), under the doctrine of stare decisis an
interpretation of the law previously embraced by a court becomes binding
precedent for the same judicial body in future cases. Only by deciding that a
later case is different can a court stray from a certain standard of interpretation
previously upheld. It must conclude that the new case contains characteristics
that are substantially different to make the precedent inapplicable.
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6. Principles and guarantees of EDR systems
out the judgements or rulings that result from electoral challenges. In addition,
the sanctions of suspension or cancellation of the registration of political parties
or candidates are vulnerable to abuse. The EDRB must act firmly and prudently
to ensure the full enforcement of its judgements and rulings. However, it should
consider refraining from ordering certain actions to be carried out by a person
with respect to whom it does not have any mechanisms to ensure compliance.
It is often preferable to recognize the lack of legal mechanisms to bind and
order someone to engage in certain conduct rather than order it and then have
the order ignored. The credibility of an EDRB would be seriously impaired
if it were to hand down judgements or rulings that were ignored by those to
whom they were directed. However, such situations would be likely to provide
evidence of a need for reform of legislation.