211. On occasion, an ad hoc body is established in a country to be in charge
of the EDR system for one or more specific elections as a transitional, internal
solution. This is usually the result of agreement and negotiation among the
main political forces in order to get round a serious conflict, possibly as a
result of a constitution not having entered into force or the non-functionality
of the electoral institutions originally provided for. This type of EDR
system is usually established by a body of national law – with transitional,
constitutional or statutory provisions – or even a peace agreement between
belligerent forces. It is made up exclusively of nationals from the country
involved, with the purpose of holding free, fair and genuine elections in line
with the law.
212. This happened in Nepal, where the Constituent Assembly Court
(Sambidhan Shabha Adalat) was provided for in Nepal’s Interim Constitution
of 2006 to resolve challenges to the election of members of the Constituent
Assembly (Sambidhan Shabha) which took place as a result of the 2006
Comprehensive Peace Agreement. The Constituent Assembly was installed
in May 2008 and was given two years to approve a new constitution for
Nepal. To this end, the Constituent Assembly Court was made up of three
members selected from among the members of the Supreme Court of Nepal
(Sarbochcha Adalat), on the understanding that there would also be an
EMB (the Election Commission of Nepal, Nirbachan Aayog) entrusted with
organizing elections.
213. The key characteristic of this type of EDRS is its provisional or transitional
nature. The ad hoc body is tasked with resolving the challenges arising from a
specific election or series of elections held in a given period. This ad hoc body
may be legislative, judicial or administrative in nature, but it contrasts with
the EDRSs analysed in the sections above.
214. This type of EDRS is also different from cases in which a serious conflict
arises in the context of an election related to the process or the results, and
the resolution of the conflict or of the respective challenge involves the
creation after the event on an extraordinary and exceptional basis by the
political actors of an ad hoc body other than the one originally provided
for in the electoral legal framework. Examples of the latter occurred during
the elections in the United States in 1876 and Kenya in 2007. It is always
important to support the observance of the laws and institutions of an
EDR system by all involved as an essential characteristic of the rule of law;
however, occasionally severe differences arise among the political forces
with respect to the development or outcome of an election process and the
institutions in place are not robust enough to resolve them in a way that is
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5. A general classification of EDR systems
ii) An ad hoc body created as an internal national institutional
solution