derives from the fact that the decisions of the EDRB are specified to be not
subject to subsequent review or modification by any other body.
249. The fact that an EDRB belongs to the judicial branch, in which there are
higher-ranking bodies such as the Supreme Court, does not mean that it has
to answer to a higher-ranking court. Nor does the possibility of its decisions
being subject to review, overturned or amended mean that its functional
independence is lost or limited. The relevant consideration is that the EDRB
should be subject only to its mandate as set out in the constitution and the
law when ruling on the merits of the challenges filed.
250. In general, it may be considered good practice to entrust an EDR system
to permanent and independent bodies. When electoral laws provide EDRBs
with mandates that do not authorize them to continue to operate beyond the
electoral period, other bodies must be entrusted with resolving any possible
challenges that arise during the pre-electoral and post-electoral periods. While
arguments about the overall priorities for use of scarce human and financial
resources are important, they need to be set against the potential costs arising
from lower credibility in resolving electoral disputes which arise outside the
electoral period itself.
251. Several countries vest an important power to develop and adopt regulations
under a country’s electoral law in the supreme body of an EDRS which takes
the form of special electoral courts. Some electoral courts are authorized to
issue by-laws, as for example in Mexico. This power can also be given to an
EMB with the authority to resolve electoral disputes, which is the case in the
Dominican Republic, El Salvador, Gambia, Uruguay and Yemen.
252. In addition, some countries give EDRBs the power to initiate electoral
legislation, for example, Ecuador and Peru. Others establish an obligation to
consider the opinion of the EDRB in the legislative process relating to electoral
issues, as in Costa Rica where a two-thirds majority of the legislature is required
before it can go against the opinion of the Supreme Elections Tribunal.
253. Some EDR systems also empower the highest-level court in the EDR
system to establish binding judicial precedent through case law. The Superior
Chamber of the Electoral Court of the Judicial Branch of the Federation in
Mexico does so when it reiterates the same view in three consecutive cases,
or when it resolves the conflicting views of two regional chambers, or of one
regional chamber and the Superior Chamber, and determines the criteria that
should prevail. This case law is binding in future cases, not only on the lower
EDRBs but also on the EMB. This is common practice in judicial systems,
particularly in common law countries that have the stare decisis doctrine.
However, some countries with a civil law tradition, such as El Salvador, do
not allow binding case law.
92