387. In countries with a civil law tradition, the important function attributed
to written law as the main source of law, combined with the principle of
judicial independence which requires that a judge is generally subject only
to the mandate of written law and not to rulings made by another judge,
together mean that in most of these countries judicial precedent is not
binding on future cases. This is the case, for example, in France. However,
in some systems this is changing, and an increasing number of systems
(judicial systems in general and EDR systems in particular) in this tradition
provide that precedents established by certain judicial bodies are binding
on lower courts.
388. Thus, for example, the Superior Chamber (Sala Superior) of the Electoral
Court of the Judicial Branch of the Federation of Mexico is authorized to
establish binding case law when it upholds the same standard for interpreting or
filling gaps in the law in three judgements. Unlike other systems (both common
law and civil law) in which precedent or case law is binding only on judicial
bodies, in Mexico the case law established by the Superior Chamber of the
Electoral Court binds all other electoral courts (both the lower-ranking ones of
the federal judiciary and the state electoral courts) and also the EMBs (both the
federal EMB and those that correspond to each state of the federation). The law
also provides that the Superior Chamber may undo the binding nature of the
case law by a majority of five of its seven members, specifying the reasons that
justify the change in its interpretative criteria.
389. In general, the top-level organ of any EDR system should endeavour
to establish clear and uniform criteria for interpreting the applicable
constitutional and statutory provisions and for filling any possible legal
gaps if it has the authority to do so. In addition, it should establish and
disseminate the set of judicial precedents that may be binding on the lower
EDRBs. It would also be desirable for the electoral legislation to establish
that such precedent is binding on the EMBs, as differences in the application
of criteria between different electoral authorities could pose a threat to legal
certainty and imperil trust in the electoral process and its institutions. This
is part of the so-called normative autonomy that characterizes the various
EDR systems. It is advisable that each EDR system is regulated by clear and
precise provisions.
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