Pilkada winner Disqualified

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Titi Anggraini Election and Democracy Forum (Perkumpulan Pemilu dan Demokrasi – “Perludem”) Counselor and Doctoral Student in the University of Indonesia’s Faculty of Law

IO – An uproar erupted over the regional elections (Pilkada) when the Elections Supervisory Agency (Bawaslu) of Lampung Province disqualified candidate pair Eva Dwiana and Deddy Amarullah, who were contesting the Banda Lampung regional election. According to the agency’s decision, dated January 5, 2021, Eva and Deddy were, beyond any reasonable doubt, found to have committed a structured, systematic and massive violation in the form of promising and/or giving money or other things to influence election organizers and/or voters. This was in breach of Article 73 Paragraph 2 of Law No. 10/2016 on the Election of Governors, Regents and Mayors. 

The Bawaslu of Lampung Province ordered the General Elections Commission (KPU) of Bandar Lampung to cancel the decision affirming the Eva and Deddy candidacy. A cancellation decision was issued not long afterward. This despite Eva and Deddy received the most votes (57.30%), way ahead of candidate pair number one Rycko Menoza SZP and Johan Sulaiman who only managed to garner 21.21% of votes and candidate pair number two Muhammad Yusuf Kohar and Tulus Purnomo Wibowo with 21.45%. In addition, when the decision was made, the dispute was filed with the Constitutional Court (MK). Article 135a of Law No. 10/2016 stipulates that candidates who are subject to administrative sanctions of candidacy cancellation can petition the Supreme Court (MA) no later than three working days from the stipulation of the decision by provincial-level or regency/municipality- level KPU. The Supreme Court will rule on the case no later than 14 working days from the time it receives the case files. 

Apart from Article 73 Paragraph 2, there is also Article 71 Paragraph 3 of Law No. 10/2016, which can disqualify a candidate. This article stipulates a prohibition against regional heads or deputy regional heads wielding their authority, programs, or activities that benefit or harm one of the candidate pairs either in their area or in other regions six months before the date of the determination of the candidate pair. In the case an incumbent candidate violates this provision, his/ her candidacy will be canceled by the KPU based on the recommendation from Bawaslu.

Recommendation and ruling 

It is worth noting that there is a difference in strength between Article 71 Paragraph 3 and Article 73 Paragraph 2. Sanction for violation of Article 71 Paragraph 3 is in the form of recommendations that are non-binding so it’s up to the KPU whether to execute them or not. KPU is given the authority to “reexamine” the case to base their decision whether to disqualify the violator. Meanwhile, the sanction of disqualification for violation of Article 73 Paragraph 2 is in the form of a binding decision that KPU must execute. 

Prior to the KPU vote tally announcement, Bawaslu had issued seven recommendations in favor of disqualification for Kaur, Ogan Ilir, Banggai, Gorontalo regency, North Halmahera, Mount Bintang and Kutai Kartanegara. Two recommendations were executed by the KPU with the cancellation for Banggai and Ogan Ilir. However, the cancelation was later rescinded by the Administrative High Court (PTTUN) and the Supreme Court. After KPU vote tally announcement on December 16, 2020), Bawaslu recommended the disqualification of incumbent candidate pairs in South Nias and Tasikmalaya. This was as controversial as prior disqualification decision in Barlam City because it ran counter to the principle of legal certainty and fair orderly electoral justice. 

The elections law states six legal issues in regional elections, namely, violations of the code of ethics by election administrators, administrative violations, criminal acts, election disputes, state administrative disputes, and disputes over results. The institution that has the authority to handle it has also been strictly regulated. Article 156 and Article 157 of Law No. 10/2016 stipulates that disputes over vote tally between the provincial-level KPU and/or KPU and candidates regarding vote results will be ruled on by the Constitutional Court (MK). 

Thus, the design of electoral justice only provides room for MK to handle disputes that can affect the results. The concept was emphasized by MK in its Decision No. 146-02-10/PHPU.DPR-DPRD/ XVII/2019 that after the KPU vote tally announcement, it is no longer possible for a decision or recommendations from other state institutions which may affect the results, with the exception of MK ruling. Even though this is intended for a legislative elections dispute, the design and electoral justice institution is no different from Pilkada. Regardless of the substance, if Bawaslu is allowed to disqualify a candidate after vote results are announced, then there will be two streams of law enforcement that run simultaneously and can be conflicting. What if MK decides that the alleged violation is not proven? And for Barlam City, for example, where the vote tally difference between the two candidate pairs was very close, what legal stance can they take if they object to the vote results after having been disqualified by the KPU? 

Legal certainty will be in jeopardy. The parties are encouraged to keep looking for loopholes to have their objections met. As part of the process for elite circulation, the election must have a clear end in the form of the inauguration of the elected candidates. Thus, MK was designed to be the final recourse in resolving legal problems after the KPU vote tally announcement. This is crucial in ensuring that elections and the filling of public office can run orderly, according to a prescribed time frame. 

If this is what happens, instead of realizing substantive justice, the elections will be susceptible to uncertainty. Alas, not only will its results be unpredictable, its procedures will also be shrouded in mystery, because too many hands intervened outside their scope of authority. Hopefully MK can rectify this problem in the handling of ongoing disputes over election results.