Canceling Erna Lisa-Wartono's Victory, MK Orders PSU in Banjarbaru

JAKARTA, KOMPAS - The Constitutional Court annulled the victory of candidate pair number 1 Erna Lisa Halaby-Wartono in the 2014 Banjarbaru City Regional Head Election. The Constitutional Court ordered the Banjarbaru City KPU to hold a revote at all polling stations (TPS) in the region with one candidate pair as participants in the regional election.

Previously, the Banjarbaru City KPU, South Kalimantan, had canceled the participation of candidate pair number 2 Aditya Mufti Arifin-Said Abdullah because they were proven to have committed administrative violations. This made the Banjarbaru City Pilkada on November 27, 2024 only participated by one candidate pair, but the KPU did not implement the single candidate election model.

The disqualification by the Banjarbaru City KPU resulted in the votes for Aditya-Said being declared invalid. This caused the votes obtained by Lisa-Wartono to become 100 percent.

Seeing this problem, the South Kalimantan Nusantara Vision Study Institute, represented by its Coordinator, Muhammad Arifin, sued the results of the Banjarbaru City Pilkada to the Constitutional Court. He was accompanied by Denny Indrayana and his team as legal counsel.

In the verdict hearing at the Constitutional Court Building, Monday (24/2/2024), the Constitutional Court granted part of the petition filed by the South Kalimantan Vision Nusantara Study Institute. In her considerations, Constitutional Justice Enny Nurbaningsih said that the application of the mechanism for invalidating ballots marked in the column for candidate pair number 2 had implications that contradicted the election mechanism with one candidate pair.

In regional elections with a single candidate, there should be an empty column without a picture in addition to the column containing the picture, name, and serial number of the candidate pair. Votes that choose the empty column are counted as valid votes whose numbers are contested with the valid votes obtained by the single candidate pair.

In that context, the Banjarbaru City Pilkada should be implemented based on the mechanism of Article 54C Paragraph (1) letter e of Law Number 10 of 2016 concerning Pilkada. In essence, one of the conditions for implementing an election with one candidate pair is if there is a candidate who is subject to a cancellation sanction, so that only one Pilkada participant remains.

"This legal fact has convinced the Court that in the 2024 Banjarbaru City Pilkada there have actually been special conditions or events that have caused anomalies or irregularities in determining valid votes. Within the limits of reasonable reasoning, every election that is clearly only participated in by one candidate pair should be implemented with the same mechanism and should not be treated differently from each other," said Enny.

In the same condition, the election organizers should apply the same mechanism and procedures. Because, it is a form of equal treatment and an inevitability for the sake of realizing fair legal certainty in the implementation of the regional elections.

The Constitutional Court assessed that the Banjarbaru City KPU's decision to use ballots with images of two candidate pairs resulted in the votes of voters who did not vote for candidate pair number 1 being invalid. The Constitutional Court also assessed that the KPU had ignored the rights of voters to be able to cast their votes in the five-yearly event. The use of ballots containing images of candidate pairs whose participation had been canceled resulted in unclear and confusing voters.

"In this regard, there has been a special condition in the 2024 Banjarbaru city election where the respondent has neglected to implement discretion that prioritizes the constitutional rights and interests of voters. The choice not taken by the respondent, namely reprinting ballots and postponing the election implementation stages until the appropriate ballots are available, is a choice that still has a strong basis for discretion," said Enny.

The remaining one candidate pair actually meets the criteria of a special condition and incident that is the basis for postponing voting for the greater interest, namely protecting the rights of voters to cast their votes. The special incident can be categorized as part of "other disturbances" as regulated in Article 120 of Law 1/2015.

According to Enny, the Constitutional Court doubted the truth/purity of the vote acquisition produced in the November 27 regional elections. This is because the votes for candidate pair number 2 had been mixed, categorized as invalid votes and combined with other invalid votes. Thus, the total valid votes could not be converted into blank column votes. Therefore, the Constitutional Court ordered a revote.