MK: Civil Service Filled by Police Needs to Be Clearly Regulated in Law

JAKARTA - The Constitutional Court (MK) emphasized that civil positions that have nothing to do with the police so that they can be filled by members of the National Police need to be clearly regulated in the Law.

Constitutional Justice Ridwan Mansyur when reading the legal considerations of Decision Number 223/PUU-XXIII/2025 said that written arrangements were needed to provide legal certainty for certain ASN positions that could be filled by members of the National Police.

"To provide legal certainty for certain ASN positions at central agencies held by members of the police, a clear and unambiguous written arrangement is needed and is set out in the law," said Ridwan as quoted by ANTARA, Monday, January 19.

Meanwhile, the Constitutional Court rejected the application filed by lawyer Zico Leonard D. Simanjuntak in this case, which, among others, tested Article 19 paragraph (2), paragraph (3), and paragraph (4) of Law Number 20 of 2023 concerning the State Civil Apparatus.

Article 19 paragraph (2) of the ASN Law regulates that certain ASN positions can be filled from TNI soldiers and members of the National Police; Article 19 paragraph (3) states that certain ASN positions are carried out at central agencies; while Article 19 paragraph (4) regulates further provisions regarding positions originating from the TNI and the National Police and the procedures for filling them are regulated by government regulations.

Zico in his petition asked that the phrase "members of the National Police" in the three articles be tested to be deleted. According to him, the existence of the tested articles causes the problem of active police occupying civil positions is still not resolved, even after the Supreme Court Decision 114/PUU-XXIII/2025.

However, the Court broke the petitioner's argument. The Constitutional Court also referred back to the Constitutional Court Decision 114/PUU-XXIII/2025 regarding the material test of Article 28 paragraph (3) of Law Number 2 of 2002 concerning the National Police.

Judge Ridwan explained that in the legal consideration of the verdict, it was emphasized that the position that requires the police to resign or retire from the police service is a position that has no connection with the police.

"Thus, as long as a position has a connection with the police, active police officers can fill the position without having to resign or retire," he said.

However, the Constitutional Court said the Police Law did not provide any explanation or regulation regarding which agency had a connection with the police so that the filling of certain ASN positions by active police officers did not have a legal basis.

Moreover, he added, there is no article in the Police Law that requires further regulation in the implementing regulations regarding the determination of which agency or what position outside the police still has a connection with the police.

"Based on the description, according to the Court, the provisions of Article 19 of Law 20/2023 (ASN Law) have provided room for the filling of certain ASN positions at central agencies for TNI soldiers and police officers who are substantively implementing them subject to the regulations of each law, in casu (in this case) Law 34/2004 (TNI Law) and Law 2/2002 (Police Law)," said Ridwan.

Therefore, the Constitutional Court considers that using Article 19 of the ASN Law as the legal basis for placing active members of the National Police in certain ASN positions is an action without proper legal basis.

Because, Article 19 paragraph (3) of the ASN Law does not provide special arrangements for certain ASN positions and which central agencies can be filled by TNI soldiers and police officers.

The ASN Law, said Ridwan, actually returns the regulation to the law related to the TNI and the Police.

Therefore, the Constitutional Court considers that it is necessary to have a clear and non-multi-interpretation written regulation in the law, namely the Polri Law, to provide legal certainty for certain ASN positions at central agencies held by members of the police.

"In this context, government regulations are only formed as implementing regulations after there are regulations in the law," he emphasized.

Thus, the Constitutional Court stated that the existence of the phrase "members of the National Police" in Article 19 paragraphs (2), (3), and (4) of the ASN Law is still relevant to be maintained, considering that the phrase in question is the basis for being implemented and correlated with the norm of Article 28 paragraph (3) of the National Police Law and its explanation as interpreted by the Constitutional Court through Decision 114.