The Constitutional Court Was Asked To Remove The Police's Gap Occupying Civil Positions In The ASN Law

Illustration - Atmosphere of the hearing on the reading of the judicial review decision of the National Police Law at the Constitutional Court building, Jakarta, Thursday (13/11/2025)/ANTARA PHOTO/Hafidz Mubarak A/bar

JAKARTA - The Constitutional Court is asked to remove the provisions that are considered to be a gap for active police to occupy civilian positions, namely in Article 19 paragraph (2), paragraph (3), and paragraph (4) of Law Number 20 of 2023 concerning State Civil Apparatus.

Regarding the removal, Zico advocate Leonardo Simanjuntak asked for the judicial review case number 223/PUU-XXIII/2025.

The inaugural trial with the agenda for the preliminary examination of the case was held by the Constitutional Court in Jakarta, Tuesday, November 25.

"Declaring the phrase 'member of the Indonesian National Police' in Article 19 paragraph (2), paragraph (3), and paragraph (4) of the ASN Law contradicts the 1945 Constitution of the Republic of Indonesia and does not have binding legal force," said the applicant's attorney, Ratu Eka Shaira, in the trial reported by ANTARA.

As for Article 19 paragraph (2) of the State Civil Apparatus Law (ASN), it states that certain ASN positions can be filled from Indonesian National Army (TNI) soldiers and members of the National Police.

Article 19 paragraph (3) regulates the filling of certain ASN positions originating from TNI soldiers and members of the National Police to be carried out in central agencies, as stipulated in the law regarding the TNI and Polri.

Meanwhile, Article 19 paragraph (4) mandates further provisions regarding certain ASN positions originating from TNI soldiers and members of the National Police and their filling procedures are regulated in government regulations.

According to Zico, the articles tested were not in line with the spirit of the recent Constitutional Court's decision, namely Decision Number 114/PUU-XXIII/2025 which emphasized that members of the National Police who occupy positions outside the police must resign or retire.

It is known, the Constitutional Court in the decision deleted the phrase "or not based on an assignment from the National Police Chief" in the Explanation of Article 28 paragraph (3) of Law Number 2 of 2002 concerning the Police.

Ratu Eka said the main spirit of the Constitutional Court's decision actually led to the prohibition of active members of the National Police from holding civilian positions.

However, its implementation is considered hampered by the existence of other norms that still allow, as in the ASN Law.

He said that the norms that actually provided an explicit legal basis for active police were still possible to occupy civilian positions, regardless of the Constitutional Court's decision, namely Article 19 paragraph (2) which stated that certain ASN positions could be filled by members of the National Police.

"As long as this norm remains in effect, concurrent positions are still allowed regardless of the cancellation of the small phrase in the police law," said Ratu Eka.

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In this case, Zico also tested the Explanation of Article 28 paragraph (3) of the Police Law, namely the article that was previously granted by the Court's request for testing through Decision 114/PUU-XXIII/2025.

After the Court's decision, the editorial of the explanation in question changed to "What is meant by 'off-police positions' is a position that has nothing to do with the police."

According to Zico, after the Constitutional Court's decision, it reads Article 28 paragraph (3) of the Police Law and its explanation looks harmonious on the surface. However, he considered, there was a semantic contradiction in it.

"There is a semantic contradiction between the phrase position outside the police based on structure and position that has nothing to do with a function-based police force. Both produce different interpretation spaces and cannot apply consistently in the legal system of Ratu Eka's words.

He argued that this non-synchronous norm has the potential to have serious constitutional implications.

Therefore, in his petitum, Zico asked the Court to remove the Explanation of Article 28 paragraph (3) of the Police Law as a whole.