ПРАВОВЫЕ ПОСЛЕДСТВИЯ ИНСТИТУЦИОНАЛЬНОГО ПОЛОЖЕНИЯ НАЦИОНАЛЬНОЙ ПОЛИЦИИ ИНДОНЕЗИИ В ПОДЧИНЕНИИ ПРЕЗИДЕНТУ

The modern state is fundamentally envisioned as a sovereign entity, legitimized by the collective will and consensus of its citizenry. Sovereignty, rather than being a mere abstract concept, serves as a formal juridical construct anchored in the principle of “consent of the governed.” This necessitates a cohesive political order, operationalized through institutional apparatuses empowered to govern and regulate state affairs. However, to mitigate the risks inherent in arbitrary exercise of power, such authority must be strictly delineated within a robust legal framework, ensuring that institutional actions remain consistent with constitutional mandates

Integral to the functioning of the state is the existence of state apparatuses tasked with maintaining public order and national security, both internally and externally. In Indonesia, the Indonesian National Police (hereinafter ‘POLRI’) is constitutionally mandated to perform this function within the domestic sphere. Article 30 paragraph

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These four functions – protection, guidance, service, and enforcement — are not merely operational mandates but constitute the ontological essence of POLRI’s institutional identity. Epistemologically, they form an interdependent matrix; the failure of any one function undermines the axiological objective of securing public safety and order. Thus, the constitutional articulation of POLRI’s duties reflects a normative commitment to a holistic conception of policing, grounded in both legal authority and social legitimacy

The institutional positioning of POLRI under the direct authority of the President is affirmed in Article 7 paragraph

Against this backdrop, the present inquiry is structured around two principal research questions: (i) How has the constitutional position of POLRI evolved within the Indonesian legal system? and (ii) What are the legal implications of POLRI’s placement under direct presidential control?

This study adopts a normative legal research methodology, premised on the central juridical issue of normative conflict

3.1. The Evolution of POLRI’s Constitutional Position in Indonesia

As a sovereign entity, the state necessitates a clearly delineated institutional architecture to ensure political stability and continuity. Such architecture is inherently hierarchical yet functionally interdependent, comprising distinct organs whose respective mandates are constitutionally defined and mutually reinforcing. This conception resonates with Montesquieu’s classical theory of the separation of powers, which posits the division of state authority into executive, legislative, and judicial branches

Building upon this theoretical foundation, the organisation of state institutions must reflect a structured relationship grounded in formal authority and normative practices. In the Indonesian context, this structure is codified in the Indonesia Constitution 1945, which serves as the supreme legal instrument delineating the purpose and function of each institutional component. The regulatory framework governing these institutions is predicated upon the principle of the rule of law, as enshrined in Article 1 paragraph

Given that the state is founded upon law, every institutional entity within its framework must not only participate in the creation of legal norms but also consistently uphold and enforce them. The legislative branch, embodied by the House of Representatives (in Indonesia known as Dewan Perwakilan Rakyat — DPR), is vested with the authority to enact legislation, exercise budgetary control, and perform oversight functions. The executive branch, represented by the Presidency, is tasked with implementing laws and administering governmental affairs as mandated by statute. The judiciary, comprising the Supreme Court and the Constitutional Court, is entrusted with adjudicatory powers and operates as an independent organ, free from external interference, as explicitly affirmed in Article 24 of the Indonesia Constitution 1945.

Within this constitutional configuration, the state requires auxiliary institutions to safeguard the operational integrity of its primary branches. These include the military (in Indonesia known as Tentara Nasional Indonesia — TNI) and the National Police (in Indonesia known as Kepolisian Republik Indonesia — POLRI), which function as instruments of state tasked with maintaining public order and national security. However, public perception often conflates the role of the judiciary with that of the police, leading to a persistent misconception that POLRI operates under the judicial branch. This misunderstanding is constitutionally unfounded. Article 24 of the Indonesia Constitution 1945 unequivocally stipulates that judicial power is independent and must remain uninfluenced by any other branch of government. Consequently, no institution — including POLRI — may be situated under or subordinate to the judiciary

This clarification is essential to understanding the constitutional positioning of POLRI. It underscores the necessity of distinguishing between institutions that exercise adjudicatory authority and those that perform executive or administrative functions in support of legal enforcement. POLRI, while integral to the enforcement of law, does not possess judicial power and must therefore be situated within the executive domain, subject to constitutional and statutory regulation

Terminologically, the term “police” is defined as a governmental body tasked with maintaining public security and order. Comparing this to the term “police” contained in the Encyclopaedia of Social Sciences, which is:

“The term police in its early definitions has covered a wide range of functions. It has been employed to described various aspects of the control of public sanitation; it has had a highly special meaning with respect to the suppression of political offences; and at times it has been expanded to cover pratically all form of public regulation and domestic order. Now, however, it is used primarily with reference to the maintenance of public order and the protection of person and property from the commission of unlawful acts.”

The conceptualisation of the police as a “protector” and as a representative of the people entrusted with the safeguarding of human dignity, as articulated by Wahid

Given POLRI’s designation as a state apparatus, its institutional placement under the direct authority of the President is constitutionally affirmed in Article 8 paragraph

The current structural configuration of POLRI finds its antecedents in Presidential Decrees No. 46 and No. 60 of 1983, further elaborated in the Commander of ABRI’s Decree No. Kep/11/1992 dated 5 October 1992. These instruments established a bifurcated organisational model comprising the National Headquarters (MABES) and Regional Commands (POLDA). The historical genesis of POLRI is rooted in the struggle for national independence, yet its institutional character has evolved uniquely, particularly during its tenure within the ABRI framework

The reformasi era marked a pivotal transformation in POLRI’s institutional status. The separation of POLRI from ABRI was formalised through Presidential Instruction No. 2 of 1999 concerning Policy Measures for the Separation of POLRI and ABRI. This directive mandated the Minister of Defence and Security / Commander of ABRI to initiate legislative reforms pertaining to national defence and security. The culmination of this process occurred in 2000, when POLRI was definitively detached from ABRI and ceased to operate under the Ministry of Defence and Security. This institutional realignment was consolidated through the enactment of Law Act Number 2 of 2002, which reaffirmed POLRI’s direct subordination to the President.

It must be acknowledged, however, that Law Act Number 2 of 2002 bears substantive resemblance to its predecessor, Law Act Number 28 of 1997 concerning the Indonesian National Police. Despite the formal separation, the continuity in legislative substance suggests a degree of inertia in institutional reform, raising questions about the extent to which POLRI’s operational paradigm has been recalibrated to reflect its new constitutional positioning.

Philosophically, the institutional placement of the Indonesian National Police (POLRI) under the direct authority of the President reflects its character as a state apparatus that operates in a coordinative line with the executive branch

From a theoretical standpoint, particularly within the framework of the modern constitutional state — or welfare state — as articulated by Bagir Manan

In line with this, Setiyono

At its core, the theory of the welfare state affirms the proactive involvement of the state in various domains — healthcare, labour, education, and policing – ensuring that every individual receives the benefits of state protection. This institutional logic underpins the enduring relevance of POLRI’s placement under the President, as it forms part of a broader cycle of state responsibility that fosters social order.

Although the Indonesia Constitution 1945 does not explicitly state that POLRI is under the President — unlike the express provisions concerning the army, navy, and air force — Article 30

(1) The Indonesian National Police is a state apparatus that plays a role in maintaining public security and order, enforcing the law, and providing protection and services to the community.

(2) In carrying out its role, the Indonesian National Police must possess professional expertise and competence.

This legal construction affirms that no other institution possesses a law enforcement function with a hierarchical line of accountability directly to the President. It underscores that POLRI is the sole institution entrusted with the responsibility of ensuring public order, empowered by statutory authority to regulate societal conduct in accordance with the law. In this context, POLRI plays a pivotal role in the success of governmental administration. It is therefore normatively coherent — and institutionally relevant — that the President may exercise a degree of intervention in the execution of POLRI’s duties and functions.

3.2. Legal Implications of POLRI’s Institutional Subordination to the President

The institutional alignment of the Indonesian National Police (POLRI) under the direct purview of the President serves as a definitive manifestation of executive power. Nevertheless, a conceptual tension arises when considering its functional paradigm; as a state apparatus, POLRI is mandate-bound to the maintenance of public order and the impartial enforcement of law. This dual identity necessitates a clear demarcation between political executive interests and the professional, objective requirements of internal security governance

Nevertheless, it must be acknowledged that the 1945 Constitution does not explicitly state that POLRI is under the President’s command. This stands in contrast to Article 10 of the 1945 Constitution, which affirms that the President holds supreme authority over the Army, Navy, and Air Force — components of the Indonesian National Armed Forces (in Indonesia known as TNI). Based on Article 30 paragraph

Interestingly, subordinate legislation provides a more definitive articulation of POLRI’s institutional status. Article 8 paragraph

Moreover, POLRI’s direct subordination to the President carries implications for its leadership structure. The Chief of National Police (in Indonesia known as Kepala Kepolisian Republik Indonesia — Kapolri) occupies a position equivalent to that of a cabinet minister. As noted by Maria Farida

In this context, POLRI must develop and implement strategies capable of ensuring societal stability and regulating civil conduct. Its accountability to the President in achieving these objectives entails a hierarchical model of responsibility. This is particularly salient given POLRI’s institutional reach, which extends from the national headquarters to regional and sub-regional levels, including district-level commands. Accordingly, the execution of duties by POLRI personnel must be consistent, measurable, and structurally coherent, thereby enabling the effective delivery of public security and contributing to developmental success from the grassroots to the national level.

A salient feature of POLRI’s institutional mandate is its function in law enforcement, particularly within the domain of criminal justice. Article 2 of Law Act Number 2 of 2002 affirms that “The police function is one of the functions of state governance in the field of maintaining public security and order, law enforcement, protection, guidance, and service to the community.” This statutory formulation suggests that POLRI’s law enforcement role should ideally be exercised with a degree of institutional autonomy, especially in the handling of legal cases. However, neither the Indonesia Constitution 1945, nor the relevant MPR Decrees, nor Law Act Number 2 of 2002 explicitly affirm POLRI’s independence in the execution of its law enforcement duties. This omission is particularly significant given that the enforcement of law — especially in criminal matters – encroaches upon the judicial domain.

The absence of an explicit guarantee of institutional independence raises concerns regarding the potential for executive interference, particularly by the President. While Article 8 paragraph

Within the conceptual framework of the modern constitutional state, presidential intervention in POLRI’s law enforcement activities may be construed as a legitimate exercise of executive authority aimed at ensuring public welfare through the realisation of justice. Such intervention is defensible insofar as it addresses concerns of procedural irregularity or potential injustice in the conduct of law enforcement. This oversight function is also consistent with the broader objective of clean governance, wherein the President, as the apex of executive power, is entitled to demand accountability from POLRI for its legal actions. Moreover, this arrangement may serve to enhance public access to justice, with the President acting as a conduit for citizen grievances and institutional redress

At this juncture, POLRI’s institutional identity is reaffirmed as a state apparatus created by the executive branch — not to shield the President, but to assist the citizenry in securing justice and maintaining public order. This role is instrumental in cultivating public trust in governmental institutions. In this regard, POLRI’s operational ethos must reflect its foundational philosophy: to protect, guide, and serve the community with integrity and impartiality.

This normative orientation finds further expression in the concept of restorative justice. In appropriate cases, POLRI should facilitate community-based dispute resolution mechanisms that obviate the need for formal judicial proceedings. Such practices are aligned with POLRI’s constitutional duties and reinforce its role as a guardian of social harmony. Crucially, these functions must be performed with transparency and sincerity, devoid of corrupt practices or institutional malfeasance.

POLRI’s presence within society thus embodies the state’s commitment to legal protection and public service. It is a tangible manifestation of the modern constitutional state’s responsibility to uphold justice, ensure security, and foster social cohesion. The institutional design and operational conduct of POLRI must therefore reflect the values of accountability, professionalism, and public trust — principles that are indispensable to the legitimacy of law enforcement in a democratic society.

A comparative lens offers valuable insight into the institutional design and normative orientation of policing in a modern constitutional state. The Japanese model, governed by the Japanese Police Law of 1954, exemplifies a decentralised yet community-integrated policing structure. Operationally, the Japanese police system is characterised by two primary modalities: kōban in urban areas and chūzaisho in rural regions. These units provide 24-hour public service, ranging from assisting with lost property and offering directions to mediating minor disputes. This model reflects the tangible presence of the state within society and embodies the principles of a responsive and service-oriented legal order.

In contrast, the Indonesian National Police (POLRI), under the normative framework of Law No. 2 of 2002, is structurally subordinated to the President. This institutional arrangement entails several legal implications

1. The President exercises full authority over the organisational structure and administrative operations of POLRI, including recruitment, institutional design, and territorial deployment.

2. The President receives formal accountability reports — both oral and written — from the Chief of National Police (Kapolri), and retains the prerogative to seek clarification or verification of such reports.

3. The President holds the authority to appoint and dismiss the Chief of National Police, subject to the approval of the House of Representatives, thereby necessitating a mechanism of checks and balances.

4. In exigent circumstances, the President may suspend the Chief of National Police and appoint an acting official, pending subsequent approval by the House of Representatives. Such exigencies include incapacitation or dereliction of duty.

5. The President determines the procedural framework for the nomination and appointment of the Chief of National Police.

6. The President establishes the National Police Commission (in Indonesia know as Kompolnas), which serves as an advisory body on policing matters.

Terminologically, the phrase “under the President” in Article 8 paragraph

This hierarchical configuration underscores the extent of presidential power over POLRI. Ideally, such concentrated authority can serve as a corrective mechanism in instances where internal dysfunction within POLRI threatens public interest or state integrity. However, if unchecked, this same concentration of power may engender arbitrariness and institutional overreach. As Lord Acton famously observed, “Power tends to corrupt, and absolute power corrupts absolutely.” The challenge, then, lies in calibrating executive authority to ensure both effective governance and institutional restraint.

The juxtaposition with the Japanese model reveals a critical distinction: while Japan emphasises decentralised, community-based policing with strong local accountability, Indonesia’s model centralises control within the executive. Each model reflects differing constitutional traditions and governance priorities. Nonetheless, the Indonesian experience must remain vigilant to the risks of over-centralisation, and should consider adopting elements of community integration and operational autonomy to enhance public trust and institutional legitimacy.

The Indonesian National Police (POLRI) has historically transitioned from an integrated component of the unified military command under the Armed Forces (ABRI) to an autonomous civilian entity. This structural metamorphosis, precipitated by the post-1998 constitutional reforms, was legally formalized through MPR Decrees No. VI and VII of 2000 and subsequently entrenched by Law No. 2 of 2002. These legislative instruments effectively reconfigured POLRI’s legal standing, placing it as a specialized state apparatus directly accountable to the President. Consequently, this alignment solidifies POLRI’s position within the executive hierarchy, distinct from the defense-oriented military framework.

The direct subordination of POLRI to the President generates profound legal and institutional ramifications. Primarily, its integration into the executive branch expands its mandate from conventional law enforcement to a broader spectrum of administrative governance. This hierarchical framework reinforces a strict vertical accountability, where the Chief of Police (Kapolri) answers directly to the Head of State. However, this structure also grants the President substantial prerogative to intervene in police operations — a power that, despite its legal basis, requires stringent oversight to protect institutional impartiality. Furthermore, the executive’s formal control over POLRI’s leadership and organizational architecture creates a concentration of authority that, in the absence of robust checks and balances, poses a significant risk of administrative overreach and political instrumentalization.

These implications underscore the delicate balance between executive control and institutional independence. While presidential oversight may enhance accountability and policy coherence, it also necessitates robust safeguards to prevent arbitrary interference and preserve the integrity of law enforcement. The challenge for Indonesia’s constitutional order is to ensure that POLRI remains a professional, impartial, and publicly accountable institution — one that serves the citizenry, upholds the rule of law, and contributes to the realisation of justice and social order in a modern constitutional state.