Safri Nurmantu, a Professor of the Faculty of Social and Political Studies, Universitas Indonesia (Fakultas Ilmu Sosial dan Politik Universitas Indonesia –FISIP UI), was presented as an expert by the Applicant who filed judicial review on Act of Foundation (Undang-Undang Yayasan –UU Yayasan) on Monday (16/03) at the Plenary Room, MK Building. Photo PR / Ganie.

Second hearing of Act No. 28 Year 2004 of Foundation (Undang-Undang Yayasan –UU Yayasan) judicial review that registered on Case No.5/PUU-XIII/2015 was held by the Constitutional Court (Mahkamah Konstitusi –MK) on Monday afternoon March 16. The session was scheduled on testimony hearing from The Applicant’s Experts and Witnesses. As known, The Applicant filed a petition on Article 5 Act of Foundation because he felt his constitutional rights had been aggrieved.

The expert presented at the session is Safri Nurmantu, a Professor of the Faculty of Social and Political Studies, Universitas Indonesia (Fakultas Ilmu Sosial dan Politik Universitas Indonesia –FISIP UI). Safri said that Article 5 Act of Foundation was contradicted with Article 28D (1) The 1945 Constitution (Undang-Undang Dasar 1945).

“It is because the Article on UU Yayasan prohibit me to receive direct or indirect compensation in form of wages, salary, or honorarium, or any other forms that can be rated with money from the Foundation, with a maximum penalty five-years imprisonment and criminal sanction,” Safri who is now a lecturer of STIAMI college, Jakarta.  

Safri continued, the history of Indonesian education is inseparable from the role of foundation since pre-Independence era. Many national heroes are the alumni of foundation school. Even today, most of the education conducted in Indonesia is carried out by foundations, aside from state schools and state universities.

“The number of foundations in entire Indonesia that concerned on social problems, such as education is estimated more than 7.000 foundations. If each foundation has at least 5 people as mentors (pembina), organizers, and trustees (pengawas), so there are estimated 35.000 peoples who will be dealing with the provisions on Article 5 UU Yayasan,” Safri explained.

Article 5 (1) Act of Foundation noted, “The foundation holdings in the form of money, goods, or other property acquired by foundations based on this Act, is prohibited to be transferred or distributed directly or indirectly, either in the form of salaries, wages, and honorarium, or other forms that can be rated with money to Mentors, Organizers and Trustees. "

(Pasal 5  ayat (1) UU Yayasan: ”Kekayaan yayasan baik berupa uang, barang, maupun kekayaan lain yang diperoleh yayasan berdasarkan undang-undang ini, dilarang dialihkan atau dibagikan secara langsung atau tidak langsung, baik dalam bentuk gaji, upah, maupun honorarium, atau bentuk lain yang dapat dinilai dengan uang kepada Pembina, Pengurus dan Pengawas.”)

While Article 5 (2) Act of Foundation said, "Exceptions to the provisions referred in paragraph (1), can be determined in Foundation Budget that the Organizers receive salaries, wages, or honorariums, in terms of the Foundation organizers: a. are not the founder of the Foundation and are not affiliated with the Founders, Mentors, and Trustees; and b. are conducted the Foundation organization directly and entirely."

(Pasal 5 ayat (2) UU Yayasan: “Pengecualian atas ketentuan sebagaimana dimaksud pada ayat (1), dapat ditentukan dalam Anggaran Dasar Yayasan bahwa Pengurus menerima gaji, upah, atau honorarium, dalam hal Pengurus Yayasan: a. bukan pendiri Yayasan dan tidak terafiliasi dengan Pendiri, Pembina, dan Pengawas; dan b.  melaksanakan kepengurusan Yayasan secara langsung dan penuh.”)

Meanwhile the Applicant Witness Amrulah who is a Mentor and Secretary at Toyib Salmah Habibie Foundation stated that he felt anxious with the provisions of Article 5 Act of Foundation. Previously he could earn some money for his family at home as the result of his work. But with the aforementioned Article, he is prohibited from receiving compensation in form of salaries, honorarium or other forms because of his position at the foundation.

“It means, the compensation once halal (lawful) but now it becomes haram (illegitimate) if I receive the compensation,” said Amrullah. “If that so, what could I give to my family?” added him.

At the initial hearing, the Applicant Dahlan Pido as the Toyib Salmah Habibie Foundation mentor argued that Article 5 Act of Foundation is eliminate his rights to earn salary, wage, or honorarium as well as other foundation organizers.

The Applicant argued that there are many foundation activities in Indonesia whose activities are conducted jointly with the foundation organs other than the organizers, i.e. mentors and trustees. (Nano Tresna Arfana/Prasetyo Adi N)