The Constitutional Court (Mahkamah Konstitusi –MK) declares reject judicial review petition on Act Number 28 Year 2004 of Amendment on Act Number 16 Year 2001 of Foundation (Undang-Undang Yayasan). As known, Toyib Salmah Habibie Foundation Trustee Dahlan Pido files the petition. On the verdict announcement session held on Wednesday (26/8), Chief Justice Arief Hidayat read court verdict on the petition.

“Court verdict adjudicates, declares reject Applicant’s petition in its entirely,” said Arief read court verdict for Case Number 5/PUU-XIII/2015.

Regarding the petition, the Court has examined the petition carefully, heard verbal testimony, and read writing testimony from President and the House of Representatives (Dewan Perwakilan Rakyat –DPR), heard Expert’s and Witnesses’ testimony, and examined evidence letter filed by the Applicant. The Court argues foundation is a legal entity which established under formal requirements by law and has social objectives, religious objectives, and humanity objectives.

According to the Court, social activities conducted by foundation are occurred from people’s empathy who willing to help poor people. People assess foundation has more space for conducting social activities.

The Court argues foundation gets its capital from their founders’ wealth which separated from founders’ private wealth. Therefore, the wealth separation cause founders have no right to foundation wealth. Foundation could also get its capital from charity or unbinding aid. Thus, foundation is not obliged to return the aid.

The Court also argues many foundations deviate from its philosophical objectives due to misinterpretation or seeking profit. People are often complaining for expensive tuition fee which determined by education foundation. Even though no regulation prohibits business activity conducted by foundation, the objective of it is essentially for social oriented, not for profit oriented.

Based on consideration above, the Court argues foundation wealth provision stated in Article 5 (1) Act of Foundation is already appropriate because the provision is intended to separate foundation wealth with its founders’ wealth. By wealth separation, foundation founders are fully responsible for foundation sustainability in conducting its social oriented objectives. Thus, in order to achieve foundation objectives and prevent foundation abuse, foundation trustees, boards, and supervisors shall work voluntary; not receive permanent fee.   

Regarding the provision in Article 5 (2) Act of Foundation which excludes foundation boards who receive fee, in this case the boards are not the founders and not affiliated with founders, trustees, and supervisors, it depends on the objective of foundation, which is for social purpose. In the context of foundation management, the Court argues Act of Foundation has provided solution by appointing foundation boards who allowed receiving fee.

Regarding criminal provision on Article 70 (1) and (2) Act of Foundation, the Court argues the article intended to give criminal sanctions to foundation boards who conduct offense on the norms stipulated in Article 5 Act a quo. According to the Court, the article is a legal attempt in enforcing law and giving law order and legal certainty for foundation, in order to achieve its social, religious, and humanity objectives. Based on consideration above, the Court concludes Applicant’s petition has no legal ground.

As known, the Applicant argues his constitutional rights violated by Article 5 (1) and (2), and Article 70 (1) and (2) Act of Foundation. He assesses the norms aforementioned have removed his right to earn fee. According to him, he as trustee conducts regular activities together with foundation boards. He argues his rights shall be treated equally with boards’ rights, including the right to earn fee. (Nano Tresna Arfana/IR/Prasetyo Adi N)