The Petitioner’s attorney Arjumulia after the judicial review ruling hearing of Law Number 16 of 2001 on Foundation, Monday (30/9) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) rejected the entire judicial review petition of Law Number 16 of 2001 on Foundations filed by the Al-Ikhwan Meruya Foundation, represented by H. Armein Kusumah, Hj. Sri Wuryatmi, and H. Saman. The pronouncement of Decision No. 30/PUU-XVII/2019 on Monday (30/9/2019) was presided over by Chief Constitutional Justice Anwar Usman, with the eight other constitutional justices. “The verdict declares to reject the Petitioner’s petition for the whole,” he declares.

The Petitioner had previously challenged the phrase "interested third party" in the investigation of foundations. They felt aggrieved by the enactment of Article 53 paragraph (2) of the Foundation Law, which they considered multi-interpretive. The phrase ‘interested third party’ could be interpreted as the absence of interest, the absence of legal relation between the party that proposes investigation with the material (argument) of the petition, even if it is obvious that there was a conflict between the material (argument) of the petition filed with the material (argument) submitted, can be interpreted even though the interpretation clearly contradicted the provisions stipulated in other regulations, and could be interpreted by arguing the interests of other parties.

Therefore, in the petitum, the Petitioner requested that the Court declare the phrase "interested third party" in Article 53 paragraph (2) of the Foundation Law contrary to Article 28D paragraph (1) of the 1945 Constitution as long as it is not interpreted “congregation of the Al-Ikhwan Mosque who, according to their belief, take part in prospering the Al-Ikhwan Mosque." 

In the legal consideration read out by the Constitutional Justice Manahan M. P. Sitompul, the Court was of the opinion that based on Article 53 paragraph (3) of the Foundation Law, the investigation of a foundation in the event that a foundation commits an act that is detrimental to the state can be carried out based on the determination of the Court at the request of the Prosecutor\'s Office representing the public interest. However, based on Article 53 paragraph (2) of the Foundation Law, if there are allegations that the foundation\'s organ has committed an unlawful act or is in conflict with its articles of association, is negligent in carrying out its duties, and has committed acts that harm the foundation or a third party, the assessment can be carried out after a court ruling with a written request by the third party concerned and the reasons thereof. Therefore, based on the aforementioned provision, the investigation of the foundation must be based on the court decision both at the request of the Prosecutor\'s Office and the interested third party. 

According to the Court, the notion of "interested third party" in the Foundation Law is basically not clearly explained. However, the a quo phrase cannot be separated from the provision of Article 54 paragraph (1) of the Foundation Law that reads, "The Court can reject or approve the application for the investigation as meant in Article 53 paragraph (2)." Therefore, the determination to refuse or grant the investigation, including who the third party is, who has the right to submit an application for investigation of the foundation as referred to in Article 53 paragraph (1), is determined by the court. This means that anyone who feels disadvantaged by a third party due to the foundation’s act has the right to submit an application for an investigation. 

Justice Manahan added that the interested third party in the Foundation Law will become clear when the judge determines the parties who propose themselves as interested third parties based on the reasons in the application and according to the results of the examination at the hearing. This is to strengthen the confidence of the court or the judge in refusing or granting the third parties’ application to consider the principle audi et alteram partem. 

In addition, the phrase "interested third party" cannot be interpreted without a court decision. Therefore, without a court ruling, the position of a third party cannot be determined unilaterally outside a court hearing, thus there is no unconstitutionality issue in Article 53 paragraph (2) of the Foundation Law. Therefore, the Petitioner’s argument was declared legally groundless. (Utami/LA)

Translated by: Yuniar Widiastuti