79
Jurnal Ilmiah Penegakan Hukum
Available online http://ojs.uma.ac.id/index.php/gakkum
Shifting of Social Functions on Management of Foundation in Medan City
Sunarmi 1)*, Mirza Nasution 2), & Zakiah 3)
Faculty of Law, University of Sumatera Utara, Medan, Indonesia Diterima: Juli 2022; Disetujui: Juni 2023; Dipublish: Juni 2023
*Coresponding Email: [email protected] Abstract
In founding the foundation there is also no uniformity. Notaries usually do not have a standard format regarding the founding deed of the foundation. As a result, each foundation can have its own articles of association as well as the Civil Society Association. Each foundation can make the articles of association according to their needs. The study was conducted using a normative juridical approach with the aim of obtaining secondary data, namely the inventory of legislation and data collection tools in the form of document studies. The foundation was established and developed with the family's efforts so that when the foundation developed rapidly and had many assets, the assets were owned by the family, family assets. The foundation is managed jointly by the family so that when a foundation regulation is established demanding changes to the Articles of Association, this means that there will be separation of foundation assets, restoration of the social functions of the foundation, transparency of accountability and publicity of the foundation's financial statements and ownership of the foundation belongs to the community. This condition is certainly burdensome for the foundation's owners.
Keywords: Foundation; Social Function; Financial.
How to Cite: Sunarmi, Nasution, M., & Zakiyah, (2023). Shifting of Social Functions on Management of Foundation in Medan City, Jurnal Ilmiah Penegakan Hukum, 10 (1) 2023 : 79-96
INTRODUCTION
Foundation (stichting) has existed in Indonesia since the Dutch colonial era (Gunawan Wijaya, 2002: 2). In the beginning there were no legal arrangements regarding the foundation, but the term foundation could be found in several provisions of the Civil Code, including Article 365, Article 899, Article 900, Article 1680, Article 1852 and Article 1954 and in Article 6 item (3), Article 236 and Article 890 Rv with different names and mentions include "stichting",
"gestichten" and "armenenistichtingen (L..Boedi Wahyono and Suyud Morgono, 2001: 2). Normatively the arrangement of foundations is subject to habits in society, doctrine and jurisprudence.
In founding the foundation there is also no uniformity. Notaries usually do not have a standard format regarding the founding deed of the foundation. As a result, each foundation can have its own articles of association as well as the Civil Society Association. Each foundation can make the articles of association according to their needs. Likewise, registration of the foundation is sufficiently carried out at the local District Court. Along with the growth of the foundation, more and more foundation disputes were found, including disputes between management and founders or with other parties. There is a tendency or suspicion that the foundation is used to accommodate wealth derived from the founders or other parties obtained through illegal means, even as a place to enrich the founders, administrators or supervisors. The foundation was established with the aim of deviating from the initial goal of creating a foundation legal entity (Chatamarrasjid Ais, 2006: 5). The foundation has been used for purposes that are not for social and humanitarian purposes, such as to enrich themselves or the organs of the foundation, avoid taxes that should be paid, control an educational institution forever, penetrate the bureaucracy, obtain
various facilities from the state or authorities and various other purposes.
The purpose of the foundation has far deviated from the basic functions of the foundation, namely social, humanitarian and religious. These deviations were subsequently corrected on August 6, 2001 with the birth of Law Number 16 of 2001 concerning the State Gazette Foundation (LN) No. 112 of 2001 Supplement to the State Gazette (TLN) 4132 and has been revised by Law No. 28 of 2004 concerning Amendments to Law No. 16 of 2001 concerning LN Foundation No. 115 T.L.N.
4430 (hereinafter referred to as the Foundation Law).
The birth of the Foundation Law resulted in a significant impact on all foundations in Indonesia. The foundation as a legal entity has its own assets separate from the wealth of the founders (Trustees), Management and Supervisors.
If all this time the foundation is considered the property of the founders of the foundation, after the issuance of the Law the Foundation no longer belongs to the founder of the foundation but belongs to the community.
The government provides opportunities for old foundations to make adjustments to the Articles of Association through Article 71 (1) which determines that when this Law comes into force, the Foundation has: a. registered at the District Court and announced in the Supplement to the State Gazette of the Republic of Indonesia; or b. registered with the District Court and has permission to carry out activities from the relevant agency; still be recognized as a legal entity, with the provision that no later than 5 (five) years after the entry into force of this Law the Foundation must adjust its Articles of Association with the provisions of this Law. (2) The Foundation as referred to in paragraph (1) must be notified to the Minister no later than 1 (one) year after the implementation of the adjustment. (3) Foundations that do not adjust their
81 Articles of Association within the period referred to in paragraph (1) may be dissolved based on the Court's decision on the request of the Prosecutor's Office or interested parties.
The order to adjust the Articles of Association is then regulated in PP No. 68 of 2004 and PP No. 2 of 2013. But it turns out that in the practice of adjusting orders the Articles of Association are still not fully implemented. Founders of the Foundation have not made amendments to the Articles of Association following the provisions of the Foundation Law.
This research is important to see the shift in the goals of the foundation which was originally used for the benefit of the founders of the foundation towards the goals in the social, religious and humanitarian fields.
RESEARCH METHODS
The study was conducted using a normative juridical approach with the aim of obtaining secondary data, namely the inventory of legislation and data collection tools in the form of document studies.
Empirical data collection to obtain primary data obtained directly from respondents with data collection tools in the form of questionnaires and interview guidelines.
The research was carried out in Medan with the reason that there were many foundations in Medan that were engaged in various fields such as education, hospitals, religion and humanity. Research was also conducted in Jakarta to collect secondary data.
Secondary data. Collected through literature studies by inventorying a number of laws and regulations related to foundations as primary legal material, a number of previous studies on foundations were followed by journals about foundations, literature in the form of books and various papers in seminars on foundations. Primary data. Obtained by observing directly to the research location.
The population of this study is all foundations in the city of Medan.
Respondents were determined by purposive sampling by determining foundations that represented the field of activities of foundations such as foundations engaged in education, health, religion, arts, environment and other fields. Data collection was conducted through interviews with foundation organs such as Trustees, Management and Supervisors, Notaries, Regional Office of the Ministry of Law and Human Rights, Ministry of Education, Ministry of Health, Ministry of Religion. Data collection tools are in the form of interview guidelines.
RESULT AND DISCUSSION
Changes to the Foundation's Articles of Association
The Foundation Regulation began with the birth of Law No. 16 of 2001 concerning the Foundation (Republic of Indonesia State Gazette of 2001 No. 112, Republic of Indonesia Regulation No.
4132) promulgated on August 6, 2001 and entered into force on August 6, 2002) and amendments to Law No. 28 of 2004 concerning Amendments to Law No. 16 of 2001 concerning the Foundation (State Gazette of the Republic of Indonesia No.
115 of the Republic of Indonesia Regulation No. 4430) which was ratified and promulgated on October 6, 2004, then followed up with implementing regulations, namely PP No. . 63 of 2008 (TLN. No. 4894) and PP No. 2 of 2013 concerning Amendments to PP No. 63 of 2008 concerning the Implementation of the Law on the Foundation (LNRI. No. 2, TLNRI No. 53870. Then added to the Minister of Law and Human Rights Regulation No. 2 of 2016 concerning the Procedure for Submitting Legal Entity Ratification and Approval of Amendments to Articles of Association and Submission of Budget Change Notifications Basic and
Data Change Foundation. (Habib Adjie dan Muhammad Hafid, 2016: 1).
UU no. 16 of 2001 concerning Foundation Birth of Law No. 16 of 2001 concerning the Foundation requires all foundations that were established before the birth of Law No. 16 of 2001 concerning foundations (hereinafter referred to as Law No. 16 of 2001) to make amendments to the Articles of Association in accordance with the Foundation Law.
Article 71 of Law No. 16 of 2001 determines:
(1) When this Law comes into effect, the Foundation has already:
a) registered at the District Court and announced in the Supplement to the State Gazette of the Republic of Indonesia, or
b) Registered in the District Court and has permission to carry out activities from the relevant agency, it is still recognized as a legal entity, provided that no later than 5 (five) years after the entry into force of this Law the Foundation is obliged to adjust its Articles of Association with the provisions of this Law.
2) The Foundation as referred to in paragraph (1) must be notified to the Minister no later than 1 (one) year after the implementation of the adjustment.
3) Foundations that do not adjust their Articles of Association within the period referred to in paragraph (1) may be dissolved based on the Court's decision on the request of the Prosecutor's Office or interested parties.
From the provisions of Article 71 above, the Foundation which does not make adjustments to the Articles of Association in accordance with Law No. 16
of 2001 can be dissolved at the request of the Prosecutor's Office or other interested parties. The authority to submit a request for dissolution of the foundation is submitted to the Prosecutor's Office so that the Prosecutor's Office must be active to supervise the Foundation that does not make amendments to the Articles of Association.
From the provisions of Article 71 of the Foundation Law, the legal entity status of the foundation can be divided into:
1. Foundation that is still recognized as a legal entity and has carried out its obligations to make adjustments and notifications to the Minister;
2. Foundations that remain recognized as legal entities but have never made adjustments to the Foundation Law;
3. Foundations that are still recognized as legal entities and have made adjustments to the Foundation Law, but have not notified the Minister;
4. Foundations that are not recognized as legal entities. (Hendricus Subekti, Mulyoto, 2013 : 2 – 3.
UU no. 8 of 2004
UU no. 8 of 2004 amended Article 71 to read as follows:
(1) At the time this Law comes into force, the Foundation is:
a. has been registered at the District Court and announced in the Supplement to the State Gazette of the Republic of Indonesia, or
b. Registered in the District Court and has permission to conduct activities from the relevant agency, it is still recognized as a legal entity, with the provision that no later than 3 (three) years after the entry into force of this Law the Foundation must adjust its Articles of Association with the provisions of this Law.The foundation
83 that has been established and does not fulfill the provisions referred to in paragraph (1), can obtain legal status by adjusting its Articles of Association with the provisions of this Law, and submit an application to the Minister within a period of no later than 1 (one) the year from the date this Law comes into force.
(2) The Foundation as referred to in paragraph (1) must be notified to the Minister no later than 1 (one) year after the implementation of the adjustment.
(3) Foundations that do not adjust their Articles of Association within the period referred to in paragraph (1) and foundations as referred to in paragraph (2), cannot use the word "Foundation"
in front of their names and can be dissolved based on the Court's decision on the request of the Prosecutor or party who has an interest.
If the foundation is not allowed to use the word "Foundation" in front of its name, the community will find it difficult to recognize the institution as a foundation because there is no foundation in the foundation letter of the foundation or the name of the foundation and all the identities of the foundation. (Ali Ridho, 2004: 108). Regarding the use of the name of the foundation, it is highly highlighted because the community must also be able to access easily and comprehensively the foundations. (Wahyono, 2001).
Government Regulation (PP) No. 63 of 2008
As an implementing regulation of the Foundation Law, Article 36 PP No. 63 of 2008 determines:
1. A foundation that has been established before the enactment of the Law and is
not recognized as a legal entity and does not implement the provisions of Article 71 paragraph (2) of the Law, must submit an application for ratification of the deed of establishment to obtain legal status as referred to in Article 15.
2. The deed of establishment as referred to in paragraph (1), in the premise of the deed mentioned the origin of the founding of the foundation including the wealth of the foundation concerned.
3. The legal actions taken by the foundation as referred to in paragraph (1) that have not obtained legal status are the personal responsibility of the members of the foundation organ jointly and severally.
Pursuant to Article 36 which is the transitional article above, the old foundations that have existed before the Foundation Law, which are deemed not to be incorporated under Article 71 paragraph (2) are obliged to conduct the initial establishment of the foundation and in the premise of the deed must be explained the origin of the foundation's foundation . This is important to get the legal entity status of the foundation.
Against those who have not had time to make adjustments to the Articles of Association as ordered in Article 71 paragraph (2) they have not been incorporated, then the legal foundation has no legal status and must be dissolved, it is not permissible to use the word
"Foundation" in front of it even though the foundation has developed and managing education or hospital. this is certainly not fair to the organ of the foundation and its stakeholders. Finally the government issued PP No. 2 of 2013.
Article 15 PP No. 63 of 2008 determines:
1. The application for the ratification of the Foundation's deed of establishment to obtain the legal entity status of the foundation is submitted to the Minister by the founder or his proxy through a notary who makes the deed of establishment of the Foundation.
2. The application as referred to in paragraph (1) is attached:
a) A copy of the foundation's deed of establishment;
b) Photocopy of Foundation Taxpayer Identification Number that has been legalized by a notary;
c) Statement of domicile accompanied by complete address of the Foundation signed by the Foundation Management and known by the village head or the head of the local village;
d) Proof of deposit or proof of bank statement on behalf of the Foundation or a written statement from the founder which contains information on the value of wealth separated as initial wealth to establish the Foundation;
e) Founder's statement regarding the initial validity of the assets;
f) Proof of deposit approval and announcement.
3. Submission of an application for ratification of the foundation's deed of establishment to obtain the legal entity status of the foundation as referred to in paragraph (1), must be submitted to the Minister no later than 10 (ten) days from the date of establishment of the foundation deed signed.
PP No. 2 of 2013
In order to overcome the problems of foundations that have not been incorporated as government legal entities,
add an article between Article 15 and 16 PP NO. 63 of 2004, namely Article 15 A.
This Article means that for old foundations that are deemed not to be incorporated under Article 71 paragraph (2) threatened with dissolution and may not use the word
"foundation" in front of his name given the allowance and opportunity to remain allowed to make adjustments without having to first dissolve or liquidate his assets. The foundation may directly request the validation of its legal entity to the Ministry of Law and Human Rights through a notary public who makes the deed by mentioning in the premise the origin of the foundation and several other requirements.
Against old foundations that remain recognized as legal entities and have not adjusted to the foundation law until October 6, 2008 as the deadline for adjusting the Articles of Association according to the instructions of Article 71 paragraph (4) of the Foundation Law, the foundation can no longer use the word
"foundation" in front of his name.
Therefore, the management of the foundation must establish a new foundation and submit an application for approval to the Minister. Applicability of PP No. 2 of 2013 through Article 37 A the foundations are still given the opportunity to make adjustments to the Articles of Association.
Article 37A reads as follows:
1. In the event that the amendment to the Articles of Association as referred to in Article 37 paragraph (1) is carried out for a foundation that cannot use the word "Foundation" before its name, the foundation must meet the following requirements:
a. For at least 5 (five) consecutive years prior to adjusting the Articles of Association, it still conducts activities in accordance with its Articles of Association and
b. Never dissolved.
85 2. Amendments to the Foundation's
Articles of Association as referred to in paragraph (1) are carried out by changing the entire Articles of Association of the Foundation and including:
a. All the foundations owned by the foundation at the time of adjustment as evidenced by:
1) Financial statements made and signed by the Management of the Foundation; or
2) Financial statements audited by public accountants for foundations whose financial statements must be audited in accordance with the provisions of the Act.
b. data concerning the names of members of the Trustees, Management and Supervisors who are appointed at the time of change in the framework of adjusting the Articles of Association.
3. Notification of amendment to the Foundation's Articles of Association as referred to in paragraph 2 that has been adjusted to the Act submitted to the Minister by the Foundation Management or its proxy through a notary who makes a deed to amend the Foundation's Articles of Association.
4. Notification of amendment to the Articles of Association as referred to in paragraph 1 attached:
a. A copy of the deed of amendment to all Articles of Association conducted in accordance with the provisions of the Act;
b. Additional State Gazette of the Republic of Indonesia which contains the founding deed of the Foundation or proof of registration
of the deed of establishment in the district court and permission to carry out activities from the relevant agencies;
c. Report on Foundation activities for 5 (five) consecutive years before adjusting the Articles of Association signed by the Management and known by relevant Agencies;
d. Statement from the Foundation Management that the foundation has never been dissolved voluntarily or based on a court decision;
e. Photocopy of Foundation Taxpayer Identification Number that has been legalized by a notary;
f. A statement of domicile accompanied by the complete address of the Foundation that has been signed by the Foundation Management and known by the Head of the Village or the local Village Head;
g. The foundation's balance sheet is signed by all members of the foundation organ or public accountant's report on the foundation's wealth at the time of adjustment;
h. Newspaper announcements regarding annual report summaries for foundations whose portion of wealth comes from state assistance, foreign assistance, and or community contributions as referred to in Article 72 of the Law;
and
i. Proof of depositing fees for notification of changes to the Foundation's Articles of Association and its announcement.
For old foundations that have made adjustments but have not notified such adjustments to the Minister, their existence can still be recognized as a legal entity with the provision that they have to report on the foundation's activities for 3
(three) consecutive years in accordance with its Articles of Association (Article 39 PP Np 2 of 2013) or in other words adjustments made by the Foundation before and / or on October 6, 2008, reprinted (no need to make new adjustments) attached with activity reports for 3 (three) consecutive years (according with its Articles of Association), then sent to the Minister as a notification / report on adjustments to the Foundation Law (Mulyoto, 2015)
PP No. 2 of 2013 actually helped many old foundations that had not adjusted their Articles of Association to the Foundation Law. Through Article 37 A PP No. 2 of 2013, the old foundations must fulfill a number of requirements, including at least 5 (five) consecutive years before adjusting the Articles of Association to carry out their business activities in
accordance with the Articles of Association and have never been dissolved. The amendment to the Articles of Association is carried out thoroughly and lists all of the foundation's assets owned at the time of adjustment as evidenced by the financial statements made and signed by the management of the foundation. The financial statements have been audited by a public accountant.
Although Law No. 16 of 2001, Law No. 28 of 2004, PP No. 63 of 2008 and PP No. 2 of 20013 has required foundations that have been established before the issuance of a series of foundation regulations to adjust their Articles of Association with the Foundation Law, but found foundations that have not yet adjusted their basic budget.
This study was conducted on 29 cities in Medan with the following details:
Table 1: Types of Foundations that Become Research Respondents
No. Category Total Frequency
1 Education 18 62,07
2 PKPA 2 6,90
3 Living environment 1 3,45
4 Social 4 13,79
5 Urban Social Working Group 1 3,45
6 Hospital 1 3,45
7 Islamic boarding school 1 3,45
8 Religion 1 3,45
Total 29 100
Source: Primary Data
The most respondents in this study are foundations engaged in education. This is based on the provisions contained in the National Education Law which states that the implementation of education carried out by the community is mandatory in the form of a non-profit legal entity. The legal entity that aims at non-profit is the foundation so that this foundation is formed by the community with the aim of participating in advancing education. The purpose of advancing education is included in the social goals of humanity, without questioning the origin of receiving educational contributions, or in other words the source of income, but what is important is the purpose. The education
sector is one of the fields that uses the foundation's legal form the most (Anwar Borahima, 2010: 90). So it is natural that more foundations in the community are engaged in education.
Furthermore, out of the 29 foundations that became respondents in this study there were 8 foundations that had not adjusted their Articles of Association to the Foundation Law. This can be seen in Table 2 below.
Table 2: Foundations that have / have not adjusted the Articles of Association with the
foundation law
No. Category Total Frequency
1 Already 21 72,41
87
2 Not yet 8 27,59
Total 28 100
Source: Primary Data
When asked the reason for making adjustments to the Articles of Association, the respondent's answers varied by mentioning:
1. Because it is required by the relevant Minister to adjust to the Foundation Law;
2. To fulfill the requirements for founding a foundation;
3. In accordance with national education;
4. Adjusting to the provisions of the Indonesian Ministry of Law and Human Rights;
5. Because you must follow the laws and regulations;
6. Because it has been approved by the Ministry of Law and Human Rights Directorate General of AHU so that all requirements have been adjusted to the applicable regulations;
7. In 2013, it has been registered with the Ministry of Law and Human Rights, the AHU section, on the grounds that the Law has stipulated that the Foundation Establishment Deed must have been adjusted as a Legal Entity.
8. Because it is a requirement for licensing activities of the foundation, especially in the field of education;
9. Because as a condition for managing operational permits for administering education;
10. Because the Deed of Establishment was made in 2017 so that it automatically adjusts to the Legal Entity Administration System of the Directorate General of AHU;
11. Deed of Establishment of the foundation has been adjusted to Law No. 16 of 2001jo Law no. 28 of 2004, has also been registered with the Ministry of Law and Human Rights.
12. Adjustment is based on an appeal from the Ministry of Religion of North Sumatra Region. The reason for this adjustment is that when there is assistance (donors) who provide assistance, the foundation can accept it.
So the adjustment of the foundation deed was made before the notary;
13. Choice of legality / NGO legal entity (Choice of Foundation, Association, Federation), but finally PKPA chose the Foundation. It is also a matter of adherence to the legislation in force in Indonesia, because PKPA's work will be integrated with stakeholders in Indonesia and internationally.
It was then asked about the distribution of business activities to the Trustees, Management and Supervisors.
The answer can be found in Table 3 below:
Table 3: Distribution of Results of Business Activities to Foundation Organ No. Distribution of the results of the Foundation's Business
Activities Total Frequency
1 Receive 12 41,38
2 Not accept 15 51,72
3 Don't know 2 6,90
Total 29 100
Source: Primary Data
The reason the foundation does not share the results of the foundation's business activities because the foundation does not yet have an advantage. Whereas those who still receive the results from the foundation's business activities state that the management of the foundation is still carried out by the family so it is natural that the foundation organ held by the family also receives the results of the foundation's business activities.
For the PKPA Foundation explained that there was no distribution of business results to the foundation organs. Activities in PKPA are not distributed to Trustees and Supervisors, but are managed by the Management or Special Team formed by the board.
Likewise, other foundations explained that they never shared the results of the foundation's business activities to the foundation's organs because the foundation's profits were distributed to the foundation's own operations. The foundation has cross- subsidies, the first of which costs are not charged to students who attend school, meaning students are given free school and are given free meals. Second, there are students whose grades are paid in monthly tuition fees.
Furthermore, it was asked about the acceptance of the honorarium for foundation organs, so this can be seen in the following Table 4:
Table 4: Acceptance of Honors by Organ Organizations
No. Acceptance of Honor by Organ Foundation Total Frequency
1 Receive 12 41,38
2 Not accept 17 58,62
3 Don't know - -
Total 29 100
Source: Primary Data.
Some foundation organs say that they still receive honorarium from the foundation because of their activities in the foundation but some foundations do not receive honorarium. Trustees and Supervisors do not receive honorariums, but receive communication fees and transport costs for each meeting as stipulated in the Articles of Association and SOP foundations. Honors are only given to the Management and additional
organs that are formed by the management which is called the Executive Board by PKPA.
Seeing that there are still foundation organs that receive honorarium from the foundation, then it is asked whether there are still multiple positions in the sense that the coach is concurrently the administrator or supervisor, and vice versa. Response answers can be seen in Table 5 below.
Table 5: Foundation organs concurrently also become Directors and Commissioners/
Supervisors of Business Entities established by the Foundation
No. Distribution of the results of the Foundation's Business Activities Total Frequency
1 Dual Positions 14 48,28
2 Not Positions 14 48,28
3 Don't know 1 3,44
Total 29 100
Source: Primary Data
Double positions of Trustees, Management and Superintendents of the Foundation become directors, commissioners of the Foundation for Business Enterprises because the business scope and operational costs of the
foundation are still small, PKPA Foundation explains that:
1. KPA does not yet have a Business Entity, and if there is a plan to create a business entity, then it will be separated from its management and
89 not held by the Trustees, Trustees and Supervisors..
2. PKPA only has program implementation units which are the mandate of the foundation and are fully carried out by the management with additional organs formed by the management.
Likewise, other foundations answered that Human Resources in the
foundation were still very limited, so it was possible to hold concurrent positions.
There were also those who stated that foundation funds were still limited so that multiple positions were held.
Regarding the Foundation's Business Entity, is it in accordance with the purpose and objectives of the foundation.
Respondents' answers can be seen in Table 6 below.
Table 6: Business Activities of the Foundation Business Entity In Accordance with the Purpose and Objectives of the Foundation
No. Foundation Business Activities Total Frequency
1 Suitable 29 100
2 Not suitable - -
3 Don't know - -
Total 29 100
Source: Primary Data
PKPA used to have a business entity in the field of transportation services, and this does not violate the provisions of the law. But now PKPA only runs social, humanitarian and educational activities.
All legacies are in accordance with the laws and social norms in the community.
Seeing that there are still foundations that have not adjusted their Articles of Association to the Foundation Law, it is asked whether it is still known who is the founder of the foundation, the respondent's answers can be seen in the following Table 7.
Table 7: Knowledge of Respondents About Founders of the Foundation No. Knowledge of Respondents About Founders of the
Foundation Total Frequency
1 Know 26 89,66
2 Don't know 3 10,34
Total 29 100
Source: Primary Data
As many as 3 foundations stated that they did not know who the founder of the foundation was and that the existence of the foundation's foundation was unknown, even though some of them had died so that they were embarrassed to make
adjustments to the Foundation's Articles of Association.
Then it was questioned about the separation of the foundation's assets with the wealth of the foundation's organs.
Respondents' answers can be seen in the following Table 8.
Table 8: Separation of the wealth of the Foundation's Founding Wealth No. Separation of Assets Total Frequency
1 Separate 25 86,21
2 Not separated 4 13,79
3 Don't know -
Total 29 100
Source: Primary Data
Next, it is asked about the dual position of the supervisor and concurrently as the board/ supervisor or
vice versa. Respondents' answers can be seen in Table 9 below,
Table 9: Double Position of Foundation Organ
No. Dual Position Organ Foundation Total Frequency
1 Dual Positions 6 20,69
2 Not No Dual Position 23 79,31
3 Don't know - -
Total 29 100
Source: Primary Data
Multiple positions are carried out, among others, because there are still limited human resources such as coaches and concurrent executives. Before the enactment of Law No. 16 of 2001 often the Founder concurrently serves as a board or vice versa. This results in the frequent emergence of personal interests of the board that is detrimental to the foundation in carrying out its activities. (Freddy Haris, 2008: 44). The board in carrying out its duties is based on the trust given by the Trustee or Founder, therefore the actions carried out are in the interests of the foundation as a whole, and not for the personal benefit of the foundation's organs, and must be in accordance with the objectives and intentions of the foundation. (Ais, 2004)
In relation to the length of tenure of the foundation organ there are varied answers. Some answered 5 (five) years, some answered unlimited, depending on the agreement, some answered the time
period was not determined depending on the founder.
PKPA Foundation explained that for the Trustees and Supervisors, the term of office is not stipulated, but the Executive Board that is formed by the management has a 3-year period.
There are also those who explain that for a coach there is no period of time, for the management and supervisor for a 2- year term once there is a replacement.
There are also those who mention 4 years with a maximum term of office for 3 times.
Then about the implementation of the advisory meeting. As many as 22 foundations stated that the implementation of advisory meetings was held every year, while as many as 7 foundations stated that the implementation of advisory meetings was not held every year and some even said that they had never held a meeting of supervisors. This can be seen in Table 10 below.
Table 10: Implementation of Trustee Meetings Every Year
No. Trustee Meeting Total Frequency
1 Every year 22 75,86
2 Not every year 7 24,14
3 Don't know - -
Total 29 100
Sumber : Data Primer
Counselors' meetings are held annually with the reason to evaluate education. Some said that the coach wanted to know the development of the foundation as well as the evaluation of the foundation itself.
There are also those who mentioned that the foundation has a schedule that once a month conducts a meeting of supervisors to find out the progress of the foundation as well as an evaluation of the foundation. PKPA stated that the advisory meetings are held twice a year. While there
91 are still foundations which say that they do not necessarily have a meeting of coaches.
The Trustee Meeting is carried out if necessary.
Furthermore, it was asked about the storage of the foundation document that
the management made and kept notes or writings containing information about rights and obligations and other matters relating to the foundation's business activities. Then the respondent's answer can be seen in Table 11 below.
Table 11: Obligations of Management to Create and Store Foundation documents No. Storage of Foundation Documents Total Frequency
1 Create and Store 25 86,21
2 Don't Make and Store 4 13,79
3 Don't know - -
Total 29 100
Source: Primary Data
It was then asked about the obligation of the management to make and store foundation financial documents in the form of bookkeeping evidence and
supporting financial administration data.
Respondents' answers can be seen in the following table 12.
Tabel 12 : Kewajiban Pengurus untuk Menyimpan Laporan Keuangan No. Preparation and Storage of Financial
Statements Total Frequency
1 Storage of Financial Statements 25 86,21
2 Not Storing Financial Reports 4 13,79
3 Don't know - -
Total 29 100
Source: Primary Data
The management of the foundation did not submit financial reports because the financial statements were prepared by the school rather than the foundation. The Foundation whose management keeps the financial report states that the financial report book is carried out by the board and
submitted to the supervisor. And it is not known whether it is five months from the date of the foundation's book year. There are also foundations that have never made financial reports and annual reports.
Further data can be seen in the following table 13.
Table 13: Obligations of Management in Preparation of Annual Reports No. Preparation of the Year Report Total Frequency
1 Preparation of the Year Report 24 82,76
2 No Annual Report Preparation 5 17,24
3 Don't know - -
Total 29 100
Source: Primary Data
PKPA explained that each year the foundation management makes annual reports of programs and financial reports, for PKPA's financial statements to conduct an external audit conducted by a Public
Accountant. The financial statements of these foundations are signed by the Management and Supervisors. This can be seen in Table 14 below.
Table 14: Signing of Annual Reports by Management and Supervisors No. Signing of Annual Report by Management and
Supervisors Total Frequency
1 Signed 24 82,76
2 Not signed 5 17,24
3 Don't know - -
Total 29 100
Source: Primary Data
Annual reports are signed by management and supervisors as a form of accountability. Subsequently the Year report was approved by the Trustee. But
there are also foundations whose annual reports are not approved by the Trustees as many as 8 foundations as illustrated in the following Table 15.
Table 15: Ratification of the Annual Report by the Meeting of Trustees No. Ratification of the Annual Report by Management and
Supervisors Total Frequency
1 Validated 20 68,97
2 Not validated 8 27,57
3 Don't know 1 3,45
Total 29 100
Source: Primary Data
The Foundation explained that the annual report was approved by the supervisor because it was in accordance with the provisions of the foundation. The Annual Report that has been ratified according to the Foundation Law must be announced on the notice board at the
Office of the Foundation. However, based on data from respondents known from 29 foundations, only 7 foundations announced the Annual Report on the Foundation's notice board. The remaining 22 foundations did not announce it. The complete data is found in Table 16 below.
Table 16: Announcement of the Annual Report Summary on the notice board at the Foundation Office
No. Announcement Total Frequency
1 Announced on the Foundation Office Announcement Board 7 24,14 2 Not Announced on the notice board at the Foundation
Office 22 75,86
3 Don't know - -
Total 29 100
Source: Primary Data
The foundation that does not announce the annual report summary on the notice board at the foundation office is because the foundation does not have a permanent office (still renting a building
for education. Then asked if the Annual Report is announced in the Indonesian Daily Newspaper. Respondents' answers can be seen in Table 17 below this.
Table 17: Announcement of Annual Report Summary in Indonesian Daily Newspapers
No. Announcement Total Frequency
1 Announced in Newspapers 1 3,45
2 Not Announced in Newspapers 28 96,55
3 Don't know - -
Total 29 100
Source: Primary Data
The Foundation which does not
announce the annual report summary in the Newspaper mentions the reason that in accordance with the results of the
93 meeting's decisions and efficiency and no obligation in the provisions of the foundation. Then asked whether the Foundation's Financial Report was audited by a Public Accountant. A total of 14
respondents answered that their financial statements were audited by a Public Accountant and as many as 13 respondents said they were not audited by a Public Accountant.
Table 18: Audit of Financial Statements by a Public Accountant No. Audit of Financial Statements Total Frequency
1 audited Financial Statements 14 48,28
2 Unaudited Financial Statements 13 44,83
3 Don't know 2 6,89
Total 29 100
Source: Primary Data
From the explanation of the foundation, it is known that the foundation does not audit the financial statements of the foundation due to budget constraints and has not become a priority decision of the foundation meeting.
Reasons for Not Amendment to the Foundation's Articles of Association in Accordance with Legislation Regarding the Foundation.
The Regional Government can work together with the Ministry of Law and Human Rights to continuously disseminate the Foundation Law to all foundations in the City of Medan to adjust the Articles of Association according to the Foundation Law.
Against notaries in the region can provide a brief socialization to the foundation about the importance of adjusting the Articles of Association so that the foundation has the validity as a legal entity for any legal actions it does with third parties (Interview with Adawiyah, Notary in Medan).
The Notary also urges and explains the legal consequences of the foundation that has not adjusted its Articles of Association with Law No. 16 of 2001 Jo Law No. 8 of 2004 concerning foundations. The Notary does not have the right to force the foundation's management if the foundation's management does not want to adjust his Articles of Association. Notaries can only appeal and explain the consequences that arise if the foundation does not adjust its Articles of Association with the Foundation Law.
(Interview with Bertha Sianipar, Medan City Notary).
In order to facilitate legal applications for approval and approval of amendments to
the foundation's articles of association, the government issued Regulation of the Minister of Law and Human Rights No. 2 of 2016 concerning Procedures for Submitting Requests for Legalization of Legal Entities and Approval of Amendments to Articles of Association and Submission of Notification of Basic Budget Changes and Amendments to Foundation Data.
Regulation of the Minister of Law and Human Rights 2 of 2016 facilitates the performance of notaries because they have clearly defined the rules and the conditions of the car to request a legal entity for the foundation, approval of amendments to the Articles of Association and the submission of notification of amendments to the Articles of Association and changes in foundation data compared to manual processes before the issuance of the Minister of Law and Human Rights Regulation. 5 of 2015 concerning Ratification of Legal Entities. (Interview with Elmaliza, Notary in Medan City).
In order for the foundations in Medan to make adjustments to their Articles of Association, the relevant agencies in the foundation's activities require that in the management of operational licenses all foundations must have adjusted their Articles of Association. If it is expected from the wishes of the foundation management it is rather difficult, especially if there is no interest in the foundation with the second party, because there are still many foundations that have not adjusted the Articles of Association with the legislation.
(Interview with Yusrizal, Notary in Medan).
From the explanation presented by the Regional Office of the Ministry of Law
and Ham in Medan, it was known that the Ministry of Law and Human Rights never supervised the activities of foundations in the city of Medan. The reason is because it is not included in the duties and functions of the Regional Office of the Ministry of Law and Human Rights.
According to the Regional Office of the Ministry of Law and Human Rights, they did not accept Foundation registration. The nomenclature of foundation registration is known as an application for legalization of a foundation legal entity. Based on Article 11 of Minister of Law Regulation No. 2 of 2016 concerning the procedure for submitting applications for legalization of legal entities and approval of amendments to the Articles of Association as well as submission of notification of amendments to the Articles of Association and
Amendments to Foundation Data, the application for legalization of foundation legal entities is conducted electronically to the Minister of Law and Human Rights through the Legal Entity Administration System (SABH) online.
The mechanism for requesting the validation of the foundation legal entity is explained in detail in Government Regulation No. 63 of 2008, PP No. 2 of 2013, PP No. 45 of 2016, Permenkumham No. 2 of 2016 and Permenhumkam No. 3 of 2016. Besides that the Regional Office of the Ministry of Law and Human Rights explained that they had never conducted special socialization to the foundation. The socialization was carried out by involving the foundation and notary as the maker of the Foundation Establishment Deed.
Achieved Outcomes
No
Output Type Achievement Indicator
Category Sub Category Obligatory Additional TS TS+1
1.
Scientific articles are published in journals
Reputable
international Draf draft
National
Accredited Draf draft
2.
Scientific articles are published in proceedings
Indexed International National 3.
Invited speaker in a scientific meeting
International
National Draf Not yet done
4. Visiting Lecturer International
5.
Intellectual Property Rights (IPR)
Patent No No
Simple patent
Copyright Draf Granted
Trademark Trade secrets Industrial Product Design
Geographical Indications Plant Variety Protection
Integrated Circuit Topographic Protection 6. Appropriate
technology No No
7. Model / prototype / design / artwork /
social engineering Draf Product
8. Textbook (ISBN) Draft Editing
9. Technology Readiness Level (TKT) 5 5
95 CONCLUSION
The obligation to make changes to the Foundation's Articles of Association has been determined in Law No. 16 of 2001 Jo Law No. 8 of 2004 concerning foundations, PP. 68 of 2008, PP. 2 of 2013, PP No. 45 of 2016, Permenkumham No. 2 of 2016 and Permenhumkam No. 3 of 2016. However, there are still 8 foundations that have not made amendments to the Articles of Association in accordance with applicable regulations.
For foundations that have not made amendments to the Articles of Association, the foundations have not been social, humanitarian and religious functions, have not managed a foundation in transparency, accountability, and publicity. The foundation is still managed family and hereditary, the foundation's property is owned by the family and is used for the benefit of the founders of the foundation.
The things that caused the foundations in Medan to not make changes to the Foundation's Articles of Association were because the founders of the foundation did not know where they were, had died, were not in North Sumatra, the cost of ratification of the Articles of Association was expensive and many requirements had to be met such as make statement letters and others. The foundation was established and developed with the family's efforts so that when the foundation developed rapidly and had many assets, the assets were owned by the family, family assets. The foundation is managed jointly by the family so that when a foundation regulation is established demanding changes to the Articles of Association, this means that there will be separation of foundation assets, restoration of the social functions of the foundation, transparency of accountability and publicity of the foundation's financial statements and ownership of the foundation belongs to the community. This condition is certainly burdensome for the
foundation's owners. The wealth of the foundation which has so far belonged to the founder of the foundation and the management of the foundation that was originally carried out by the family must be managed based on the Foundation Law through the foundation organ, namely the coach, the management and the supervisor. The founder can no longer enjoy the wealth of the foundation to his heirs.
REFERENCES
Adjie, Habib dan Muhammad Hafid, Yayasan Memahami Pendirian Perubahan Pembubaran
Yayasan Sebelum dan Sesudah Berlakunya Undang- Undang No. 16 Tahun 2001 tentang Yayasan , Bandung :PT. Citra Aditya Bakti, 2016.
Ais, Chatamarrasjid, Badan Hukum Yayasan, Bandung: PT Citra Aditya Bakti, 2006.
________________, Badan Hukum Yayasan (Suatu Analisis Mengenai Yayasan
Sebagai Suatu Badan Hukum Sosial), Bandung: PT.
Citra Aditya Bakti, 2000.
Ais, Chatamarrasijd, Penerobosan Cadar Perseroan Dan Soal-Soal Aktual Hukum Perusahaan, Bandung : Citra Aditya Bakti, 2004.
Amal, N. Adnan, Yayasan Sebagai Badan Hukum, Varia Peradilan Tahun IV, 1989.
Bahari, Adib, Prosedure Pendirian Yayasan, Yogyakarta : Pustaka Yustisia, 2010.
Borahima , Anwar, Kedudukan Yayasan di Indonesia, Eksistensi, Tujuan dan Tanggung Jawab Yayasan, Jakarta: Prenada Media Group, 2010.
Haris, Freddy, Laporan Akhir Penelitian Hukum Tentang Efektivitas Undang-Undang Nomor 16 Tahun 2001 Tentang Yayasan Sebagaimana
Diubah Dengan Undang-Undang No. 28 Tahun 2004 tentang Perubahan Atas Undang-Undang No. 16 Tahun 2001 Tentang Yayasan Dalam Mewujudkan Fungsi Sosial, Jakarta : Badan Pembinaan Hukum Nasional Kementrian Hukum Dan Hak Asasi Manusia Iskandar, Lisman, Aspek Hukum Yayasan Menurut RI.
Hukum Positif di Indonesia, Majalah
Yuridika Universitas Airlangga, No. 5 & 6 tahun XII, September-Desember 1997.
Juwana, Hikmahanto, Pengelolaan Yayasan di Indonesia dan RUU Yayasan,
http://www.bappenas.go.id/index.php?module=Fil emanager&func=
96 download&pathext=contentExpres
/&view=401/hikmahanto%20Juwana.doc, diakses 6 April 2017.
Kusumastuti , Arie dan Maria Suhardiadi, Hukum Yayasan di Indonesia, Jakarta: PT. Abadi, 2003.
Mulyoto, Yayasan Periodisasi Dalam Pembuatan Akta, Mal Praktek Dalam Pembuatan Akta, Yogyakarta: Cakrawal Media, 2015.
Panggabean, HP, Kasus Aset Yayasan dan Upaya Penanganan Sengketa Melalui Alternatif Penyelesaian Sengketa, Jakarta: Pustaka Sinar Harapan, 2002.
Pramono, Nindyo, Reformasi yayasan Persfektif Hukum Dan Manjemen, Yogyakarta: Andi, 2002.
Ridho, Ali, Badan Hukum dan Kedudukan Badan Hukum Perseroan, Perkumpulan, Koperasi, Yayasan, Wakaf , Bandung : Alumni, 2004.
Sabda, Yoseph Suardi, Yayasan dan Perbuatan Melanggar Hukum, makalah Direktur
Perdata Kejaksaan Agung, Jakarta: 2002.
Subekti, Hendricus, Mulyoto, Yayasan, Solusi Dengan Berlakunya PP No. 2 Tahun 2013, Yogyakarta : Cakrawala Media, 2013.
Widjaya, I.G. Rai Hukum Perusahaan, Jakarta:
Megapoin, 2007.
Wijaya, Gunawan, Yayasan diIndonesia Sesuatu Panduan Komprehensif, Jakarta: PT.Elex Media Komputindo, 2002.
Wahyono , L..Boedi dan Suyud Morgono, Hukum Yayasan antara Fungsi Karitatif atau
Komersial, Jakarta: CV.Novindo Putra Mandiri,2001
