Replacement of Member of The Foundation’s Trustee in A Condition where All of Its Member Have Passed Away

According to Article 28 Paragraph (1) Law Number 16 Year 2001 on Foundation (“UU Yayasan 2001”), Trustee is an organ of Foundation which has authorities which are not given to The Administrator or Supervisor by UU Yayasan 2001 or The Foundation’s Articles of Association. Authorities which are not given to The Administrator or Supervisor include:

1. Decision regarding amendment of The Foundation’s Articles of Association;
2. Appointment and dismissal of member of The Administrator and Supervisor;
3. Determination of the Foundation’s general policies based on the Foundation’s Articles of Association;
4. Validation of work program and budget plan of The Foundation; and
5. Decision regarding merger or dissolution of The Foundation.

(vide Article 28 Paragraph (2) UU Yayasan 2001)

Beside Trustee’s authorities which are mentioned above, Trustee throught its meeting has authority to appoint and dismiss member of  The Foundation’s Administrator and Supervisor (vide Article 32 Paragraph (1) jo. Article 41 Paragraph (1)). Furthermore, someone can be a member of a Foundation’s Trustee if he/she is a founder of The Foundation and/or elected according to the decision of the meeting of Trustee (vide Article 28 Paragraph (3) UU Yayasan 2001). Therefore, Trustee is Foundation’s organ which has the authority to appoint Administrator, Supervisor, and Trustee itself.

And then what if all of the members of Trustee pass away? Isn’t Trustee the only organ which authorized to elect and appoint its own member through its meeting? Meanwhile, in a condition where al of Trustee’s members have passed away, Trustee’s meeting in order to elect new Trustee’s member could not be hold. In connection to the vacancies of The Foundation’s Trustee as mentioned  above, Article 28 Paragraph (4) UU Yayasan 2001 regulates as follows:

“ Foundation for whatever reason no longer has a Trustee, no later than 30 (thirty) days from the date of vacancy, members of the Administrator and Supervisor are required to hold a joint meeting to appoint a Trustee by taking into account the provisions as intended in paragraph (3).”

Related to that, Article 28 Paragraph (3) regulates as follows:

“Trustee as intended in paragraph (1) are individuals as founders of the Foundation and/or those who, based on the decision of the meeting of the Trustees members, are deemed to have high dedication to achieving the goals and objectives of the Foundation.”

Regarding the holding of Administrator and Supervisor’s joint meeting to elect members of the Trustees, the regulation concerning attendance quorum and decision quorum must be taken into account, thus the decision will be valid.  Administrator and Supervisor’s joint meeting must fulfill attendance quorum and decision quorum of  the meeting to amend The Foundation’s Articles of Asssociation as regulated by UU Yayasan 2001 and The Foundation’s Article of Association (vide Article 28 Paragraph (5) UU Yayasan 2001). UU Yayasan 2001 regulates that Trustee’s meeting to amend The Foundation’s Article of Association can only be held only if at least 2/3 (two thirds) of the number of Trustee members are present (vide Article 17 Paragraph (2) UU Yayasan 2001). Whereas  regarding decisions, they are determined based on deliberation to reach a consensus or based on the approval of at least 2/3 (two thirds) of the number of Trustee members who are present if deliberation to reach a consensus can not be reached. Because the joint meeting is held by Administrator and Supervisor to elect member(s) of Trustee, the attendance quorum and decision quorum regulation as mentioned above apply to the number of members of the Administrator and Supervisor.

If the joint meeting has elected the member(s) of Trustee who will replace the members of Trustee who have passed away, the composition of new members of Trustee simply needs to be notified to the Minister of Law and Human Rights (“Menkumham”). This is related to the regulation in Article 18 Paragraph (1) and Paragraph (2) Ministerial Regulation of The Minister of Law and Human Rights Number Number 2 of 2016 concerning Procedures for Submitting Applications for Legalization of Legal Entities and Approval of Amendment to the Articles of Association and Submission of Notification of Changes to the Articles of Association and Changes to Foundation Data (“Permenkumham 2/2016“) which regulates as follows:

1. Certain Amendments to the articles of association must be approved by the Minister.
2. Amendments to the articles of association as intended in paragraph (1) include:
   1. name of the Foundation; And
   2. Foundation activities.”

Requests for notification of amendments to the Articles of Association to the Minister of Law and Human Rights are carried out by the Foundation Management to be recorded in the Foundation Register and announced in the Supplement to the Official Gazette of the Republic of Indonesia (vide Article 18 Paragraph (1) Government Regulation Number 63 of 2008 on Foundation). However, in terms of managing amendments to Foundation organs, Permenkumham 2/2016 regulates that the notary is the party who carries it out, as regulated in Article 24 Paragraph (1) Permenkumham 2/2016 as follows:

“Amendments to the Foundation’s articles of association other than those referred to in Article 18 are sufficient to be notified by the Petitioner to the Minister.”

Furthermore, Article 1 Number 3 Permenkumham 2/2016 explains the definition of “Applicant” as follows:

“The applicant is a Notary who is authorized to submit a request for legalization of the Foundation’s legal entity through SABH”

In practice, the Administrator and Supervisors will authorize one member of the Administrator to come to and ask a notary to make a deed of minutes of the joint meeting along with the joint meeting resolutions which has elected new member(s) of Trustee and submit a request for notification of amendments to the Articles of Association to Menkumham.