FORCED EVICTIONS IN DKI JAKARTA

By Alghiffari Aqsa & Ahmad Biky, Jakarta Legal Aid Institute (LBH JAKARTA)[1]

 

A.  THE PROBLEM OF FORCE EVICTIONS

      1. The Cause of Forced Evictions

Lack of Knowledge and Awareness Related To Adequate Housing Rights

Although Indonesia has ratified the International Covenant on Economic Rights, Social, and Cultural Rights by Law No.11 Year 2005, there are still gaps in knowledge concerning the right to housing as a human right, as a primary right in the fulfillment of economic, social, and cultural. Even in our advocacy experience to refuse the Law No.1 Year 2011 on Housing and Settlements, almost all members of the parliaments did not know about the International Covenant on Economic, Social, and Cultural Rights. As well as make covenants or its general comments as one of the basic legislation for the right to housing. So Law No. 1 Year 2011 only admits adequate housing as livable and affordable, and disregards Security of Tenure, Availability of services, materials, facilities and infrastructure, Habitability, Accessibility, Location, and Cultural adequacy as elements of adequate housing rights.

So do not be surprised if there are problems of housing and land disputes, the government and the legislature did not fulfill their obligations to respect, protect and fulfill the right to housing of its citizens. The government will justify forced evictions, despite causing many homeless or victims of violence. Many victims of forced evictions do not get an alternative solution to their right. Instead, they are often considered squatters, land grabbers, slum population, destroying the beauty of the city, etc. Most people also think so that justifies and supports the occurrence of forced evictions.

We can also look at the policies set forth by the government of DKI Jakarta in the Revenue and Expenditure (Budget) in 2012, the budget for eviction estimated at Rp. 1,502,014,664,700, but inversely proportional to the government’s obligation to fulfill the right to housing in which budget lines for construction of flats is Rp. 617.45 billion spread over 21 activities. This really indicates how good will to do the fulfillment of the right to housing is still far from expectations, on the contrary the government prefers destroy dwellings have been made independently by its citizens.[2]

The numbers of cases related to the right to adequate housing which are handled by LBH Jakarta are as follows:[3]

Year

Number of Cases

Number of People Who Are Affected

2007

9

359

2008

21

5.104

2009

8

1.409

2010

24

7575

2011

34

1176

2012

23

2545

Order and Fineness

By reason of order and fineness, many forced evictions occur validated by the various laws and regulations. For example, Local Regulation No. 8 Year 2007 which is a revision of Local Regulation 11 Year 1988 on Public Order in Jakarta. Many poor people are forced to build homes in the abandoned land, green areas, riverbanks, under bridges, under the highway, and other prohibited place for the right to housing is not met by the government. Under Regulation No. 8 In 2007, they were threatened with imprisonment for a minimum of 30 days up to 180 days for misusing function greenbelt, parks and public space (Article 12 paragraph d) or prohibited to build and live under the overpass, under the expressway, lane green, parks and public places (article 20 d).

The Concentration of Lands and Houses Ownership in a Handful of People

In Jakarta, we can see that a lot of people who have large land and houses are not only used as a residence, but also used as an investment instrument. Housing development was dominated by property tycoons who provide housing for middle to upper. The National Housing and Urban Development Corporation (Perumnas) cannot meet the need for housing for the poor. Finally on the other hand more than 13 million people do not have a house in Indonesia.

Spatial Politics                       

The existence spatial politics is getting rid of society, especially vulnerable or poor communities. Urban spaces are preferred to build expressway, green open spaces, industrial areas, shopping centers, and elite residential. Poor people will live in slums, restricted areas, or living in distant suburbs from work and take a long time to travel.

Spatial policies without people participation also have contributed to the violation of the rights to land and shelter. Through policies in areas such as in Jakarta, Bekasi, Bekasi, Bogor Regency, Tangerang and Tangerang regency, land rights and shelter residents violated. Transfer of functions as well as the spatial whitening has made residents must move out of his house.[4]

Landlessness and Land Abandonment

National Land Agency noted that there are 7 million hectares of abandoned land in Indonesia. The wide is not including the wasted land owned by individuals in the amount of less than 5 acres. Land for housing eventually is more expensive because of the amount reduced. The Government has issued Government Regulation no. 11 of 2010 on Land Reform and Control Neglected, but not implemented by the firm. At the number of abandoned land is certainly reasonable if many people then occupied land to build homes that are their basic needs.

Regional Office of Land in some areas does not dare to apply such measures. For example: in the region of West Java, Cilengsi and Kampong Pilar community has filed a revocation of rights to land they already use so far. Their land has been occupied by the owners, who are not responsible, a certificate of rights appears suddenly, and there is has been no use of the owner for more than 10 years. But Land Regional Office did not respond the requests of the Cilengsi and Kampong Pilar community. [5]

The Use of Land for Public Purposes

The use of land for public purposes is often used as an excuse by the government to evict residents. But often it is just a strategy to support the interests of others. For example, residents of Rawa Sari (East of Jakarta) evicted by local government to build a green open space, in fact the land is currently used as apartments not green open space. Another example is the BMW Park eviction in 2008, residents evicted because they built house in the area of green open space, until now there has not been any development on the land and it is planned to build a world-class stadium.

Currently, the government and parliament have made the Act No. 2 Year 2012 on Land Acquisition for Public Purposes and Development. The law expedites land acquisition and also speed up the eviction-related to public purposes, classified as follows:

a. defense and national security; b. public roads, highways, tunnels, railways, train station, and the train operating facilities; c. reservoirs, dams, weirs, irrigation, drinking water supply, drainage and sanitation, irrigation and other buildings; d. ports, airports, and terminals; e. infrastructure of oil, gas, and geothermal; f. generation, transmission, substations, network, and power distribution; g. Government telecommunications and information networks; h. waste disposal and treatment; i. hospital / regional government; j. public safety facilities; k. common burial place / regional government; l. social facilities, public facilities, public green and open space; m. nature reserves and cultural heritage; n. office / regional government / village; o. Structuring of urban slums and / or consolidation of land, as well as housing for low-income people with rental status; p. educational facilities or schools / regional government; q. sports infrastructure / regional government, and r. common market and a common parking lot.

Although this law also accommodates the procurement of land for housing for the benefit of low income people, the government has never been used it. The government only used it for infrastructure.

Inconsistency of Government in Running the Basic Agrarian Law

Inconsistencies seen in some instances such as the provision of Article 15 of the Basic Agrarian Law, which reads: “Maintaining the land, including adding fertility and preventing damage is the duty of each person, legal entity or agency that has a legal relationship with the land, taking into account the are economically weak.” Article 52 of the BAL says “Whoever knowingly violates the provisions of Article 15 shall be punished with 3 months maximum imprisonment and / or a maximum fine of Rp. 10.000, -” if such provision should be implemented, then the land could be criminal negligence.

In addition, article 6 of Law No. Regulation 5 of 1960 on Basic Agrarian which asserts that “All rights to the land has a social function“. Then the land should be earmarked for social interests or public interests. The more explanation of the article that “not only property rights but all rights to the land has a social function”. This means that not only prioritized for public ownership of the land but also the function of priority for the community. Furthermore, the letter II figure (4) Explanation of the Basic Agrarian Law explains:

“This means, that any land rights that exist in a person, it cannot be justified, that the land would be used (or not used) solely for their own interests, especially if it is causing harm to the public. Land use should be tailored to the circumstances and nature than the right, to benefit both the welfare and happiness that have it as well as beneficial to society and the State.

In connection with its social function, it is a reasonable thing that the land must be well maintained, in order to increase fertility and prevented the damage. Obligation of maintaining this land is not only borne by the owner or right holder in question, but also a burden of any person, legal entity or agency that has a legal relationship with the land (Article 15). In implementing this provision, it will be considered the interest of the weak economic parties.”

In fact, the governments never use those articles above in land conflict or housing cases. The poor always lose, the corporate has a privileged.

2.     The Process of Forced Evictions

Local Government Has Significant Authority to Evict

Government Regulation in Lieu of Law No. 51 Year 1960 on Prohibition of Land Usage without Permission from Eligible or Legal Authorized (Undang-Undang No. 51 PRP Tahun 1960 tentang Larangan Pemakaian Tanah Tanpa Ijin Yang Berhak Atau Kuasanya) is a tool for local government to undertake force eviction.[6] With still implemented Law No. 51 PRP Year 1960 on Prohibition of Land Usage without Permission Eligible or Legal Authorized (“Regulation”), the problem related housing rights will continue to happen. This Regulation has given large power to Local Government to undertake eviction. Local Government is given authority to become “judge” who can decide someone is eligible or not for rights of land or dispute object without pass court process and comprehensive evidence verification. That authority has compounded with execution authority to undertake emptying and dismantling toward someone’s house even though court decision which have legal binding power not yet release.  That provision is stated in these Articles below:

Article 3

1)     Local Government can undertake the actions to resolve usage of land which are not plantations and not forest without permission from eligible or legal authorized, which are in each region in one time.   

2)     The Settlement is stated in Paragraph 1 of this Article is providing with considering of plan land use and designation land of it may concern.

Article 4

1)  In order to settlement land use which sated in Article 3, Local Government can give instruction to the user to emptying the land with any kind of property and person who receive rights from it.

2) After the expiration of grace period from emptying instruction as stated in Paragraph 1 of this Article not yet fulfilled by the concerned person, the Local Government or the Authorized who given that instruction will undertake the emptying of land with cost by user land itself.

 

Local Government doesn’t need to intervene the problem/conflict  which inside of private between one citizen with other citizen.  Dismantling building and/or stopped other activies in on land is stipulated are the action over the athority. In practical, not rare this authority used to become business by the authorizer who cooperate with company’s ocnum who want to obtain the land with fast process and arbitray with giving some benefit, so that the Authorizer or Government will issue first Warning Letter 7 x 24 hours, second Warning Letter 3 x 24 hours and the last Warning Letter 1 x 24 hours.

This implementation of Regulation not rare has create violation of housing rights, especialy for poor people in urban areas. Basically this Regulation against to higher Law/Regulation. In this Regulation, Local Government as the holder of executive authority has do action as holder of yudicative authority, moreover the has act beyond than holder of yudicative authority especially in matter of undertake forced action. In provision of The Book of The Law of Criminal Procedure Law (KUHAP) the forced action such as search, seizure and arrest must be pass permission from the Court because the Court is the most authorize institution which authorize to examine, decide and adjudicate the case including land dispute or housing dispute. For civil/private dispute related with land or housing  is examined with carefully and detail with certain flow of procedure from level District Court, Seperior Court and Supreme Court which spend yearly time to decide who is the party/person who eligible for land or housing as dispute object.  But, by this Regulation (Law No. 51 PRP Year 1950), Local Government  can decide who is the eligible party and not and also can undertake force eviction within of days.

This Regulation has created forced eviction which overt against rights inside of International Covenant on Economic, Social, and Cultural Rights where the actor is State. Beside of that, practice of forced eviction potential to create violation of civil rights and politic, such as right to life, right of security, freedom from intervene of private life, family, household and also right to the peaceful enjoyment and possession.

Indonesia as the Party who ratify convention of International Covenant on Economic, Social, and Cultural Rights, with refer to forced eviction is supposed to obey Article 11 Paragraph (1) regarding rights of residential (housing). The Committee strictly stated that assumption inside of Article 2 Paragraph (1) about “phased achievement based on resources availability” is not applicable to practice of force eviction. The Committee said that the Country must refrain itself from forced eviction and also guarantee law will be enforced to it officer or third party who undertake force eviction.

This Regulation is also contradicted with Committee statement. The Committee agree that rights for not evicted with forced action is completing with right to free from arbitrary intervene or against the law toward someone’ household which has guaranteed by Article 17 (1) from International Covenant of Civil Rights and Politic. The Committee also said that obligation to protect these rights is not depend on resources availability. So that, with refer to Article 17 (1)  International Covenant on Civil and Political Rights, The Committee reinforce their argument whereas assumption phase achievement is not applicable toward forced eviction. This problem is increasingly clear in Law because there is no provision regulate about protection for them to become victim.

 

Eviction Never Follow General Comment No. 7: The right to adequate housing (art. 11.1 of the Covenant): forced evictions.

The entire eviction cases that occurred in Jakarta have never noticed General Comment No. 7: The right to adequate housing (art. 11.1 of the Covenant): forced evictions. There were so many violations of these procedures:

(a) an opportunity for genuine consultation with those affected; (b) adequate and reasonable notice for all affected persons prior to the scheduled date of eviction; (c) information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected; (d) especially where groups of people are involved, government officials or their representatives to be present during an eviction; (e) all persons carrying out the eviction to be properly identified; (f) evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise; (g) provision of legal remedies; and (h) provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.

The only procedure that the government did in evictions is only “adequate and reasonable notice for all affected person prior to the scheduled date of eviction”. The rest, there was no genuine consultation, information on the proposed eviction, presence of authorities, legal aid, and legal remedies. Even, forced eviction was also done at night or in bad weather, using fake reason to support the interest of companies, mobilized thugs, etc.

In any effort to avoid forced evictions, LBH Jakarta always use General Comment No. 7 as the base argument. However, that argument was never honored and the eviction is still being done. Likewise in the process of the court, in any lawsuit over forced evictions, LBH Jakarta has always argued that the eviction process must be in accordance with the General Comment No. 7. The argument was never relied upon by the court in deciding the case of forced eviction. This was due to the general comment is not regarded as something that is binding, so that the necessary domestic legislation containing the substance of the public comment and can be applied in Indonesia. 

Criminalization to Evict

In conducting the forced evacuation, both governments and private are not only using violence or force deployment forces to evict the occupants, but also the use of criminal law to criminalize residents who do not want to go away from home. The articles used to criminalize residents are:

– Article 6 of Government Regulation in Lieu of Law No. 51 Year 1960 on Prohibition of Land Usage without Permission from Eligible or Legal Authorized:

“1. Without prejudice to the provisions of Article 3.4 and 5, it may be liable with imprisonment of up to 3 (three) months and / or a fine of Rp 5.000, – (five thousand dollars);

a. Whoever wears the right to land without permission or legal personal representative, with provided that if the estate lands and forests excluded them which will be completed in accordance with Article 5, paragraph 1;

b. whoever is entitled to interfere with legitimate proxies in use rights to a land parcel;

c. whoever told, invite, persuade or advocate orally or in writing acts referred to in article 2 or sub b of paragraph 1 of this article;

d. whoever gives assistance in any way to commit the act in section 2 or paragraph b of paragraph 1 of this article;”

– Article 167 paragraph (1) of Indonesia Criminal Code:

Any person who illegally forces his way into the dwelling or the enclosed room or grounds, used by another, or staying there illegally does not move away immediately at the demand of or on behalf of the rightful claimant, shall be punished by a maximum imprisonment of nine months or a maximum fine of three hundred Rupiahs.

For the example, criminalization of three old women:

Soetarti Soekarno (78 years), Rusmini Kusaini (78 years), and Timoria (78Tahun) are the widow of retired employees of Perjan Pegadaian (Pawnshop, State owned company). As for Mrs. Soetarti and Mrs. Rusmini are the widow of Army fighters who have been given awards and honors by government for meritorious in various wars to maintain the independence and sovereignty of Indonesia.

They have lived in the State House of Perum Pegadaian (Pawnshop) since the 1980s. Problem then arise when third husband and the grandmother retired from Perum Pegadaian and ordered to immediately clear the house. Third grandmother did not comply with the order because under PP. 40 Years 1994 jo PP. 31 of 2005 on the State House they have the right to buy. When they sued to Administrative Court and cases not legally binding, they are reported to the Police with Article 167 paragraph (1) of the Criminal Code and Article 12 paragraph (1) in conjunction with Article 36 paragraph (4) of Law no. 4 of 1992. Finally they were tried at the Central Jakarta District Court. After 6 month of trial, Court Decided release these grandmothers and free from all charges (Onstlag van alle rechtsvervolging) or otherwise prematurely because of criminal charges against this criminal case was suspended causality to Decisions are fixed (inkracht van Gewijde) of the State Administrative Court or other Courts.

– Article 151 of Law No. 1 Year 2011 on Housing and Settlements

“Any person who willfully refuses or obstructs resettlement houses, housing, or settlements that have been established by the Government or local government after an agreement with the local community, as referred to in Article 142, shall be punished with imprisonment for a maximum of 1 (one) years or a maximum fine of 100,000,000, 00 (one hundred million rupiah) “. This article is potentially used to criminalize residents, because in fact genuine consultation, mediation, and agreement to resettlement is very complicated and tricky.

B.   FORCE EVICTIONS CASES

1) Budi Dharma Case

On November 18, 2009, 122 families or 525 people were evicted by the Government of DKI Jakarta in the area of Rt.03/RW.03 Budi Dharma, Semper Timur, Cilincing, and North of Jakarta. The reason of the forced eviction was not clear, at first PT. Pulo Mas Jaya (PMJ) explained that the river will be widening due to the river normalization program, but later the Government of DKI Jakarta explained that they want to make Rumah Susun Hak Milik (Rusunami)[7] in Budi Dharma area. City Government of North Jakarta issued Surat Perintah Bongkar (Unloading Warrant) because PT. PMJ claimed the area as their land and they have Letter C.[8]

The execution of forced eviction carried out while it was still dark/night, at 5:00 A.M, and raining. The people had no time to remove their properties; many treasures were inside the house, buried by rubble, and damage by exposure of rain water. Until the second week after the forced eviction, victims were still living in emergency tents and shacks.

In addition, forced evictions also performed with excessive deployment of Satpol PP (Public Order Officers) and supported by the police and military that number was estimated as many as 3,000 personnel. As a result of this excessive deployment, 5 (five) people suffered serious injuries and 20 (twenty) minor injuries. Actors were not able to be identified by the victim because the Satpol PP officers using riot attributes that cover the identity (name) attached to his chest. Violence should not happen if the police act fairly without having to be a shield for the perpetrator of forced eviction. The victims reported the violence and mistreatments to the Indonesian Police, but there was no follow up and trial to the perpetrators.

Force eviction victims then filled class action against Governor of DKI Jakarta, North of Jakarta Mayor, Head of Police Order, and Head of Cilincing Subdistrict. North Jakarta District Court granted some of the petition, the class action and the defendants have to pay Rp.1 billion and make a committee for the compensation payment. The Defendant still challenge this case to the Supreme Court, and the plaintiffs still waiting for the final decision.

Now, some of the evictees leaved the Budi Dharma area to find another place to live. Some of the evictees are still in Budi Dharma in semi-permanent houses. There is also land sharing solution proposal which are proposed by the evictees, but not yet implemented, the government still waiting for Supreme Court decision, without considering the rights of the evictees to adequate housing.

2) Pos Duri Case

On May 27, 2013, PT Kereta Api Indonesia (PT KAI), a state-owned enterprise on train services, evicted residents living around the Pos Duri Station, Tambora, West of Jakarta. Thirty three (33) families consist of 162 people evicted with other victims, 176 vendors around the station. Previously on May 16, 2013, PT. KAI issued a warrant to the evictees to leave the premises and dismantle buildings.

Eviction is not only happened in Pos Duri Station, but also to all vendors around the station in Jakarta, Bogor, Depok, Tangerang, and Bekasi, because PT. KAI want to modernize the station and run the master plan on train, which consist of the development of railways until Soekarno Hatta Airport. The majority of victims are vendors, home eviction only occurred in Duri Postal Station.

The merchants and residents have previously complained about eviction plans to various agencies eviction, and obtained a variety of solutions. The Jakarta Provincial Government has called PT. KAI and urged them to avoid the eviction. The Governor will help the victims to relocate or preparing alternative solution, but did not heeded by PT. KAI. In addition, the National Human Rights Commission (Komnas HAM) urged several times to PT. KAI to conduct dialogue and avoid force eviction. Before force eviction, the victims filled law suit against PT. KAI to avoid eviction, but PT. KAI did not respect the legal process.

On May 27, 2013, the eviction began in 9:00 AM, carried out by about 300 Security Officers (PKD) and employees of PT. KAI. Under Indonesian law, they are not the competent authority to carry out the eviction, but only the court and the Provincial Government. Eviction by unauthorized parties is certainly an act against the law and can be classified as a criminal damage to property.[9] However, the police officers act as a security in the eviction; as many as 700 police officers were deployed to secure the eviction by PT. KAI.

Until now, evictees (18 children, 41 adult males, and 45 adult females) are still living in the park, not far away from the location of forced eviction, using a makeshift tent.

3) Papanggo Case

On August 24, 2008, 347 families force evicted from their homes in Papanggo Ujung, RT 010/RW 08 Papanggo, Tanjung Priok, and North of Jakarta. Evictions carried out in conjunction with the eviction of the building located in BMW Park. Shortly after the eviction of the building in BMW Park, Satpol PP (Public Order Officers) continued eviction to the Papanggo Ujung, in fact the evictees did not get any warrant or notification from the local government. There was no genuine consultation with those affected, alternative solution, no proper identification for all persons carried out the eviction, there was no legal remedies provided by the local government.

After forced eviction, the local government did not take any responsibilities to the evictees. The evictees also lost their job, their property, and the children lost their school supplies.

The Evictees filled class action against Governor of DKI Jakarta, North of Jakarta Mayor, Head of Public Order Officer, Head of Tanjung Priok Subdistrict, and Head of Papanggo Village. In March 23, 2010, North Jakarta District Court rejected the class action. The evictees also failed in Higher Court, and now this force eviction case is still in the Supreme Court for cassation.

The local government said that they evicted the evictees because they want to make International Stadium and green open space. But until now, after 5 years of forced eviction, Papanggo Ujung and BMW Park are still neglected. Most of the evictees in Papanggo Ujung are still in the area, with poor condition, semi-permanent house, and poor access to water and sanitation.

 

4)   RECOMMENDATIONS

Based on the explanations above, LBH Jakarta would like to recommend Special Rapporteur on Adequate Housing Rights to push the Indonesia Government and Legislative to:

  1. Respect their citizen right to adequate housing, avoid forced evictions, give alternative solution to the evictees, and protect the citizen from the interest of companies.
  2. Give citizen a big opportunity to participate in planning their space and their land.
  3. Remove the provision that criminalizes residents
  4. Change Government Regulation in Lieu of Law No. 51 Year 1960 on Prohibition of Land Usage without Permission from Eligible or Legal Authorized because it’s a tool to perform forced evictions.
  5. Make a particular regulation in accordance with General Comment 7: The right to adequate housing (art. 11.1 of the Covenant): forced evictions.

[1] The Jakarta Legal Aid Institute (LBH Jakarta) was established in 1970. LBH Jakarta defend and promote human rights through legal aid, including the right to adequate housing. LBH Jakarta working in the Greater of Jakarta Area (Jakarta, Bogor, Depok, Tangerang, Bekasi, and Karawang).

[2] LBH Jakarta 2012 Annual Report

[3] LBH Jakarta 2007-2012 Annual Report

[4] Ibid

[5] LBH Jakarta 2009 Annual Report

[6] PRP is “Peraturan Pemerintah Pengganti Undang-Undang” orGovernment Regulation in Lieu of Law. In Indonesia legal system, Government Regulation in Lieu of Law level with Law.

[7] Rumah Susun Hak Milik is low-cost apartment program.

[8] Letter C is land tax payment letter. In Indonesia it’s one of the instrument to prove the owning of a land, but it’s problematic, and not absolute to prove the owning of land like a certificate.

[9] Article 170 of Penal Code of Indonesia

(1) Persons who with united forces openly commit violence against persons or property, shall be punished by a maximum imprisonment of five years and six months. (2) The offenders shall be punished: 1st, by a maximum imprisonment of seven years, if he intentionally destroys property or of the violence committed by him results in a physical injury; 2nd-ly, by a maximum imprisonment of nine years, if said violence results in a serious physical injury;3rd-ly, by a maximum imprisonment of twelve years, if said violence results in death.