IV. Insecure Land Tenure
From the legal perspective, [the evictees] don’t have rights, so they have to move.
—Jornal Effendi Siahaan, Deputy Head of Department for Public Order and Community Protection 54
Secure land tenure55 gives residents clear legal rights against either the government or private entities who make competing claims on the land. When evictions occur, clear rights to the land place residents in a stronger position to negotiate agreeable quit terms and adequate compensation. Indonesia’s current policies and legal regime for regulating land ownership and land use, however, offer only minimal security to many users, thus increasing their vulnerability to forced evictions. Almost all of the evicted residents interviewed by Human Rights Watch lacked land certificates to indicate that they had rights over their land. However, this situation is true for the vast majority of poor residents in Jakarta, and for people in Indonesia as a whole.56
International human rights bodies have expressed the view that secure tenure is a legal entitlement for individuals arising from the right to adequate housing. The United Nations’ Committee on Economic, Social, and Cultural Rights (CESCR), has called on governments to provide the greatest possible security of tenure to occupiers of houses and land, but stressed that notwithstanding the type of tenure all persons should possess a degree of security that guarantees legal protection against forced eviction, harassment, and other threats.57
Secure tenure does not necessarily require full legal title or complete registration.58 Instead, it is the perception of secure tenure by residents, creditors, and the government that is important.59 For example, the United Nations Human Settlements Program (UN-HABITAT), recommends that governments survey extra-legal settlements and identify those that will be required for strategic public purposes during a certain time period, or which are in areas subject to environmental hazards.60 The government should then grant all other extra-legal settlements some medium-term form of tenure with increased rights but not necessarily full title.61 However, indirect means of generating the necessary sense of security depend upon the confidence that residents have in continued government support for their tenure. Forced evictions destroy all perceptions of security, not only in the directly affected communities, but also for inhabitants in other informal settlements. 62
Sources of Insecurity
The insecurity of tenure in Jakarta is a product of several factors: flaws in Indonesia’s legal regime for administering land; poor administration by government agencies; corruption by some officials and developers; a lack of transparency by government agencies; and pervasive government violations of the rights of the urban poor.
Indonesia’s legal system employs more than 2000 pieces of legislation, regulation, and directives, on land use.63 The vast majority of these are outdated and overly complex, and many are inconsistent and contradictory.64 Sometimes there are numerous conflicting claims over the same piece of land. According to one study, 65 percent of administrative court cases involve land disputes.65 Litigation of land disputes is time consuming and often prohibitively expensive for the poor. Although a number of projects over the last few years, supported by both domestic actors and international donors, have proposed a variety of reforms to the Basic Agrarian Law of 1960 (Undang-Undang Pokok Agraria; UUPA) that still controls land law issues in Indonesia, no reform has yet been instigated.
Under the current land system, only 1 percent of the land in Indonesia is held in the form of tenure known as Hak Milik that is most closely equivalent to freehold ownership.66 Instead, almost all land is held in other forms of tenure, which are defined by the kind of use that is permissible for that piece of land. If the holders of the title do not conform to those restrictions, they risk forfeiture of the title to the government. The granting of any of the formal forms of title by the government is also discretionary and no tenure form is available as of right. This ability of the government to revoke even formal forms of tenure creates a dynamic between the state and land users that facilitates corruption, political patronage, and the exploitation of land users.67
Administrative problems that lead to insecure tenure include slow progress in registration,68 fees that are prohibitively costly for the urban poor, and inadequate administrative and technical skills within the relevant government agencies. A study in 2000 noted that the land registration process in Jakarta involves seventeen steps, eighteen different agencies, and an average of two to three years to complete.69 There are over 80 million land parcels in Indonesia, of which only 17 million are currently registered.70 At the current rate of registration of 2.5 million parcels every five years, it would take another 125 years to register and provide land certificates for all land in the country. Not only is the cost of the process, in the view of the World Bank, “simply too high”71 for the urban poor, it may also require the paying of bribes to officials.72 The cost of registering land includes not only the basic fees paid to the National Land Agency, but also the costs of obtaining permits for any building construction, of using only permitted construction materials, of building to standardized densities and space requirements, and of maintaining only proper residential activities in a zoned residential area.73 All of these requirements have significant costs. These costs are sufficient to exclude large portions of Jakarta’s population from the official registration system.
The agencies that deal with land administration, including the National Land Agency, the National Coordinating Agency for Surveying and Mapping, the Ministry of Agriculture, and the Ministry of Forestry have been criticized as being notoriously fragmented and overlapping, and for performing land registrations largely for their own interests.74 Moreover, each of these government agencies has branches at both the national and the provincial level, increasing the overlapping web of responsibilities and dispersing activities to individuals with less training and skills.
Finding out who has rights over a piece of land is also a difficult enterprise because of the low level of official registration, lack of transparency, and low levels of competency within the responsible government agencies. An NGO advocate described trying to identify who genuinely had rights over a site threatened with evictions:
First they said that it was the developer’s land. And we did some investigation, but the company could not prove that they had any certificates on the land….The National Land Agency of West Jakarta didn’t give us any information about the land. [They didn’t tell us] who owned it. I went to them, I gave them an official letter from [my organization] and I explained that I wanted to find out about the land. It was like ping-pong—“Go to this division,” and when I went to that division, they said “Go to another division, and then another.” After three weeks I gave up.75
The current land administrative system has also allowed thousands of fake and conflicting land titles to circulate.76 An advocate who worked for residents evicted from a site at Jembatan Besi, West Jakarta, explained the contradictory and complicated situation for that particular site: “There were overlapping certificates on the land, so they didn’t know which one was real. More than twenty-five certificates. There was no legal basis that could prove that the land belonged to one certain person….The problem is the National Land Agency, because as you can see there were far too many certificates.”77
In some instances, corruption allows developers not only to acquire land and development permits when their plans do not conform to the spatial plan or zoning regulations, but also to acquire land without the knowledge of the residents actually living on the land.78 As the head of a Jakarta-based legal policy center put it:
The bureaucracy here is corrupt, so people who can’t get access can’t access their rights….There are people who stay on land for maybe ten years, but then they go to the land office to try and get a certificate, but it’s a real problem. You would have to bribe. And even worse, somebody who can pay a lot of money to the office, they can then get the certificate, and then they get the land. It’s a problem of corruption in the office, and also the land registration system.79
Even though Indonesian law formally allows individuals who reside on non-state land for more than thirty years to convert their occupation into full ownership, this right is difficult to access because 99 percent of land in Indonesia is considered state-land80 and is therefore ineligible for this legal provision. In the rare chance that the plot is not considered state land, strict requirements of proof of occupancy and an expensive process still make this an unlikely option for the urban poor.81
Acquiring Tenure
Although a few evictees Human Rights Watch interviewed would express that they considered themselves to be illegal occupiers of land, most residents we met with believed that they had secured some form of tenure over the land from which they were evicted. Evictees often had good reason for this belief, such as having regularly paid local officials for permission to live at their sites, living on the same site for decades with no contestation from public or private entities, receiving a variety of government-provided services such as electricity and telephone lines, paying government land taxes, or having been advised by the government to use idle land during periods of economic crisis—such as by Governor Sutiyoso’s own 1998 decree.82
By failing to provide these communities with practical and accessible mechanisms to regularize their tenancy the government essentially is able to have it both ways. Prior to the evictions, state companies receive payments for utilities; local officials receive payments to allow a settlement to exist; and local officials establish a patronage system with the local community in exchange for their ongoing largess.83 All the while, however, residents live in a state of perpetual insecurity and fear that their tenure may not be as secure as they hope—even those who have worked hard to establish clear rights probably have violated some regulation—and that they may end up evicted. While officials profit from their presence, substantial portions of Jakarta’s urban poor live under constant fear they will lose their housing and be left literally on the street.84
Many residents interviewed by Human Rights Watch held various forms of proof of their rights to the land, such as receipts for the payments that they made for their land. Susi Setyowati described her situation: “I only had a copy [of the paperwork for my land], not an original, because I bought the land, not as one whole piece, just gradually, bought fifty square meters, and then bought more. So, I had no land certificate, but I did have the proof of transactions.”85
Other individuals interviewed by Human Rights Watch had gained a claim to tenure by moving onto previously unoccupied swamp or coastal land and working to reclaim the land. A resident from Cakung Cilincing told us how his community had worked to improve the land: “It was a swamp area before but we cleared the land and then built houses.”86 Residents from Pondok Kopi also converted a swamp into solid land, and fishermen at Ancol Timur created dry land from the sea to build.
Many residents we interviewed had paid previous owners or original community members who had established the area and then subdivided the site. Because conveyancing formalities are expensive, informal conveyancing of unregistered titles is common and accepted.87 Agus Adil recounted how seven years ago: “We bought the land from the community here. We were given receipts, but I think that was all.”88
Many residents had paid money to local officials for the right to live on the land. Kersen Saptono, a former resident of Cakung Cilincing evicted from the land he had lived on for thirteen years because the mayor now claims that the land is owned by a group of private businessmen, recounted to us: “I bought the land from the [the local neighborhood official]. I got a garap [right to use]letter. I built my house myself.”89
Members of a community living under a railway flyover at Cikini also told us about how they paid their local neighborhood official. Soleh Atmaji explained:
Before the eviction, we were paying Rp. 10,000 (US$1) per month per house to the [local neighborhood official]. Now we don’t pay anything. I’m not brave enough to pay it anymore because we might get evicted again. Before, we were paying it because we thought it guaranteed us not to get evicted from here, but that didn’t happen. The [local neighborhood official] said that “If you pay me, if there are any problems, I will solve them for you.” But when we got evicted, he didn’t do anything, he didn’t want to. At the time of the eviction he said “It’s not my job.”90
Testimony from Sinta Suryana demonstrates a problem whereby residents may have occupied land for decades but still have not had their land registered:
I don’t have a land certificate, but my mother has been staying here since 1960. Before, a long time ago already, they wanted to make certificates for the area, but the people who lived here, some understood, and others did not. Maybe the young people understood, but the older residents didn’t understand. The [local neighborhood official] didn’t want to sign to register the land. This was about 1990.91
Even in the most informal settlements visited by Human Rights Watch, there had almost always been some form of acknowledgment from the government that the residents had some entitlement to use the land, because the government did not attempt to remove them from the land for many years. Because the local government does not enforce national and local regulations, both local residents and officials begin to accept the residents’ tenure as being de facto legitimate, even though it may not be in full conformity with all existing regulations. Government agencies can further compound this perception of de facto legitimate status by taking affirmative actions that support the existence of the communities, such as issuing Jakarta identification cards, providing government services, developing related infrastructure, and collecting taxes.92
Residents at all but two of the eviction sites investigated by Human Rights Watch had electricity supplied by the state electricity company, Perusahaan Listrik Negara (PLN). Praman Prihanti described the situation in his community at Pondok Kopi prior to their eviction: “I had electricity in the old place for seven years. From PLN. We paid for it. The bill was under my name. Each household paid for themselves. Some people had telephones; I didn’t.”93 Sofian Tjahjadi explained the process by which he acquired electricity from the government: “I registered with PLN almost five years ago. I had to give them my ID card and the address here. It took one week after registration to get a meter….We pay every month. It’s controlled by PLN.”94
Some evicted residents had also received municipal water and land line telephones. As Agus Adil recalled: “I had been living here for seven years before the eviction. Everything was complete. I had electricity, telephone; it was all in our name.”95
Many residents also claimed to have paid land taxes (Pajak Bumi dan Bangunan, PBB) to the government on a regular basis. For example, Budi Santoso told us: “We had electricity and water and we paid for it. We also paid land tax to the government. We’ve been paying it for a long time.”96
A representative of an NGO that has worked with evicted communities for many years framed the problem this way: “The state doesn’t stop people building on the land. It’s not just one person, but hundreds of people. And every year they use water and electricity, that they pay for each month. And they’re paying each month to the government. And then suddenly [the government people] come and say that they want the land.”97 This leads to an incongruous situation whereby the government will charge and accept land taxes and utilities payments, but, according to Indonesian legal expert Bivitri Sustanti “Even if you have paid the PBB [Pajak Bumi dan Bangunan, the land tax]…it cannot be seen as proof to rights over the land.”98 One NGO advocate wanted to ask the government: “Why did you provide electricity to their village? Why did you provide a small health clinic there? …It’s so ambiguous. You provide these services for all these years, and then all of a sudden you say they are illegal? I’m just questioning the logic of the government.”99
Many urban villages are constructed from simple building materials. There was, however, a great variety in the physical characteristics of evicted neighborhoods visited by Human Rights Watch, from slums made from salvaged wood and plastic, to neighborhoods dominated by permanent concrete and plaster structures.
Photo 2: The community at Pisangan Timur contained permanent housing built of brick, concrete, and plaster. (c) 2006 Bede Sheppard/Human Rights Watch
Photo 3: The homes in the community on Cakung Cilincing Road were made of less sturdy materials, such as wood and corrugated metal, as seen in this photo from the day of the community’s eviction. (c) 2005 LBH-Jakarta.
54 Human Rights Watch interview with Jornal Effendi Siahaan, Deputy Head of Department for Public Order and Community Protection, January 26, 2006.
55 “Land tenure” is the mode by which land is held or owned, or the set of relationships among people concerning the use of land. See Geoffrey Payne, Urban Land Tenure and Property Rights in Developing Countries (London : Intermediate Technology Publications : Overseas Development Administration, 1997), p. 3.
56 World Bank, “Cities in Transition,” p. 34.
57 Committee on Economic, Social, and Cultural Rights, General Comment 4, para. 8; Committee on Economic, Social, and Cultural Rights, General Comment 7. The United Nations’ Commission on Human Rights has also urged governments to confer legal security of tenure on all persons threatened with forced eviction; United Nations Commission on Human Rights, Resolution 1993/77: Forced Evictions, March 10, 1993, Art. 3.
58 In fact, immediately formalizing land tenure may have negative effects on poorer residents, as it can lead to the purchasing of the land of poorer citizens by middle- and high-income earners (a phenomenon known as “down raiding”).
59 Michael Leaf, “Legal Authority in an Extralegal Setting: The Case of Land Rights in Jakarta, Indonesia,” Journal of Planning Education and Research, vol. 14 (1994), pp. 12-18; Payne, Urban Land Tenure and Property Rights in Developing Countries.
60 Residents in all such settlements should be prioritized for relocation to sites that offer access to existing livelihood activities and services.
61 UN-HABITAT, Urban Land for All (Nairobi: UN-HABITAT, 2004).
62 Payne, Urban Land Tenure and Property Rights in Developing Countries.
63 Jude Wallace, Dr. A. P. Parlindungan, Arie S. Hutagalung, “Indonesian Land Law and Tenures—Issues in Land Rights,” National Development Planning Agency and National Land Agency Land Administration Project, Part C (1999), p. 1:3.
64 Tommy Firman, “Major issues in Indonesia’s urban land development.”
65 Wallace, Parlindungan, and Hutagalung, “Indonesian Land Law and Tenures,” p. 1:12.
66 Ibid, p. 3:17.
67 Ibid, p. 3:22.
68 The 1960 Basic Agrarian Law instituted a major reform in the country’s land law system by creating a completely new series of land rights that had to be registered with the newly created National Land Agency in order to obtain a land certificate proving the right holder’s claim.
69 Dr. Mohammad Zaman, “International Comparative Review: Displacement of People and Resettlement,” National Development Planning Agency and National Land Agency (2000), p. 25.
70 World Bank, “Land Policy, Management and Administration,” World Bank Policy Brief, January 2005.
71 World Bank, “Cities in Transition.”
72 Human Rights Watch interview with Bivitri Susanti, Executive Director, Pusat Studi Hukum & Kebijakan Indonesia (PSHK; Centre for Indonesian Law and Policy Studies), interviewed January 12, 2006; O.B. Server, “Corruption: A Major Problem for Urban Management, Some Evidence from Indonesia,” Habitat International, vol.1 (1996), 23-41.
73 Michael Leaf, “Land Rights for Residential Development in Jakarta, Indonesia: the Colonial Roots of Contemporary Urban Dualism”, International Journal of Urban and Regional Research, vol. 17 (1993), pp. 477-491.
74 See e.g., Tommy Firman, “Major issues in Indonesia’s urban land development;” Bambang Susantono, “Transportation and Land Use Dynamics in Metropolitan Jakarta,” Berkeley Planning Journal, vol. 12 (1998), pp. 126-144.
75 Human Rights Watch interview with Yasmin Purba, former advocate at Berantas, who worked on Jembatan Besi eviction case, January 16, 2006.
76 Server, “Corruption: A Major Problem for Urban Management, Some Evidence from Indonesia.”
77 Human Rights Watch interview with representative from Perhimpunan Bantuan Hukum Dan Hak Asasi Manusia Indonesia (PBHI; Indonesian Legal Aid and Human Rights Association), who worked on Tanjung Duren eviction case, January 25, 2006.
78 Winayanti and Lang, “Provision of urban services in an informal settlement;” see also Susantono, “Transportation and Land Use Dynamics in Metropolitan Jakarta.”
79 Human Rights Watch interview with Bivitri Susanti, Executive Director, Pusat Studi Hukum & Kebijakan Indonesia (PSHK; Centre for Indonesian Law and Policy Studies), interviewed January 12, 2006.
80 The National Land Agency defines land as state-land (tanah negara) if it is not held under full-ownership (hak milik) and is not claimed by anyone else. Only 1 percent of Indonesian land has been registered as hak milik. See H. J. B. Rooseboom and Ir. Nugroho S. Semedi, “Displacement of People and Resettlement—Indonesia Context,” National Development Planning Agency and National Land Agency (2000), p. 3.
81 Human Rights Watch interview with representative from Perhimpunan Bantuan Hukum Dan Hak Asasi Manusia Indonesia (PBHI; Indonesian Legal Aid and Human Rights Association), who worked on Tanjung Duren eviction case, January 25, 2006.
82 SK Gubernur No. 184/1998, Tentang Pemanfaatan Lahan Milik untuk bercocok tanam di DKI Jakarta. See also ELSAM, Briefing Paper: Situation of Human Rights in Indonesia, January 2004.
83 Geoffrey Payne, Urban Land Tenure and Property Rights in Developing Countries.
84 See Michael Leaf, “Legal Authority in an Extralegal Setting: The Case of Land Rights in Jakarta, Indonesia,” Journal of Planning Education and Research, vol. 14 (1994), pp. 12-18.
85 Human Rights Watch interview with Susi Setyowati (not her real name), a forty-nine-year-old who runs a small food stall, interviewed at work on January 26, 2006. Susi Setyowati’s home in Kapuk Muara was destroyed on July 28, 2003.
86 Human Rights Watch interview with Kersen Saptono (not his real name), a thirty-five-year-old salvager of second-hand materials, interviewed across the road from his demolished home, January 8, 2006. Kersen Saptono’s home in Cakung Cilincing was destroyed on September 15, 2005.
87 Wallace, Parlindungan, and Hutagalung, “Indonesian Land Law and Tenures,” p. 1:12.
88 Human Rights Watch interview with Agus Adil (not his real name), a forty-eight-year-old who sometimes scavenges for second-hand goods, and sometimes sells clothes. He was interviewed in the rebuilt community of Pondok Kopi on January 11, 2006. Agus Adil’s home in Pondok Kopi was destroyed on October 29, 2001. His neighbor, Pramana Prihatin told us of his identical experiences; Human Rights Watch interview with Pramana Prihatin (not his real name), a forty-nine-year-old salvager of second-hand materials, interviewed in the Pondok Kopi on January 12, 2006. Pramana Prihatin’s home was also destroyed on October 29, 2001.
89 Human Rights Watch interview with Kersen Saptono (not his real name), a thirty-five-year-old salvager of second-hand materials, interviewed across the road from his demolished home, January 8, 2006. Kersen Saptono’s home in Cakung Cilincing was destroyed on September 15, 2005.
90 Human Rights Watch interview with Soleh Atmaji (not his real name), a thirty-year-old unemployed man, interviewed under the railway tracks flyover where he still lives, on January 9, 2006. Soleh Atmaji’s home in the same place under the railway tracks flyover in Cikini was destroyed on March 12, 2005.
91 Human Rights Watch interview with Sinta Suryana (not his real name), a thirty-three-year-old, who used to run seven rental houses until they were all demolished during the eviction at Pisangan Timur on January 3, 2006.
92 See also Leaf, “Land Rights for Residential Development in Jakarta;” Leaf, “Legal Authority in an Extralegal Setting;” Daniel J. Carr, “Expective Land Rights, House Consolidation, and Cemetery Squatting: Some Perspectives from Central Java,” World Development, vol. 24 (1996), pp. 1925-1933.
93 Human Rights Watch interview with Pramana Prihatin (not his real name), Pondok Kopi, January 12, 2006.
94 Human Rights Watch interview with Sofian Tjahjadi (not his real name), Cikini, January 9, 2006.
95 Human Rights Watch interview with Agus Adil (not his real name), Pondok Kopi, January 11, 2006.
96 Human Rights Watch interview with Budi Santoso (not his real name), a tailor in his forties, interviewed besides the ruins of his community, on January 7, 2006. Budi Santoso’s home in Pisangan Timur was destroyed on January 3, 2006.
97 Human Rights Watch interview with representatives of FAKTA, January 9, 2006.
98 Human Rights Watch interview with Bivitri Susanti, Executive Director, Pusat Studi Hukum & Kebijakan Indonesia (PSHK; Centre for Indonesian Law and Policy Studies), interviewed January 12, 2006.
99 Human Rights Watch interview with Yasmin Purba, former advocate at Berantas, who worked on Jembatan Besi eviction case, January 16, 2006.