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V. What is a “Forced Eviction”?

They burned down houses using petrol. It was [public order officials] and police and military. At around 10 a.m., they arrived over there. They were burning homes. They arrived at this location around 11 a.m.…They were using water bottles with petrol inside them. They were splashing them. They came from behind and in front. We wanted to move our things, but they said we could not get our things because they were worried people would get hurt from the burning. After they poured the petrol they straight away set it alight so we couldn’t go get our things. We only had enough time to get what was important. Everything else was left behind.

—Arij Wiyano, a forty-three-year-old laborer¹⁰⁰

Forced evictions violate fundamental human rights contrary to international law. In its “Resolution on Forced Evictions,” the U.N. Commission on Human Rights affirmed that forced evictions constitute a “gross violation of human rights.”¹⁰¹ The term “forced eviction” is defined for the purposes of international law as “the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”¹⁰²

It is important to note that international standards focus on protecting individuals who occupy homes and land and do not depend on any particular form of ownership title to the land or house, nor on the legality of the occupancy. Although all evictions could be considered inherently involuntary or forced in some manner, the term “forced evictions” is a discrete term under international law that refers to evictions that are arbitrary or that fail to comply with international human rights standards or domestic laws.¹⁰³ Therefore, evictions which occur without physical force or violence may nevertheless constitute “forced evictions” if the taking of the land is unjustifiable, or the procedure fails to include adequate consultation, compensation, and notification. Indeed, Human Rights Watch learned of residents of a community in East Jakarta who saw the violence and destruction involved in the forced eviction of a nearby community and, having been warned that their community would be next, decided to demolish their own homes in the hopes of better preserving their building material for rebuilding—a circumstance that would also qualify as a forced eviction.¹⁰⁴ Conversely, the prohibition on forced evictions does not apply to evictions carried out against the will of the occupant yet conducted in accordance with the law, including international human rights treaties and customary law, with appropriate legal remedies available to those affected.

Legal Standards

Indonesia’s Constitution guarantees that “[e]very person shall have the right to live in physical and spiritual prosperity, to have a home and to enjoy a good and healthy environment.”¹⁰⁵ Indonesia’s Law on Housing and Settlement further states that “[e]very citizen has the right to occupy and/or enjoy and/or own a decent house in a healthy, safe, harmonious and orderly environment.”¹⁰⁶

As stated above, forced evictions have been recognized in international law as a gross violation of human rights irrespective of treaty obligations. However, Indonesia has also recently ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), which provides similar guarantees to those already existing under Indonesian law.¹⁰⁷ The ICESCR requires states to “recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.”¹⁰⁸ The United Nations body entrusted with authoritatively interpreting the ICESCR, the Committee on Economic Social, and Cultural Rights (CESCR), has stated its view that “a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant.”¹⁰⁹ The CESCR has also concluded that “forced evictions are prima facie incompatible with the requirements of the Covenant.”¹¹⁰

Indonesia has also recently ratified the International Covenant on Civil and Political Rights (ICCPR), which protects individuals from “arbitrary or unlawful interference with his privacy, family, home or correspondence,” and guarantees everyone the right to the protection of the law against such interference or attack.¹¹¹

A state party to the ICESCR is obliged to take steps “to the maximum of its available resources, with a view to achieving progressively the full realization” of the right to adequate housing. While the law contains this “available resources” caveat, it is largely irrelevant to the issue of forced evictions identified here, because fulfillment of the state’s obligation to refrain from arbitrary forced evictions is largely a negative one and does not depend on resources.  Nor does scarcity of resources excuse a country from ensuring that its laws are enforced against officials or third parties who carry out forced evictions.¹¹² In fact, forced evictions are a step backwards from a state’s obligations, because, by definition, they involve the state’s arbitrary destruction of resources that individuals and families have invested in building their homes.¹¹³

As the findings within this report demonstrate, forced evictions not only violate the right to adequate housing, but may also result in violations of other protected rights protected by both Indonesian and international law. For example, evictions infringe upon the rights to freedom of movement and the freedom to choose one’s place of residence.¹¹⁴ Violence and reckless destruction threaten the right to security of the person.¹¹⁵ The harassment and arrest of NGO activists who oppose forced evictions can violate the freedom of expression, assembly, and association.¹¹⁶ The disruption caused to children’s schooling can constitute a violation of the right to education.

Because forced evictions may infringe on such a large number of rights, appropriate procedural protections and due process are, in the views of the CESCR “especially pertinent.”¹¹⁷ Procedural protections that should be applied include: genuine consultation with those affected; adequate and reasonable notice of the date of eviction; timely information on the proposed evictions and the alternative purpose for which the land is to be used; proper identification of those carrying out the eviction; and the availability of legal remedies for those affected and access to legal aid.¹¹⁸

According to international human rights standards, it is the obligation of a country’s government to ensure that in instances of forced evictions “all the individuals concerned have a right to adequate compensation for any property, both personal and real,¹¹⁹ which is affected.”¹²⁰ Compensation must be made following “mutually satisfactory negotiations with the affected persons,”¹²¹ and women and men must be co-beneficiaries of all compensation packages.¹²²

International law does allow for governments, under “the most exceptional circumstances,”¹²³ to expropriate the land of private citizens even without the owner’s consent. Such circumstances might include: efforts by a government to use the land to promote the general public’s well-being; the case of persistent non-payment of rent without reasonable cause; racist or other discriminatory attacks or treatment by one tenant or resident against a neighbor; persistent antisocial behavior that threatens public health or safety; manifestly criminal behavior that threatens others; the illegal occupation of property inhabited at the time of the occupation; or the occupation of land or homes of occupied populations by nationals of an occupying power.¹²⁴ A distinction therefore exists between residents who are peacefully living in a particular place and those who have actively reneged on their legal or contractual duties towards fellow residents or citizens. Instances where the government makes claims justifying an eviction must be examined on a case-by-case basis, however, to determine the veracity of the claim and to examine whether the eviction complies with broader human rights law.

Notice and Compensation Requirements in Indonesia

The Central Government has issued a regulation on “Community Participation in Spatial Development”¹²⁵ elaborating that communities should play a pro-active role in the spatial planning process. However, the regulation does not clearly define how the community could participate, and what the role of the government would be in each phase. The City Bylaw on the Jakarta Spatial Plan states that all people have the right to know about the plans of a certain area, whether it is the spatial, technical or building plan.¹²⁶

Both the Jakarta administration and human rights NGOs accept that as a general principle of good governance, notification of an eviction should be provided in three separate letters, the final one arriving no later than seven days prior to the intended date of eviction.¹²⁷

When the Jakarta government does attempt to provide compensation, it has a policy of providing compensation either through money or substitute land.¹²⁸ When an eviction is carried out for the purpose of a public interest project, Indonesian law provides for compensation for the loss of land to be provided at either the market value or a value known as “NJOP” (Nilai Jual Obyek Pajak; Sale Value of Tax Object).¹²⁹ As will be discussed in greater detail in the chapter on compensation, these two values are not equal as NJOP values are almost uniformly lower than the market value. When an eviction is carried out because the occupier of the land did not have permission to build on the land, is considered a squatter on the land, or is violating public order regulations, then there is no entitlement to any compensation under Indonesian law. Such individuals could, however, file a civil case against the local administration for arbitrary material losses suffered during an eviction. Sometimes, these individuals do receive some money from the private developers or local government officials, but it presented as a gesture of charity rather than compensation.

Justifications for Evictions Offered by the Jakarta government

The local government of Jakarta generally justifies evictions under three broad headings: the housing or occupancy is “illegal,” the housing disrupts public order, or the land is required for the creation of a development project that will benefit the broader public interest.

“Illegal” Housing

These evictions are only to give the people a lesson to respect the law, as legal certainty is one of the major concerns of investors in the capital.

—Governor Sutiyoso¹³⁰

The government of Jakarta is quick to justify its eviction and destruction of communities of urban poor on the grounds that such settlements are “illegal” or “built without permission.” The status of community settlements in Jakarta, however, is rarely as clear cut as such labeling or the government suggests.¹³¹ The vast majority of homes in Jakarta, especially those of poor and lower middle-income residents may have questionable legal status, such as failing to comply with building codes, being built without permits, or existing in unplanned and unregulated settlements.¹³² Most Indonesians hold only customary rights to their land without any official registered title or certificate.¹³³ Yet, as illustrated in the previous chapter, many homes and settlements have also acquired legitimacy through practice and usage, generally with government complicity (see “Acquiring Tenure” on page 23).

Many people who occupy land in Jakarta do not enjoy the right of housing because such options simply do not exist or are unaffordable.¹³⁴ By labeling all such individuals or communities illegal, the government is placing responsibility for poor housing conditions on those individuals, ignoring the reality that informal slum and squatter settlements are in fact the product of failed government policies, poor governance, corruption, inappropriate and outdated regulation, dysfunctional land markets, and a lack of political will to find adequate solutions. It also ignores the historical reality of selective enforcement of housing policy and law at the expense of the poor. The administration turns a blind eye to the illegal conversion of houses into business premises by the rich. Shopping malls, gas stations, and luxury apartments are often permitted to be located near riverbanks, violating existing regulations, and to encroach into protected green areas.¹³⁵ Under housing development regulations in Jakarta, large-scale developers are obliged to build three units of middle class housing and six units of low-income housing for every one unit of exclusive housing, yet this regulation is routinely ignored and penalties for non-compliance are lenient and rarely enforced.¹³⁶

As Miloon Kothari, the United Nations Special Rapporteur for Adequate Housing, has noted, “While public policy provisions and legislation are important to promote the right to adequate housing, laws can also be applied in ways that result in the right to adequate housing being violated.”¹³⁷ The selective application of public order legislation and building codes for the purpose of carrying out evictions, though ostensibly based on law, can nonetheless run counter to international human rights obligations by exposing vulnerable populations to significant harm, including homelessness and further violation of their rights.¹³⁸ Once the government determines that specific social groups are living outside of the law the application of law can become unequal and arbitrary, as the state fails to provide protection to its citizens as a whole and instead serves only the needs of particular classes within society.¹³⁹ The sentiments expressed by the Governor of Jakarta, as quoted at the beginning of this section—that evictions are being carried out purely as a punitive measure to promote “respect for the law” among the urban poor—are therefore wholly inconsistent with the norms of international human rights law.¹⁴⁰

Public Order Regulations

Many evictions in Jakarta are carried out for the stated reason of protecting “public order,” using Jakarta Regulation (Perda) No. 11/1988, which prohibits individuals from living along riverbanks, under flyover bridges, or near railway tracks. Homeless and landless individuals who build shelters in these areas in order to provide for their own survival are liable to three to six months imprisonment or monetary fines.¹⁴¹

International law does allow governments to restrict individual’s freedom to choose their place of residence, but only when provided for by law and when necessary to protect public order.¹⁴² Any restrictions must also be consistent with other human rights obligations, and must also conform to the principle of proportionality.¹⁴³ Although the reason for an eviction may be legitimate and there may be an appropriate basis in law, the way in which the eviction is implemented, whether the procedure provides for compensation for damage caused, and the ultimate impact which the eviction would have on an individual may still render an eviction unlawful. Therefore, even when there is a legal basis for an eviction, the eviction will still be unlawful under international human rights law if local authorities have failed to assess the impact of the eviction on the affected individuals and determined whether there is an alternative means of achieving the public order goal which would cause less harm to the basic rights of the evicted individuals.

In making this assessment, local authorities should take into consideration the impact that the eviction will have on the individuals, such as whether the evictees will be left destitute, and whether the local authorities are willing and able to provide adequate assistance to residents so that they can find adequate housing and livelihoods at an alternate location that does not raise similar public order concerns.¹⁴⁴ The calculus should also take into account the degree to which failures in the government’s own housing and land policies may have contributed to an individual’s situation and lack of alternatives.

This report presents evidence that the effect of evictions on communities can be devastating as forced evictions frequently expose residents to further human rights violations, regularly place evictees in a poorer condition than prior to the eviction, and often do nothing more than move the problem to another area. In many instances a forced eviction, even on legal grounds, is therefore unlikely to be a proportionate action to protect broader public order interests, especially when the government does not carry out the eviction in conformity with the due process standards stipulated under international human rights standards, such as the provision of adequate compensation, consultation, and notification. In such instances, human rights law would require that local authorities not carry out evictions despite more minor public order concerns.

Land Acquisition in the Public Interest

This Presidential Regulation is more brutal than laws enacted by Soeharto. This is not to say that we agree with Soeharto, but that under [current President Susilo Bambang Yudhoyono], who tries to be very popular, he enacts an even worse law on land procurement.

—A. Patra M. Zen, Vice Chairperson, Indonesian Legal Foundation¹⁴⁵

In two of the incidents researched by Human Rights Watch for this report, the stated aim for the land being acquired through evictions was its intended use for the construction of government infrastructure projects: a railway track expansion known as the “Double-Double Track” project, and the East Flood Canal project. The Jakarta administration plans to increase investment in infrastructure projects over the next few years, and both the regional and national government appears to believe that a lack of clear procedures for acquiring land in a speedy manner is deterring international investors and companies from becoming involved in supporting such projects.

In May 2005, President Susilo Bambang Yudhoyono promulgated a Presidential Regulation (“Peraturan Presiden” in Indonesian, abbreviated as Perpres), on land acquisition for development projects in the public interest (Perpres 36/2005). The regulation was widely viewed as a conciliatory effort aimed at potential foreign investors in infrastructure projects. The new regulation met with broad opposition from Indonesia’s leading civil society groups and Indonesian human rights organizations, a coalition of whom have asked the Supreme Court to provide judicial review of the legislation. Behind much of the opposition to the regulation appeared to be a general mistrust—based on the legacy of past abuse of land acquisition regulations—that the government would misuse any new regulation to facilitate private developers taking land from people.

In June 2006, the President issued a further regulation (Perpres 65/2006), modifying elements of his original regulation supposedly in response to the criticisms voiced. However, the second regulation appears to have been produced with little consultation with relevant civil society organizations, and contains many of the elements of Perpres 36/2005 that civil society groups opposed, including:¹⁴⁶

• The members of the “Land Acquisition Committees,” which are entrusted with the responsibility of appraising the appropriate level of compensation to be given to land and building owners, are selected solely by government officials, and in the case of Jakarta, by the Governor of Jakarta. These committees are therefore not independent assessors or mediators.

• Compensation in some cases can still be based on the government’s valuation of the land for land tax purposes (known as “NJOP,” see above), an amount almost always less than the market value or replacement cost.

• If negotiations over compensation levels last more than 120 days (extended from 90 days in the original regulation), the government has the ability to nonetheless begin the construction of the project. Any compensation that has been offered by the government is then given to the local court to keep while an appeal is made to the courts. This system provides insufficient incentive for the government to negotiate in good-faith with the public, and experience suggests that officials and developers will use it to threaten residents that, if they do not accept the government’s proposal, they will be evicted in 120 days with no guarantee they will ever be compensated (the money will be deposited with the court, not delivered into their hands).