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 rebuildinga 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.
Indonesias 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 Indonesias 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 states 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 states obligations, because, by definition, they involve the states 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 ones 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 childrens 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 countrys 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 owners consent. Such circumstances might include: efforts by a government to use the land to promote the general publics 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 Development125 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.
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 sectionthat evictions are being carried out purely as a punitive measure to promote respect for the law among the urban poorare therefore wholly inconsistent with the norms of international human rights law.140
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 individuals 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 governments own housing and land policies may have contributed to an individuals 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.
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 Indonesias 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 mistrustbased on the legacy of past abuse of land acquisition regulationsthat 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
100 Human Rights Watch interview with Arif Wijayanto (not his real name), interviewed under the blue tarpaulin tent he had recently erected for shelter, January 14, 2006. Arif Wijayanto has been evicted from his home in Teluk Gong, on numerous occasions between November 13, 2001 and January 4, 2006.
101 U.N. Commission on Human Rights, Resolution 1993/77, para. 1; see also U.N. Sub-Commission on the Protection and Promotion of Human Rights, Resolution 1998/9 on Forced Evictions, E/CN.4/SUB.2/RES/1998/9 (Aug. 20, 1998).
102 Committee on Economic, Social, and Cultural Rights, General Comment 7, Art. 3.
103 To avoid the tautology, while still distinguishing evictions which are consistent with human rights law and those which are not, terms such as arbitrary evictions, illegal evictions and unfair evictions are sometimes used. However, the term unfair evictions has been criticized for being too subjective, while the phrase illegal evictions assumes that the relevant domestic legal protections exist, which is frequently not the case. See Office of the High Commissioner for Human Rights, Fact Sheet No.25, Forced Evictions and Human Rights, May 1996, available at http://www.ohchr.org/english/about/publications/docs/fs25.htm; and Committee on Economic and Social Rights, General Comment 7 The Right to Adequate Housing, 1997, Art. 3.
104 Human Rights Watch interview with Pramana Prihatin (not his real name), Pondok Kopi, January 12, 2006.
105 Constitution of the Republic of Indonesia, Art. 28H(1).
106 Undang-Undang No. 4/1992, Tentang Perumahan dan Permukiman (On Housing and Settlements), Art. 5.
107 International Covenant on Economic, Social and Cultural Rights (ICESCR), entered into force January 3, 1976. Indonesia ratified this treaty on February 23, 2006.
108 Article 11 (emphasis added).
109 Committee on Economic, Social and Cultural Rights, General Comment 3, The nature of States parties obligations (Art. 2, par.1), December 14, 1990, para. 10 (emphasis added). See also Government of Republic of South Africa and Others v. Grootboom and Others, Constitutional Court of South Africa, CCT 11/00, October 4, 2000.
110 Committee on Economic, Social and Cultural Rights, General Comment 4, The right to adequate housing.
111 ICCPR Art. 17. The Human Rights Committee, a body established by the ICCPR, has noted that the expression arbitrary interference can sometimes even extend to interference provided for under the law as the treatys use of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. U.N. Human Rights Committee, General Comment No. 16: The right to respect of privacy, family, home and correspondence, and protection of honor and reputation (Art. 17), April 8, 1988, para. 4.
112 Committee on Economic, Social, and Cultural Rights, General Comment 7 The right to adequate housing, para. 8. The Committee points out that enforcement of the law against arbitrary evictions is also an obligation under Article 17 of the ICCPR.
113 CESCR, General Comment 3, para. 9 notes: [A]ny deliberately retrogressive measures would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources. In The Social and Economic Rights Action Center for Economic and Social Rights v. Nigeria, Comm. No. 155/96 (2001), the African Commission on Human and Peoples Rights interpreting the African [Banjul] Charter on Human and Peoples Rights, noted: At a very minimum, the right to shelter obliges the government not to destroy the housing of its citizens and not to obstruct efforts by individuals or communities to rebuild lost homes. The States obligation to respect housing rights requires it, and thereby all of its organs and agents, to abstain from carrying out, sponsoring or tolerating any practice, policy or legal measure violating the integrity of the individual or infringing upon his or her freedom to use those material or other resources available to them in a way they find most appropriate to satisfy individual, family, household or community housing needs The right to shelter even goes further than a roof over ones head. It extends to embody the individuals right to be let alone and to live in peace- whether under a roof or not. (Para. 61).
114 ICCPR, Art. 12(1).
115 The Constitution of the Republic of Indonesia, Art. 28G(1), reads: Every person shall have the right to protection of his/herself, family, honor, dignity, and property, and shall have the right to feel secure against and receive protection from the threat of fear to do or not do something that is a human right. International human rights standards require all officers of the law to protect the civilian population against illegal acts and to respect and protect human dignity and maintain and uphold the human rights of all persons. Law enforcement officials may only use force when strictly necessary and only to the extent required for the performance of their duty. While the police and public order officials may use force as is reasonable and in accordance with a principle of proportionality for the prevention of a crime or in carrying out the lawful arrest of suspected offenders, no force going beyond that may be used. United Nations Code of Conduct for Law Enforcement Officials, General Assembly Resolution 34/169, arts. 1-3, and commentaries.
116 ICCPR, Arts. 19(2), 21, and 22. The Constitution of the Republic of Indonesia, Art. 28E(3) reads: Every person shall have the right to the freedom to associate, to assemble and to express opinions.
117 Committee on Economic, Social, and Cultural Rights, General Comment 7, para. 16.
118 The full details of these procedural rights are outlined in Committee on Economic, Social, and Cultural Rights, General Comments 4 and 7.
119 Real property is a legal term referring to land and anything growing on, attached to, or erected on land that cannot be removed without damaging the land. It can include material, tangible items, such as buildings or soil, as well as intangible ownership or use rights attached to the land.
120 Committee on Economic, Social, and Cultural Rights, General Comment 7, para. 13.
121 United Nations Commission on Human Rights, Resolution 1993/77: Forced Evictions, March 10, 1993.
122 Special Rapporteur on Adequate Housing, Basic Principles and Guidelines on Development-Based Evictions and Displacement, E/CN.4/2006/41, March 14, 2006, para. 61.
123 Committee on Economic, Social, and Cultural Rights, General Comment 4, para. 18.
124 See e.g. Office of the High Commissioner for Human Rights, Fact Sheet No.25, Forced Evictions and Human Rights, May 1996, available at http://www.ohchr.org/english/about/publications/docs/fs25.htm.
125 Perpres no. 69/1996.
126 Perda no.6/1999, Chapter 7, Art. 79.
127 Email message from Taufik Basari, an Indonesian lawyer with LBH-Jakarta, to Human Rights Watch, July 9, 2006; email message from a lawyer with the Urban Poor Consortium, to Human Rights Watch, July 21, 2006; email message from a lawyer with FAKTA, to Human Rights Watch, July 27, 2006; email message from individual with the State Ministry of Housing, to Human Rights Watch, July 7, 2006.
128 Human Rights Watch interview with H. Amidhan, Chairperson of Sub-commission on Economic, Social, and Cultural Rights, Komnas HAM (Komisi Nasional Hak Asasi Manusia; National Commission on Human Rights) January 13, 2006.
129 Perpres 65/2006, art. 15.
130 Governor Sutiyoso speech to House of Representatives Commission II for home affairs, quoted in Evi Mariani, House Hearing with Governor Sutiyoso Turns Farcical, Jakarta Post, December 19, 2003.
131 Michael Leaf, Land Rights for Residential Development in Jakarta. Such a simple dichotomy is in fact unlikely throughout the developing world, see Payne, Urban Land Tenure and Property Rights in Developing Countries.
132 Tommy Firman, New town development in Jakarta Metropolitan Region; Server, Corruption: A Major Problem for Urban Management.
133 World Bank, Cities in Transition, p. 34.
134 Human Rights Watch interview with representatives of FAKTA, January 9, 2006.
135 Damar Harsanto, Jakarta: An old city that goes nowhere, Jakarta Post, June 22, 2004; Try Harijono, Penggusuran dan Pembakaran Menjadi Ciri Khas Jakarta (Evictions and Arson Became Typical Jakarta Characteristics), Kompas, December 6, 2001.
136 Because the developers avoid having to build 60 percent of the total units as low-cost housing, they are then able to build more luxury and middle-income housing on the same tract of land. As these more elite types of homes tend to reap a higher profit margin than low-cost housing, the developer is therefore able to bid higher for the required location permits, thus excluding low-cost housing developers from the market.Even when developers do build with this ratio, the style of the low-cost housing may be so extravagant and thus comparatively expensive, that they are out of the range of the urban poor. Human Rights Watch interview with Nieke Masruchiyah, Human Rights Investigator, staff to commissioner on forced evictions, January 17, 2006; Ian Hamilton and Dr. Maria W. Sumardjono, Land Acquisition and Development Controls in Indonesia, National Development Planning Agency and National Land Agency (1998), p. 4:20; Tommy Firman, New town development in Jakarta Metropolitan Region; Hoek-Smit, Impementing Indonesias New Housing Policy; Harald Leisch, Structures and Functions of Private New Towns in Jabotabek, in Peter J. M. Nas (ed.), The Indonesian Town Revisited (Singapore: Institute of Southeast Asian Studies, 2002), pp. 89-100.
137 Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, E/CN.4/2005/48, March 3, 2005.
139 Michael Leaf, Land Rights for Residential Development in Jakarta.
140 Committee on Economic, Social, and Cultural Rights, General Comment 7, para. 12.
141 Perda No. 11/1998, Art. 27.
142 ICCPR Article 12(1) reads: Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. ICCPR Article 12(3) reads: The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
143 Human Rights Committee, General Comment 27: Freedom of movement (art. 12), U.N. Doc. ccPR/C/21/Rev.1/Add.9 (1999).
144 See e.g. Government of Republic of South Africa and Others v. Grootboom and Others, Constitutional Court of South Africa, CCT 11/00, October 4, 2000; and The Social and Economic Rights Action Center for Economic and Social Rights v. Nigeria, African Commission on Human Rights, Comm. No. 155/96 (2001).
145 Human Rights Watch interview with A. Patra M. Zen, Vice Chairperson, Yayasan Lembaga Bantuan Hukum Indonesia (YLBHI; Indonesian Legal Aid Service Foundation), January 12, 2006.
146 Human Rights Watch interview with representatives of FAKTA, January 9, 2006; 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; Human Rights Watch interview with A. Patra M. Zen, Vice Chairperson, YLBHI, January 12, 2006; Human Rights Watch interview with representatives from the Urban Poor Consortium, January 17, 2006.