PSPD in English Int. Solidarity 2002-01-31 1615

Fact-Finding Mission on State Violence on the Poor in Indonesia

Report of the International Fact Finding Mission on State Violence Against the Poor in Jakarta (November 4-8, 2001)

Mission Background

Very intense and high-handed repression against the urban poor in Jakarta in the form of massive confiscations of their means of livelihood, arrests and detention of those who protest and the eviction/demolitions of their houses that started mid-August 2001 continues until today.

The authority of the metropolitan city has drawn up a detailed plan for the second semester of 2001, with the end of November 2001 as the deadline, to clean up Jakarta of the poor. The operation involves the mobilization of thousands of municipality guards, hundreds of policemen and soldiers armed with tear gas pistols, guns and rubber sticks, and the use of bulldozers, open trucks, vans and police cars.

Since August 2001 the confiscation of pedicabs, demolition of side-street food stalls, car wash services, arrests of street children and sidewalk vendors, street musicians and others who earn a living on the street, and forced evictions and arson in urban poor settlements have become a day to day occurrence. The operation often happens by midnight or early morning from 2:00 AM to 4:00 AM when people are asleep. The authority also uses ethnicity and religion to pit the poor against each other,for instance, Betawi (native Jakartans) versus non-Betawi, Muslims versus Christians, including the use of thugs to terrorize the poor. The vulnerable sections of the community such as women and children suffer most of the violations of their human rights in such situations.

To implement its plan to evict the poor, the authority of Jakarta used various local and national laws in the name of ‘public order’or ‘benefit for the public’such as Perda (Jakarta regulation) No.11/1988 on public order and Presidential Decree No.55/1993 on Providing Land for Development for the Public’s Benefit.

Jakarta Regulation No.11/1988 is a very powerful legal instrument: with it the local government prohibits the sale, production and use of pedicabs from Jakarta, confiscates poor people’s means to earn their living, evicts riverbank and slum communities and families, without the provision of alternative solutions. The law prohibits women sex workers and empowers the local authority to “sweep” them away from Jakarta. It contradicts Indonesian Criminal Law which does not prohibit sex workers.

On the other hand, Presidential Decree No.55/1993 under the pretext of public benefit has been exercised as the authority’s instrument to confiscate lands people have been occupying for years, to criminalize and to remove them without compensation.

Peoples’organizations, non-governmental organizations and other civil society organizations and activists and the poor victimized by Regulation No. 11/1988 have openly written and spoken against Regulation No. 11/1988, showing how the regulation has affected the poor badly. They lobbied with the Jakarta authority and local parliament to revoke the regulation, but the regional government opted not only to maintain but to use as well the highly repressive regulation.

It is clear that thousands of households have become victims of state violence. State violence against the poor means the government, both regional and national, either by commission or by omission, violated the people’s rights to housing, to live peacefully and to have their own jobs and other interrelated and connected human rights.

Violating poor people’s rights by commission means that the authorities intentionally used existing laws, such as Presidential Decree No. 55/1993 and Jakarta Regulation No. 11/1988 to confiscate the means of livelihood of the poor, to arrest them when they resisted or protested, and to evict/demolish their houses, without due process and compensation. The authorities also used such state apparatus as the military, police, municipal civilian guards and demolition crews, as well as prosecutors and judges to support its policies of evicting and eliminating the poor from the city.

State omission means that while the government has observed the frequent use of violence against the poor, it allows or tolerates it. The authority does not try to stop the violence against the poor. It pays no attention or give consideration to the demands and protests from the poor, activists and NGOs.

Having employed various moves to stop the state violence such as lobbying the governor and the president for a dialogue,rallies, use of the media, and others, urban poor organizations, NGOs and other civil society organizations conceived of holding an international fact finding mission to be composed of prominent individuals, known for their independence and fairmindedness and human rights record.

In late September 2001 Urban Poor Consortium and other Indonesian NGOs discussed with Asian Coalition for Housing Rights, specifically its Eviction Watch and Housing Rights program, on international assistance in connection with the upsurge of state violence against the poor in Jakarta. UPC and ACHR agreed to organize an international fact finding mission to be composed of prominent personalities in Indonesia and abroad.

ACHR informed the UN Special Rapporteur on the Right to Adequate Housing under the Office of the UN High Commissioner for Housing Rights about the housing rights violations taking place in Jakarta and the joint plan of ACHR and UPC to organize a fact finding mission. The UN Rapporteur said the OHCHR was aware of the worsening human rights situation in Jakarta and would be appreciative if OHCHR would receive a copy of the report of the fact finding mission.On the basis of the report, OHCHR could conduct its own mission.

Upon the invitation of UPC and ACHR the Indonesian National Commission on Violence against Women joined the fact finding mission with a particular interest on the impact of the confiscations and forced evictions on women and children.

Mission Objectives

The objectives of the fact finding mission are:

1. to verify information from various sectors in Jakarta,such as the urban poor and informal sector workers, NGOs, city and national government officials, academe,and others,on the on-going clean up drive of the city government and its consequences on the city, in particular to its marginalized sectors;

2. to look into the impacts of the confiscations and forced evictions on the urban poor, including a focus on women and children;

3. to engage NGOs, the urban poor and the victims themselves, other civil society organizations, donor agencies and the governments in an exchange of views and ideas on how to solve the problems the urban poor in Jakarta in the short and long terms.

4. to come out with a list of recommendations to be presented to the Jakarta and national government, civil society organizations and religious leaders in Jakarta;

5. to present to the public and the media the report of the fact finding mission.

Mission Composition

The fact finding mission is composed of:

* Won Soon Park, a veteran Korean human rights lawyer and executive director of a leading Korean NGO, Peoples Solidarity for Participatory Democracy

* Jesse Robredo, mayor of Naga City in southern Philippines which received in 1998 a UNCHS-DUBAI International Award for Best Practice and Year 2000 Ramon Magsaysay awardee

* Soetandyo Wignyosoebroto, member of the Indonesian National Commission on Human Rights and a renowned professor at the University of Airlangga, Surabaya, East Java

* Indonesia National Commission on Violence Against Women, a government but independent commission renowed for its work in the protection and defense of the rights of women, in particular women victims of violence.

Ms. Saparinah Sadli, professor of psychology, University of Indonesia and chair, National Commission on Violence Against Women, and

Ms. Mely G. Tan, Ph.D, a sociologist and research on urban problems,

Ms. Dewi Novrianti, who has a law degree and

Ms. Titiana Adinda, who works in communications, both staff members of the commission, would represent the Commission.

The mission members are known for their independence and fair mindedness. (Annex: Curriculum Vitae)

Mission Process

The mission members undertook the following activi-ties:

*They read written reports gathered from the field by UPC staff and from news clippings and articles, including videos on actual forced evictions and confiscations.

*They read and reviewed international treaties and other instruments from the Office of the High Commissioner for Human Rights.

*They talked with the victims themselves and visited an evicted community; they also visited pedicab drivers being detained at a police station who were arrested when the pedicab drivers held a protest demonstration at office of the mayor of Eastern Jakarta.

*They read and talked with law practitioners on the laws and regulations of Indonesia and Jakarta that are related to the issues, namely, the confiscations of the means of livelihood of the urban poor and forced evictions.

*They talked to members of civil society organizations and intellectuals.

*They visited and talked with representatives of the World Bank, the Asian Development Bank and members of the American delegation attending the 11th meeting of the Consultative Group on Indonesia.

*They visited and talked with national government officials such as the Minister for Human Settlements, the Minister for Women’s Empowerment, and the Minister of Manpower. Despite repeated follow ups, they were unable to talk to the regional governor who shunted them instead to the head of the city planning board.

*They talked to the media via a press conference, live talk shows and press interviews.

The mission took place from November 4 to 8 ( Annex: Mission Schedules)

Mission Findings:

From their readings, visits to and talks with the various sectors, the mission found that:

-Massive confiscations and evictions.Since 1999 the regional government of Jakarta conducted massive confiscation and destruction of the means of livelihood of the urban poor in the city.The data collected by UPC and other NGOs in Jakarta show that a total of 49,315 pedicab drivers, food vendors, and car wash providers lost their work between January to September 2001. At an average of three dependents, usually wife and two children, a total of 197,260 persons lost the means of living in the same period. In October 2001 the regional government reported to the media that it had confiscated 11,400 pedicabs, stored them in a warehouse and would dump them into the sea to serve as fish shelters.

From August 2001 until the meeting and pledging session of the Consultative Group on Indonesia in early November, and up to the writing of this report, the regional government has conducted massive forced evictions and demolitions resulting in the displacement of thousands of poor households. From January to October 2001, UPC monitored the eviction/demolition of 5,785 houses in Jakarta or 23,140 persons at the national average of four persons to a family. In the month of October alone a partial monitoring conducted by NGOs showed that some 2,470 families or 9,880 people were displaced either due to forced evictions or arson or a combination of both (Annex: Matrix).

According to the State Minister for Women Empowerment, already there are 1.2 million internally displaced persons in Indonesia. The displacements in Jakarta has meant more additions to the huge multitude of displaced persons in the country.

The regional government principally used Jakarta Regulation 11/1988 in the name of restoring and maintaining order in the city, implementing its flood control project, ensuring public security, improving traffic flow,stopping and discouraging migrants from coming to the city, and preventing crime.

According to the Indonesian State Minister of Manpower 65% of the workforce of Indonesia are found in the informal sector (the 1999 government figure is 56.88%). He rightly lamented that the actions of the Jakarta government certainly had worsened the employment situation in Jakarta, and productive means of livelihood were unnecessarily destroyed.

While notices were given to the families in communities to be demolished, there was no adequate consultation with the affected families to discuss the rationale of the evictions and alternative housing solutions.Many of the evicted families did not receive compensation and relocation, but were merely offered transportation assistance. Some evicted families received compensation but there no negotiations were conducted with the community and the compensation amount given was small compared to the properties lost and the destruction of social cohesion and life Not only houses were demolished but also mosques, churches, schools and other basic infrastructure and socio-economic facilities that were self-built by the people.

-Women and children. While peoples organizations and NGOs are still in the process of disaggregating data on how many women and children precisely suffered from the confiscations and forced evictions, a rough estimate and interviews with some women victims indicated the extent and depth of their suffering and pain. Many women lost their own livelihoods when they lost their houses which they used for tending a small store, sewing, making some delicacies,and others. Women were not spared in the violence that took place during confiscations and demolitions. For instance, in the case of Pondok Kopi ? of the 20 persons who were injured were women.

The government provided no relief assistance to the affected families whom they primarily considered as violators for squatting on government lands.Many children either stopped altogether from going to school because of financial difficulties of their families or were absent for days from their schools. Due to exposure to the elements, many children became sick. Many of them were traumatized by the violent demolitions.

-Violence. In many instances, the confiscations and forced evictions were conducted with force and violence.Hundreds, at times more than a thousand joint forces that include policemen, municipal guards and even military personnel, and even private militia were used in the operations. In several instances the security people fired teargas canisters and rubber bullets that wounded a number of poor people. Many poor people, including women and children, were beaten and injured.

In the case of the fisherfolk community in Ancol Timur, North Jakarta, for example, the eviction took place in the early morning hours when the men had gone to sea. The houses were burned down by the municipal guards. A woman six months pregnant was hit on the head twice. People who fled to the mosque were attacked. Needless to say, it was a traumatic experience for the women and especially for the children.The authority offered relocation scheme but the community members numbering 206 families refused it because it was far from the sea. At the moment they face problems of getting safe drinking water and sanitation. The children could not go to school because they lost all their school materials.

-Confrontations.The highly inadequate process (no consultation, no offer of alternatives) and harsh conduct of the government elicited in some instances violent reactions from the pedicab drivers, sidewalk vendors, the slumdwellers, and others. Violent confrontations took place that resulted in injuries to many urban poor people and government personnel. In one instance, a government personnel was killed. Teargas canisters were used, vehicles were overturned and burned. These confrontations were scenes of virtual warfare between the government and its citizens, caught live on television and the newspapers.

-No compensation or alternative housing.While the regional government says it has ten regional programs to address the needs of the urban poor of the city, it chose to use Jakarta Regulation No. 11/1988 to conduct massive confiscations and forced evictions in the name of making the city clean, preventing crime, ensuring public security and traffic, preventing and discouraging more migrants to move into the city from the provinces, and imposing order in the city. Regulation 11/1988 does not provide for alternative housing and/or compensation to those who would be affected from its implementation. Even so, the regional government’s housing solution in the form of apartments involves a monthly rent of Rp. 80,000 – 120,000 ($8 -$12), a princely sum for the urban poor in a city where the daily minimum wage is Rp.6,000 ($0.60).

-Concern.The mission views with deep concern the continuing forced evictions of urban poor dwellers from their long occupied settlements by the Jakarta local government.

While some of the goals of the evictions may be legitimate, the mission believes they should be pursued in a just, humane, participative and consensual manner. The mission maintains that the central and local governments should approach the issue more comprehensively, equally taking into account its goals and the needs of the urban poor dwellers. In this regard, the mission believes that the government has not fully exhausted all the possible solutions available, nor has it offered reasonable alternatives for the affected dwellers.

The mission deplores the violent and inhuman manner of eviction/demolition of houses and confiscation and destruction of the means of livelihoodc of the urban poor in the region of Jakarta.

The mission is appalled at the inadequacy of the process (no compensation, no consultation, no attempt to achieve consensus), the execution of orders in an inhuman way and the use of violent methods of removing poor people from their homes and workplaces.

-Adverse impact especially on women and children, in particular the girl child.The forced evictions, in particular in the case of fisherfolk community at Ancor Timur, exposed the women to direct violence, intimidation and terror, without recourse to any kind of help. In the temporary shelters, the women are in an unrelieved stressful situation, aggravated by their increased vulnerability to domestic violence. For the children, in particular the girl child, to experience this type of violence, is a terrible traumatic experience. Moreover, to be deprived of the opportunity to go to school is a direct violation of their right to education.

-Violations of domestic and international laws. The 1945 Constitution of the Republic of Indonesia states (Article 33)”The land, the waters and the natural riches contained therein shall be controlled by the State and exploited for the greatest benefit of the people” while the Basic Agrarian Law of Indonesia (Art. 6)declares: “All rights on land have social functions.” It is obvious that these laws have in mind the wellbeing of the large sections of the citizenry of Indonesia in the consideration of the greatest benefits from the use of the land. In the case of Jakarta, the urban poor constitutes 40% of the city’s population. They are part of the country’s informal sector comprising 65% of the country’s workforce who provide cheap but necessary services and products.

The regional and central governments also violated the Law on Real Estate and Residential Areas of Indonesia which states(Chapter III, art 5): “Every citizen has the right to occupy and/or enjoy and/or own a decent house in a healthy, safe, harmonious and orderly environment .”

The regional government of Jakarta, as part of the Indonesian State, violated customary international laws such as the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights. It also violated the International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Convention on the Rights of the Child (CRC), legally binding international treaties the government of Indonesia has ratified.

The Jakarta government confiscated and destroyed the pedicabs from the streets of Jakarta in all hours of the day, thereby violating the right to work of the pedicab drivers and to due process.Being the principal breadwinner of the family, the pedicab driver’s loss of his means of livelihood has jeopardized the right of his family to a living condition and the right of his children to education. The government entered the houses of the pedicab drivers to confiscate the pedicabs without the use of any warrant, thereby violating the right of the pedicab driver and his family to privacy, security in his house and to due process.

The Jakarta government has detained presently 15 pedicab drivers in connection with the pedicab drivers protest actions, thereby violating their right to expression.

The regional government and the central government, by its omission,violated international treaties such as the international Covention on the Elimination of All Forms of Discrimination Against Women that states (Article 14.2 (h)): “States Parties shall undertake all appropriate measures to eliminate discrimination against women…and shall ensure the right… To enjoy adequate living conditions, particularly in relation to housing. It also violated the international treaty Convention on the Rights of the Child that states (Art. 27.3): “States Parties in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in the case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.”

The UN Commission on Human Rights, in its March 10,1993 resolution, declared that “the practice of forced evictions constitutes a gross violation of human rights, in particular the right to adequate housing.”This declaration re-echoed Agenda 21 adopted by the United Nations Conference on Environment and Development in 1992 which states (Para 7.9) “People should be protected by law against unfair eviction from their homes or land.”This declaration has been re-echoed by numerous subsequent UN resolutions such as those issued by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities,the UN Committee on Economic, Social and Cultural Rights, and the UN Commission on Human Settlements.

The UN Office of the High Commissioner for Human Rights in its document The Right to Adequate Housing (pp. 17-19) says: “Various United Nations human rights bodies have confirmed that housing rights can be violated by Governments… to date, the United Nations has only considered violations of housing rights in the context of forced evictions either conducted or tolerated by the State… Other acts and omissions which could provoke concern regarding possible infringements of the right to adequate housing include, but are not limited to: acts of racial or other forms of discrimination in the housing sphere; demolition or destruction of housing as a punitive measure; failing to take “appropriate steps”…; failing to reform or repeal legislation inconsistent with the Covenant; or not ensuring to any significant number of individuals a basic minimum level of shelter or housing.”

The UN Secretary General in 1994 in his report to the Commission on the Status of Women,said that displacement and evictions should be avoided, since they particularly increase the vulnerability of women and children and because women bear the brunt of traumatized and dislocated communities.

Access and control over land, property and housing are determinative of women’s overall living conditions and are necessary to the development of sustainable human settlements in the world today. These entitlements are essential for women’s economic and physical security and to the struggle for equality in gender relations. According to Art.6.2. of the Convention on the Rights of the Child states that “states Parties shall ensure to the maximum extent possible the survival and development of the child,” to which children’s housing rights and living condition are integrally linked. These human rights are essential to their cognitive, physical, cultural, emotional and social development, particularly as children are disproportionately vulnerable to the negative effects of inadequate and insecure living conditions.

The document Forced Evictions and Human Rights issued by the Office of High Commissioner for Human Rights says: “while the right to adequate housing is perhaps the most obvious human right violated by forced evictions, a number of other rights are also affected. The rights to freedom of movement and to choose one’s residence…The right to security of the person…means little in practical terms when people are forcibly evicted with violence, bulldozers and intimidation?the right to life, to freedom of expression and to join organizations of one’s choice. cultural rights to information and popular participation. the right to education (for children in eviction situations), the right to work, the right to health, the right to family life, the right to privacy and to security.

The Indonesian law on regional autonomy notwithstanding, the UN Commission on Human Rights emphasizes “that ultimate legal responsibility for preventing forced evictions rests with governments”UNCHR Resolution 1993/77).

RECOMMENDATIONS

On the basis of the mission’s findings and discussions with various sectors, the mission recommends the following:

Short Term

1. The imposition of a 100-days moratorium on forced evictions and confiscations, starting with the commencement of the Moslem fasting month Ramadhan, and continued through Ied al Fitr, Christmas and New Year. During the period, a constructive dialogue and review of the existing regulations, policies and plans concerning the urban poor are to be conducted, involving civil society groups and the urban poor themselves.

State Ministers of the central government, for instance, the ministers of housing and settlements, of women empowerment and manpower, who expressed concern about the rights to work and shelter of the urban poor of Jakarta are sincerely enjoined to facilitate the issuance of such a moratorium by the city government of Jakarta. They are also equally enjoined to call the attention of the President of Indonesia and the other members of her cabinet on the grim situation of the urban poor in Jakarta and advise them on the need for a moratorium and the holding of a dialogue.

2. The holding of a dialogue or a series of dialogues to be participated in by the regional government, central government ministries, urban poor organizations, their NGO partners,and other stake holders to address the problems of the urban poor comprehensively and find alternative, inclusive and creative solutions.

Again, the State Ministers of housing and settlements, women empowerment and manpower are encouraged to assist in the holding of the dialogue. The Indonesia Human Rights Commission, in particular its ECOSOC team, and the National Commission on Violence against Women and the National Commission for the Protection of Children have the special task of bringing about the holding of the dialogue.

3. In order to prevent the recurrence of state violence against the urban poor in the future, the regional government of Jakarta should provide land for the settlement of the urban poor in Jakarta, and legalize the informal economic activities from which the urban poor earn their means of living.

Medium and Long Term

4. The holding of a joint investigation to be conducted by the Jakarta government and civil society organizations, which includes the relevant institutions of the central government, such as the Commission on Human Rights, the Commission on Violence against Women, the Commission on Children, and the filing of lawsuits in the appropriate courts to prosecute and to hold accountable those responsible for the violence unleashed against the rights of the urban poor, in particular their rights to work and shelter and other related rights.

5. The abolition of existing laws and regulations affecting the city’s poor, such as Regulation 11/1988, by the regional parliament of Jakarta and the adoption of laws and regulations that conform to national and international laws, and the strict compliance of these laws, and regulations, procedures and due process by the law enforcement personnel and officers, including accountability of implementing officers.

The mission calls on members of the regional parliament of Jakarta who individually have sympathy for the urban poor and call on like-minded individuals in the regional parliament to annul laws that are anti-poor and promote laws that are pro poor.

The mission equally calls on regional authorities to review rules of engagement (maximum tolerance) in carrying out demolitions and to ensure the faithful compliance by the local apparatus.

6. The review of existing laws and guidelines related to the right to adequate housing and eviction, such as the Presidential Decree No. 55 (1993), and their admendments where necessary, and the adoption by the national parliament of laws and guidelines that provide for a comprehensive package of entitlements for the urban poor, and lay down a compensation package acceptable to affected households where evictions are unavoidable, and a just and humane procedure in the conduct of evictions that conform to international human rights laws.

The resolution by the national and regional authorities of conflicts between the national basic law and local regulations in favor of the urban poor, with particular efforts to include women in the entire process.

7. The focusing of the poverty alleviation program of the regional and central governments on the provision of security to the urban poor: security of land tenure and security of work which includes the legalization of their informal economic activities. For this the regional and central government are enjoined to allocate a significant amount from their national and regional budgets, including funds from loans and grants from multilateral and bilateral institutions.

The adoption by the central government of a national housing policy that is participative, inclusive and creative, including housing solutions that are environment friendly, gender sensitive and within the capacity of the urban poor to pay.

8. The activation by the central government of the existing mechanism for periodic and emergency consultations and dialogue between the government, the urban poor and other civil society organizations,that firmly adher to the principles of transparency and participation.

9. The issuance by the Supreme Court of Indonesia of guidelines to ensure respect for domestic and international human rights instruments, in particular the human rights to adequate housing and work.

10. The formation by political parties of special committees to look into the issues of urban poverty and evictions, to formulate bills after adequate consultations with the urban poor and civil society organizations have been conducted, to amend and align existing laws and regulations with international instruments.

11. The formation of teams by the Indonesia Human Rights Commission and the Commission on Violence against Women and the National Commission on the Protection of Childrento monitor strict compliance of national and international laws and regulations during evictions and demolitions with particular consideration on their impacts on women and children.

12. The holding by the UNDP, ILO, and other organizations having bilateral relations with Indonesia, such USAID and AUSAID, of consultations, caucuses and dialogues to be participated by the regional and central governments, urban poor organizations and other civil society organizations on promoting proactively and constructively the agenda of poverty alleviation.

13. The holding of a fact finding mission by the the Office of UN High Commissioner for Human Rights, in particular the Special Rapporteur on the Right to Adequate Housing to verify the reports of civil society organizations on state violations of the human rights of the urban poor of Jakarta and to ascertain culpable violations by both the regional and central governments, including their various apparatus, and recommendations to the regional and central governments on how the rights of the poor to housing and work are to be safeguarded and promoted.

14. The formation by religious leaders and institutions – Muslim, Catholic, Protestant, Buddhist, Hindu, Confucian – of special groups or committees to provide immediate relief to the victims of confiscations and evictions, with particular attention to women and children, in Jakarta and to tackle the issues of urban poverty and evictions,as well as the issuance of moral directives to the regional and central governments enjoining them to stop the on-going confiscations and evictions and to promote instead the human rights of the poor, such as the rights to housing and to work.

Signatories:

Won Soon Park

Executive Director

People’s Solidarity for Participatory Democracy

South Korea

Jesse Robredo

Mayor

Naga City, Philippines

Soetandyo Wignyosoebroto

Professor

University of Airlangga

Surabaya, Indonesia