Tenure Security for Indonesia’s Urban Poor : a socio- legal study on land, decentralisation, and the rule of law in Bandung Reerink, G.O. Citation Reerink, G. O. (2011, December 13). Tenure Security for Indonesia’s Urban Poor : a socio-legal study on land, decentralisation, and the rule of law in Bandung. Meijers-reeks. Leiden University Press (LUP), Leiden. Retrieved from https://hdl.handle.net/1887/18325 Version: Not Applicable (or Unknown) Licence agreement concerning inclusion of License: doctoral thesis in the Institutional Repository of the University of Leiden Downloaded from: https://hdl.handle.net/1887/18325 Note: To cite this publication please use the final published version (if applicable). MI MEIJERS MEIJERS RESEARCH INSTITUTE RESEARCH INSTITUTE AND AND GRADUATE SCHOOL 199 GRADUATE SCHOOL Leiden Law School Gustaaf Reerink Leiden Law School Today, about 1 billion people are estimated to live in ‘slums’ worldwide. This number will only grow and urban poverty worsen unless radical measures are taken. While it is generally acknowledged in the international development debate that breaking the circle of poverty requires multiple strategies, there is renewed attention for approaches that centre on the issue of tenure security. This means landholders are protected against involuntary removal from the land Tenure security for on which they reside, unless through due process of law and payment of proper compensation. The prevailing approach to the provision of tenure security is land registration. And while the land registration approach currently dominates policy, Indonesia’s urban poor there has been little research into the effects of registration, particularly in urban areas. What research has been conducted, contests the benefits of this approach. Tenure security for Indonesia’s urban poor As a result, we witness increasing interest in alternative approaches which gener- ally combine protective administrative or legal measures against eviction with the provision of basic services and credit facilities. A socio-legal study on land, decentralisation, The author describes and analyses the extent to which formal, semiformal, and and the rule of law in Bandung informal tenure arrangements that can be found in kampongs (typical low-income settlements) in Indonesia provide tenure security to the country’s urban poor, particularly since 1998, when Indonesia embarked on an ambitious political and legal reform programme. The author reviews the current legal framework that applies to urban land tenure in Indonesia. In addition, based on rich mate- rial that was acquired through empirical research in the city of Bandung, there are a number of case studies presented in which the urban poor’s tenure security was put to the test. Finally, drawing on statistical data, the author analyses the urban poor’s perceptions regarding their tenure security and whether and, if so, how this influences their housing investment behaviour. Following this analysis, the author evaluates the socio-economic benefits of current approaches to attaining tenure security. And with these findings, there are policy suggestions and contributions to theory formation presented to further the current inter- national development debate on tenure security. This is a volume in the series of the Meijers Research Institute and Graduate School of Leiden University. The study is a part of the Law School’s research Gustaaf Reerink programme on Securing the rule of law in a world of multilevel jurisdiction and was conducted as part of a research project of the Van Vollenhoven Insti- tute for Law, Governance, and Development. LUP LEIDEN UNIVERSITY PRESS 9 789087 281526 Tenure security for Indonesia’s urban poor A socio-legal study on land, decentralisation, and the rule of law in Bandung Leiden University Press The research this book is based on and its publication have been made pos- sible by grants from the Netherlands Royal Academy of Sciences (KNAW), the Netherlands Organisation for Scientific Research (NWO), the Society for the Advancement of Research in the Tropics (Treub-Maatschappij), the Royal Netherlands Institute of Southeast Asian and Caribbean Studies / Adat Law Foundation (KITLV / Adatrechtstichting), the Leiden University Fund (LUF), and the Faculty of Law, Leiden University. Lay-out: AlphaZet prepress, Waddinxveen ISBN 978 90 8728 152 6 eISBN 978 94 0060 071 3 © 2011 Gustaaf Reerink | Leiden University Press All rights reserved. Without limiting the rights under copyright reserved above, no part of this book may be reproduced, stored in or introducted into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise) without the written permission of both the copyright owner and the author of the book. Tenure Security for Indonesia’s Urban Poor A socio-legal study on land, decentralisation, and the rule of law in Bandung PROEFSCHRIFT ter verkrijging van de graad van Doctor aan de Universiteit Leiden, op gezag van Rector Magnificus prof. mr. P.F. van der Heijden, volgens besluit van het College voor Promoties te verdedigen op dinsdag 13 december 2011 klokke 15:00 uur door Gustaaf Olivier Reerink geboren te Dwingeloo in 1978 Promotiecommissie: Promotor: Prof. dr. J.M. Otto Co-promotor: Dr. A.W. Bedner Overige leden: Prof. mr. A.G. Castermans Dr. F. Colombijn (Vrije Universiteit Amsterdam) Prof. dr. D. Fitzpatrick BA LLB LLM (Australia National University, Canberra, Australia) Prof. dr. T. Rahmadi SH LLM (Universitas Andalas, Padang, Indonesia) Contents List of maps, tables, and appendices IX Acknowledgements XI Abbreviations and Acronyms XIII 1 Introduction 1 1.1 Urban poverty and informality 1 1.2 Tenure security, land registration, and alternative approaches 3 1.3 The need for a rule of law environment 8 1.4 Urban poverty, tenure security, and the rule of law in Indonesia 10 1.5 Research questions 15 1.6 Framework of analysis 15 1.7 Methodologies 17 1.8 Limitations of research 21 1.9 Outline 22 2 Migrants flows, regulatory failure | A short history of the kampongs of Bandung 25 2.1 Introduction 25 2.2 Autonomous villages in an expanding colonial town 26 2.3 Refuge settlements in an occupied city 32 2.4 Migrant settlements in a decolonising city 34 2.5 Migrant settlements in a metropolitan city 40 2.6 Bandung’s kampongs today: a ‘challenge of slums’? 48 2.7 Conclusion 53 3 State rights and individual obligations | A general overview of Indonesian land law 57 3.1 Introduction 57 3.2 Guided Democracy: land law in a state of revolution 58 3.3 The New Order: land law in a ‘developmentalist‘ state 63 3.4 Post-New Order: land law in a decentralised ‘Rechtsstaat’? 68 3.4.1 General reforms 68 3.4.2 Regional autonomy 74 3.4.3 Land law reform 82 3.4.4 Access to justice and legal empowerment 85 3.5 Conclusion 87 VI Contents 4 An ‘ideal’ beyond reach | Law and practice of land registration 89 4.1 Introduction 89 4.2 The system of land registration in Indonesia 90 4.3 Sporadic registration and its limits 95 4.4 Systematic registration: set-up of land registration programmes 99 4.5 Reach of land registration programmes 102 4.6 Land registration, tenure security, and the rule of law 104 4.7 Recent reforms related to land registration 112 4.8 Conclusion 117 5 When money rules over voice | Law and practice of spatial planning 121 5.1 Introduction 121 5.2 Spatial planning under the late New Order 122 5.3 Legal reforms related to spatial planning 128 5.4 Practice of spatial planning in Post-New Order Bandung 131 5.5 Spatial planning, tenure security, and the rule of law 145 5.6 More recent reforms related to spatial planning 153 5.7 Conclusion 156 6 Not just compensation | Law and practice of land clearance by the state 159 6.1 Introduction 159 6.2 Land clearance by the state under the late New Order 159 6.3 Practice of land clearance by the state in Post-New Order Bandung 167 6.4 Land clearance by the state, tenure security, and the rule of law 177 6.5 Recent reforms related to land clearance by the state 181 6.6 Conclusion 185 7 Dealing with the urban poor | Law and practice of commercial land clearance 187 7.1 Introduction 187 7.2 Commercial land clearance under the late New Order 188 7.3 Legal reforms related to commercial land clearance 193 7.4 Practice of commercial land clearance in Post-New Order Bandung 196 7.4.1 The Paskal Hyper Square project 197 7.4.2 Land clearance in Kebonjeruk 199 7.4.3 Land clearance in Ciroyom, second zone 202 7.4.4 Land clearance in Ciroyom, third zone 205 7.5 Commercial land clearance, tenure security, and the rule of law 206 7.6 Conclusion 210 Contents VII 8 Investing in kampongs: risky business?| Perceived tenure security and housing consolidation 213 8.1 Introduction 213 8.2 Tenure status and perceived tenure security 214 8.2.1 Perceived legitimacy of tenure 215 8.2.2 Perceived possibility of involuntary removal 216 8.2.3 Perceived possibility to receive compensation entitled to 217 8.3 Changed perceptions of tenure security since the end of the New Order 218 8.4 Housing consolidation 219 8.5 Conclusion 221 9 Conclusion 223 9.1 Introduction 223 9.2 Land tenure security of low-income kampong dwellers 223 9.3 Rule of law development at the local level 226 9.4 Indonesia’s current approaches to attaining land tenure security 229 9.5 Policy suggestions 230 9.5.1 Toward a rights-based approach 230 9.5.2 Legal and institutional reforms 232 9.5.3 Legal empowerment 239 9.6 Contribution to policy theory 239 9.7 Suggestions for further research 241 Appendix I 243 Appendix II