Law firms play dubious role in Indonesian land disputes
Law firms play a dubious role in important land disputes in Indonesia. They act as fixers and settle conflicts to the advantage of large companies. PhD candidate Santy Kouwagam studied their modus operandi. PhD defence on 23 June.
Meikarta was to be the crowning glory of Indonesia if the project developer was to be believed. An entirely new city on the outskirts of Jakarta, but then cleaner, greener, safer and bursting with new technology. With a staggering 200 skyscrapers and around a million inhabitants it would, as the website still claims, surpass ‘anything this country has ever seen’.
‘But in the meantime, the same thing happened as so often happens in Indonesia,’ says PhD candidate Santy Kouwagam. ‘The houses and apartments were sold before the developer had obtained the permits for the land rights. And to get hold of these permits after the event, the company paid bribes to the local government.’ This led to a number of prosecutions in 2019, with business people and politicians receiving long prison sentences.
Conflicts about land rights are commonplace in Indonesia. By no means all land is meticulously registered at the land registry, but in other cases several people claim ownership of the same piece of land. With such confusion , numerous smaller and larger disputes are inevitable and these range from a conflict between two neighbours to a mega company wanting to turn a contested piece of land into a palm oil plantation or shopping centre.
In almost all cases, big businesses emerge as the victor, Kouwagam discovered during her research. ‘They have the financial means to call in the help of large law firms. Family lawyers, who provide complete legal assistance to one family business, are particularly successful. They work as fixers: they do everything within their power to solve your problem.’
These family lawyers regularly operate on or over the edge of what is legal. A bribe to a local governor, for instance, can mean a piece of land is confiscated ‘in the public interest’. Kouwagam: ‘The local governor says they are going to make the location available for a new mosque, for example, and the remaining space is covertly assigned to a project dealer.’
The problem, says Kouwagam, is that corruption in Indonesia works differently. Rather than transferring bribes, fixers befriend the children of politicians, judges and police officers and butter them up with gifts and facilities. Kouwagam: ‘And to a certain extent that’s just how a traditional society works.’ Good connections are everything in Indonesia.
How can Indonesia break free of this vicious circle of corruption? If you ask Kouwagam, this should start with lawyers themselves. They should be united to establish a force of discipline, but they cannot do this alone. Judges need to be involved as well. They have to not only reach a verdict but also clearly justify this verdict. In their decisions they should explain how they have understood the facts and why they came to the judgments. They have to be able to tell a story to the reader of their judgments. A better explanation of their reasoning could significantly improve the jurisprudence about corruption cases.
‘The lawyers were offended’
When she was younger, Santy Kouwagam dreamed of a jet-setting legal career. She wanted nothing more than to fly around the world in a business suit and high heels. But when she returned to Jakarta after she graduated, she saw how incomplete Indonesian legal practice really was, and how rampant the corruption was. She wanted to make a difference.
‘It is commonly known that there is corruption,’ she says. ‘But no one talks about how this corruption works. For my thesis at Leiden University I therefore wanted to identify the role that law firms play in upholding this system.’ Her research became a direct reflection of her own work because she has been working at a large law firm in Jakarta since 2009.
People were not always pleased with her research. ‘For my research I interviewed many lawyers, and each and every one of them was offended as soon as I gave them a draft to read. However, I hope they will soon dare to read my thesis with an open mind. Because we have to know about the dark side of the practice too.’