Constitutional Recognition of Indigenous Peoples and Investment Policy in Indonesia: From Normative Ideals to Legal Realities

Introduction

Indonesia’s constitutional architecture recognizes the existence and rights of Masyarakat Hukum Adat (MHA, indigenous peoples) through a triad of provisions—Article 18B(2), Article 28I(3), and Article 32(1)–(2) of the 1945 Constitution (UUD 1945). Each provision reflects a distinct normative lens: governance (Art. 18B[2]), human rights (Art. 28I[3]), and culture (Art. 32[1]–[2]). Read together, they express a principled commitment to recognizing and respecting MHA; read closely, they also embed conditions that must be satisfied before recognition becomes operative in practice ((C.o.t.R.o. Indonesia 1945); (Simarmata 2006); (Thontowi 2012)). Article 18B(2), for instance, affirms that the state “recognizes and respects” MHA and their traditional rights only insofar as the community still exists, remains compatible with societal development and the fundamental principles of the Unitary State (NKRI), and is regulated in legislation. This formulation places the burden of proof and legislative concretization on both claimants and administrators and, in doctrinal terms, turns constitutional recognition into a conditional regime (Simarmata 2006); (Abdurrahman 2015); (R.Y. Zakaria 2018).

This conditionality is not a drafting curiosity; it has concrete administrative and distributive consequences. The grammatical difference between “regulated in legislation” (diatur dalam undang-undang) and “regulated by legislation” (diatur dengan undang-undang) matters for institutional design, because it shapes whether recognition can be implemented through a dispersed network of sectoral statutes or must await a single, dedicated framework law ((Abdurrahman 2015); (Simarmata 2006). The former permits implementation across a constellation of sectoral statutes (e.g., land, forestry, mining, water, culture, investment), whereas the latter would imply the need for a single, overarching act. In practice, dispersing implementation across sectors has produced a fragmented landscape of recognition precisely where investment projects intersect with adat territories ((R.o. Indonesia 1960); (R.o. Indonesia 1967b); (R.o. Indonesia 1974); Law No. 1 of 1967 (Law No. 1 of 1967 concerning Foreign Investment (Undang-Undang Penanaman Modal Asing). 1967); (R.o. Indonesia 1968); (Lev 2000); (R.Y. Zakaria 2018)). The result is a persistent gap between constitutional text and policy practice: conflicts over access, licensing, and territory persist; procedures for identifying, verifying, and formalizing adat communities and their domains remain uneven; and participatory mechanisms are inconsistently applied across jurisdictions and sectors ((R.o. Indonesia 1960); (R.o. Indonesia 1967b); (Simarmata 2006); (Thontowi 2012); (Abdurrahman 2015)).

Indonesian constitutional jurisprudence has supplied important bridge norms. In Decision No. 31/PUU-V/2007, the Constitutional Court articulated indicators of the “actual existence” of MHA—such as social cohesion, customary institutions, adat property, norms, and territory—thereby guiding how authorities should evaluate recognition claims ((C.C.o. Indonesia 2007d); (Thontowi 2012)). In Decision No. 35/PUU-X/2012, the Court clarified that hutan adat (customary forests) are not state forests, repositioning MHA as rights-bearing subjects in relation to their territories and resources and requiring that sectoral forestry norms be read consistently with Article 18B(2) (C.C.o. Indonesia 2012c); (Abdurrahman 2015)). These holdings nudge the system toward constitutional normativity, yet they require robust administrative follow-through: credible mapping, formalization of territories (e.g., through regional regulations and registries), and standardized, meaningful participation in state decision-making ((Simarmata 2006); (R.Y. Zakaria 2018)).

International standards reinforce and sharpen this trajectory. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) sets minimum norms for the fulfillment, protection, and advancement of indigenous rights, including participation and free, prior, and informed consent (FPIC) where decisions affect indigenous territories and resources (Nations 2007). The International Labour Organization’s Convention No. 169 (1989) pivots away from the integrative stance of ILO 107 (1957) toward self-identification and meaningful consultation, elaborating rights to land and resources as well as participatory guarantees (International Labour Organization (ILO 1989a)). Aligning Indonesia’s conditional constitutional recognition with these standards entails coherent procedures for recognition and FPIC-aligned engagement across sectors, particularly in licensing, environmental and social impact assessment, spatial planning, and project monitoring ((Nations 2007); (ILO 1989a); (R.Y. Zakaria 2018)).

Beyond the Indonesian context, debates on indigenous constitutionalism, natural-resource governance, and law and development have shown how written guarantees often fail to constrain public power in resource-dependent economies unless they are translated into operational rules and institutional routines ((Lev 2000); (Tamanaha 2006)). Existing Indonesian and comparative scholarship has extensively mapped the constitutional provisions on MHA, examined particular Constitutional Court decisions, or documented conflicts at the intersection of adat territories and investment projects ((Simarmata 2006); (Thontowi 2012); (R.Y. Zakaria 2018)). However, less attention has been paid to how Article 18B(2)’s conditional recognition operates across sectors as a system, how judicially developed criteria of “actual existence” do—or do not—translate into uniform administrative procedures, and how far domestic practice aligns with evolving international expectations on FPIC and human-rights due diligence (HRDD).

Theoretically, this diagnosis resonates with classic accounts of constitutionalism that distinguish a constitution’s text from its lived operation. Lowenstein’s triad—normative, nominal, and semantic constitution—captures how constitutional promises bind public power only when institutions instantiate and enforce them across decision cycles (Loewenstein 1957). Kelsen’s account of hierarchical norms underscores that constitutional authorizations must be translated into valid lower-order rules and administrative routines to be effective (Kelsen 1992a). Wheare’s structural insights, though developed in different constitutional settings, remind us that the allocation of powers and functions shapes outcomes beyond what textual enumeration alone might predict (Wheare 1951). Recognition theory adds a moral-sociological dimension: for (Honneth 1995), recognition is not merely declaratory but a practical, institutionalized relation that enables subjects to flourish; juridically, this implies that “recognition” lacking procedures, remedies, and enforceable participation remains incomplete. Together, these perspectives provide a conceptual framework for assessing whether Indonesia’s conditional recognition of MHA remains merely textual or becomes genuinely normative in practice ((Loewenstein 1957); (Honneth 1995); (Tamanaha 2006).

Against this backdrop, the research gap can be specified along three axes. First, while the triadic constitutional foundation for MHA rights is well known, there is limited analysis of how Article 18B(2)’s conditionality functions across sectors in practice—namely, how the dispersion of implementing norms affects recognition outcomes from one licensing pathway to another ((Simarmata 2006); (Adriaan Bedner and Arizona 2013); (Arizona 2014)). Second, although the Constitutional Court has articulated indicators of “actual existence,” there is no single, uniform national procedure that binds agencies to consistent standards of identification, verification, and formalization; as a result, recognition can vary by locality and sector, generating legal uncertainty and conflict ((C.C.o. Indonesia 2007d), (C.C.o. Indonesia 2012c); (A. Bedner 2010a); (S. Butt 2014)). Third, while UNDRIP and ILO 169 highlight participation and consultation, operational rules that embed FPIC-aligned processes and HRDD into licensing, monitoring, and grievance systems remain under-specified in many sectoral regimes ((Nations 2007); (ILO 1989a); (Nations 2011)). This article responds to those gaps by posing three research questions:

1. RQ1: How does the constitutional design of conditional recognition—as expressed in Articles 18B(2), 28I(3), and 32(1)–(2)—shape or limit the protection of MHA collective rights across governance, human-rights, and cultural domains?

2. RQ2: To what extent do Indonesia’s constitutional clauses and judicial criteria align with international standards (UNDRIP; ILO 169) on participation, consultation, and land and resource rights?

3. RQ3: How have Indonesia’s investment regimes and sectoral statutes historically affected the realization of MHA rights, and what institutional reforms are necessary to make constitutional recognition normative in practice?

Our contributions are both theoretical and practical. Theoretically, we extend “constitutionalism-as-practice” by showing how a constitution becomes normative only when recognition is operationalized through administrative procedures, inter-agency coordination, and justiciable participation standards; otherwise, recognition risks remaining nominal or semantic despite strong textual guarantees ((Loewenstein 1957); (Kelsen 1992a); (Honneth 1995); (Law 2016)). Practically, we develop an operational agenda: (a) nationally uniform procedures for identifying, verifying, and formalizing MHA and their territories, drawing on the Constitutional Court’s “actual existence” indicators ((C.C.o. Indonesia 2007d); Pusat Penelitian dan Pengkajian Hukum MK RI, 2021); (b) sector-neutral, FPIC-aligned consultation rules embedded at key decision points—licensing, impact assessment, monitoring, and renewal—so participation becomes a justiciable condition of administrative validity ((Nations 2007); (ILO 1989a); (Barelli 2012)); and (c) HRDD obligations that require rights-risk assessment, mitigation, monitoring, and accessible grievance mechanisms in investment projects, aligning domestic administration with evolving global practice under the UN Guiding Principles on Business and Human Rights ((Nations 2011); (Ruggie 2013)).

The urgency for these contributions is constitutional, not merely policy-driven. The Constitution does not acknowledge MHA in the abstract; it constitutionalizes a duty to recognize and respect them, while Article 28I(3) places cultural identity and traditional rights within the ambit of rights that the state must honor “in step with civilization and the times” ((C.o.t.R.o. Indonesia 1945); (Asshiddiqie 2016)). The doctrinal implication is twofold: recognition must be real—backed by implementable procedures and remedies—and it must be current, adapting to societal change without diluting core protections ((Simarmata 2006); (Adriaan Bedner and Arizona 2013)). A coherent, sector-spanning design is therefore not optional but part of the state’s constitutional obligations, especially in a resource-dependent, investment-driven economy.

The remainder of this article proceeds as follows. Section 2 situates our analysis within constitutionalism and the politics of law and reviews international standards relevant to indigenous rights ((Loewenstein 1955); (Honneth 1995); (Nations 2007); (ILO 1989a)). Section 3 outlines the doctrinal/normative legal methodology, including statute, case, conceptual, and historical–comparative approaches ((Hutchinson and Duncan 2012); (Tamanaha 2006)). Section 4 presents the findings, synthesizing the triadic constitutional architecture, key jurisprudence (MK 31/2007; MK 35/2012), and the historical trajectory of investment policy (A. Bedner, & van Huis, S. 2010b). Section 5 offers a discussion that integrates these findings with theory and distills an actionable reform agenda for uniform recognition procedures, FPIC-aligned participation, and HRDD. Section 6 concludes by underscoring how aligning conditional recognition with international standards can move Indonesia from nominal or semantic to normative constitutional implementation (Nations 2007); (ILO 1989a); (C.C.o. Indonesia 2012c); (Ruggie 2013).

Literature Review

1. Constitutional foundations for indigenous rights

Indonesia’s Constitution articulates three distinct yet related “pillars” for understanding the rights of Masyarakat Hukum Adat (MHA, indigenous peoples): a governance pillar (Article 18B[2]), a human-rights pillar (Article 28I[3]), and a cultural pillar (Article 32[1]–(2]) of the 1945 Constitution (UUD 1945) (Constitution of the Republic of Indonesia, 1945/Amend.). Each provision frames state obligations and limits in a slightly different way. Article 18B(2) requires the state to “recognize and respect” the units of MHA and their traditional rights, but only “as long as they still exist,” “in accordance with societal development,” “in accordance with the principles of the Unitary State,” and “as regulated in legislation” (Constitution of the Republic of Indonesia, 1945/Amend.). Article 28I(3) places cultural identity and traditional community rights within the horizon of human rights, to be “respected in step with civilization and the times,” while Article 32(1)–(2) moves in the cultural domain by guaranteeing people’s freedom to preserve and develop cultural values and to respect and maintain local languages ((C.o.t.R.o. Indonesia 1945); see also (Simarmata 2006)).

Read together, these three pillars provide a strong textual basis for indigenous recognition, but they also constitutionalize conditionality. Comparative tabulation of the provisions’ material scope, conceptual approach, state obligations, and limitations supplies a conceptual anchor for this article’s focus on conditional recognition and its consequences for cross-sectoral implementation. As (Simarmata 2006) and subsequent Indonesian constitutional scholarship have shown, the four qualifiers in Article 18B(2)—“still exist,” “in accordance with societal development,” “in accordance with the principles of the Unitary State,” and “regulated in legislation”—turn recognition into a status that must be continuously demonstrated and administratively confirmed rather than presumed (see also (C.C.o. Indonesia 2007b), (C.C.o. Indonesia 2012a)).

Constitutional jurisprudence has further operationalized these conditions. In its landmark decisions, the Constitutional Court has interpreted what it means for MHA to “still exist,” to be compatible with societal development and the principles of the unitary state, and to be “regulated in legislation” ((C.C.o. Indonesia 2007a), (C.C.o. Indonesia 2012b)). In Decision No. 31/PUU-V/2007, the Court articulated indicators of actual existence—such as enduring social cohesion, customary institutions, adat property regimes, norms, and territories—while in Decision No. 35/PUU-X/2012 it clarified that hutan adat (customary forests) do not form part of state forests, thereby re-positioning MHA as rights-bearing subjects in relation to their territories and resources ((C.C.o. Indonesia 2007c), (C.C.o. Indonesia 2012d)). These interpretations tie the constitutional text to concrete review of sectoral policies and supply doctrinal criteria that should, in principle, guide administrative recognition and legislative design in land, forestry, environmental, and investment law.

From a recognition-theory perspective, these provisions and decisions are not merely symbolic. For (Honneth 1995), recognition is a practical, institutionalized relation that supports subjects’ self-respect and flourishing; legal recognition is incomplete if it remains declaratory and is not backed by procedures, remedies, and enforceable participation. Applied to Indonesia, this suggests that constitutional recognition of MHA can only be considered meaningful when the triadic provisions are translated into clear, accessible procedures for identifying communities, formalizing their territories, and ensuring their participation in state decision-making—especially where development and investment projects affect adat domains ((Simarmata 2006); (C.C.o. Indonesia 2012b)).

1. Constitutionalism: normative, nominal, and semantic

Lowenstein’s classic typology of constitutional value—normative, nominal, and semantic—provides a diagnostic lens for examining the gap between constitutional promises and administrative practice (Loewenstein 1957). A constitution is normative when its rules effectively constrain and guide the exercise of public power—the Sollen is realized in the Sein. It is nominal when constitutional norms exist in text but are not relied upon as operative premises in policymaking, producing a persistent deviation between ideals and reality. A semantic constitution uses constitutional language primarily as a legitimating slogan: the text is invoked to validate political choices without actually constraining them (Loewenstein 1957).

In the Indonesian context, these categories can be translated into operational terms and linked to the triadic recognition of MHA. A constitution with normative value requires provisions to be implemented “orderly, consistently, and with consequences”: Article 18B(2), for example, would be channeled into effective sectoral regulations and administrative procedures that recognize MHA communities and their territories in practice, including in licensing, spatial planning, and environmental governance ((C.C.o. Indonesia 2012a); see also (Kelsen 1992b)). At the nominal level, recognition appears in the Constitution and in selected statutes but fails to significantly alter licensing regimes in forestry, mining, or investment. At the semantic level, recognition is highlighted rhetorically to signal commitment, yet is circumscribed by elastic conditions or protracted verification processes that prevent concrete rights from crystallizing ((Loewenstein 1957); (Simarmata 2006)).

Indonesia’s post-1967 experience illustrates the risks of such slippage. During periods of intensive industrialization and capital accumulation, investment-friendly statutes reshaped the legal landscape for land, forests, and natural resources without systematically integrating constitutional commitments to MHA ((Lev 1978); (Wheare 1963)). In Lowenstein’s terms, constitutional guarantees that are not backed by compatible sectoral governance tend to drift from normative toward nominal or even semantic status. The triad thus becomes more than a typology: it is an analytical tool for asking whether recognition of MHA is binding in practice or only binding in text ((Loewenstein 1957); (Kelsen 1992a)).

Politics of law and sectoral legislation

A politics of law perspective emphasizes that law crystallizes dominant political choices rather than existing as a neutral, autonomous system. In this view, law is a dependent variable, while politics and policy priorities act as independent variables that shape legislative outputs and institutional design (E. Utrecht, & Djindang, M. S. 1961); (Tamanaha 2006)). Indonesia’s sectoral legal framework—agrarian, forestry, mining, water, and investment—embodies particular configurations of power and developmental preferences, reflecting the dominance of state-centered and growth-oriented policies in different political periods (Lev 1978, 2000). Ideally, politics of law would reflect social reality (sociale werkelijkheid), ensuring that statutes are instruments for achieving broad public purposes—such as social justice and environmental sustainability—rather than narrow sectoral or elite interests (E. Utrecht, & Djindang, M. S. 1961).

Seen through this lens, oscillation in the regulation of MHA—from recognition to restriction—appears as a consequence of growth-first paradigms that position investment as the locomotive of development. During the New Order period, for instance, the stagnation of legal arrangements concerning MHA coincided with the expansion of policies that facilitated foreign and domestic capital, systematically narrowing indigenous access to land and resources (Lev 1978, 2000). Sectoral legislation frequently prioritized concessions, large-scale licensing, and state control over forests and subsoil resources, while leaving questions of indigenous recognition to generic clauses or implementing regulations that were never fully operationalized (A. Bedner, & van Huis, S. 2010b). Legislative texts often acknowledge hak ulayat (customary territorial rights) only to temper that recognition with clauses such as “insofar as it does not conflict with national interests” or “further regulated by government regulation,” leaving wide discretion for administrative authorities to test, delay, or limit recognition ((Simarmata 2006); (S. Butt, & Lindsey, T. 2012)).

A politics-of-law reading of sectoral instruments on land, water, forestry, and investment thus reveals recurring formulations that create conditional recognition: MHA are acknowledged, but through administrative procedures that are complex, discretionary, or incomplete. In practice, this pattern produces implementation gaps at key stages of the regulatory cycle—licensing, spatial planning, environmental and social impact assessment, and monitoring—where constitutional guarantees are not systematically translated into binding administrative conditions ((Lev 1978); (A. Bedner, & van Huis, S. 2010b); (Tahyar 2012)). In this sense, conditional recognition is not only a doctrinal category but also a reflection of political priorities in developmental cycles. When investment facilitation is prioritized without clear, binding rules on recognition and participation, the constitutional commitment to MHA risks being implemented only nominally or semantically in Lowenstein’s terms, rather than normatively and effectively (Loewenstein 1957).

International standards: from integration to self-identification

International standards supply a broader normative and procedural horizon against which domestic recognition can be assessed. The evolution from an integrationist paradigm—embodied in ILO Convention No. 107 (1957)—to a paradigm of self-identification and meaningful consultation in ILO Convention No. 169 (1989) reflects a shift in how states are expected to relate to indigenous and tribal peoples: from objects of integration to subjects of rights (ILO 1989a, 1957). Convention No. 169 recognizes collective rights to lands and territories, resources, language, culture, and institutions, and it requires effective consultation—often interpreted through the lens of free, prior, and informed consent (FPIC)—before measures that may affect these interests are adopted ((Barelli 2012); Doyle (Doyle 2015)).

The United Nations Declaration on the Rights of Indigenous Peoples (Nations 2007), consolidates a set of minimum standards for the fulfillment, protection, and promotion of indigenous peoples’ rights, combining individual and collective dimensions (Nations 2007) UNDRIP underscores the importance of meaningful participation, respect for indigenous institutions, and safeguards against dispossession of lands, territories, and resources, while affirming rights to culture, identity, and self-determination. It also frames state obligations in relational and procedural terms: states are expected to establish processes that allow communication, consultation, and consent-seeking where policies, programs, or projects touch indigenous domains ((Barelli 2012); (Doyle 2015)).

These standards intersect with Indonesia’s constitutional pillars in at least three ways. First, the principle of self-identification challenges overly administrative, top-down verification logics that can lock recognition at a nominal or semantic level, especially when recognition is contingent upon burdensome evidentiary requirements controlled by state agencies ((Honneth 1995); (Anaya 2004)). Second, the protection of land and resource rights requires serious harmonization of sectoral laws if Article 18B(2) is to function normatively rather than merely symbolically; without such harmonization, constitutional guarantees remain vulnerable to being overridden by investment-oriented statutes ((Simarmata 2006); (McCarthy 2016)). Third, international benchmarks on participation and consultation provide parameters for domestic implementation: they invite scrutiny of whether licensing processes, spatial planning, and environmental and social impact assessments incorporate substantive consultation, FPIC-aligned procedures, and effective avenues for objections and remedies, or whether participation is reduced to formalistic steps ((ILO 1989a); (Nations 2007); (Doyle 2015)).

In Lowenstein’s terms, the more these international standards are embedded in administrative practice—for example, as mandatory conditions for licensing, criteria for impact-assessment approval, or grounds for judicial review—the closer Indonesia moves toward a constitution that is binding in practice rather than merely binding in text (Loewenstein 1957). When FPIC-related procedures and human-rights due diligence (HRDD) are recognized as legal obligations rather than discretionary “good practice,” constitutional recognition of MHA becomes harder to ignore in day-to-day governance ((Anaya 2004); (Knox 2009).

Taken together, this literature and theoretical framing ground the analysis that follows. Indonesia’s constitutional pillars provide strong yet conditional textual recognition of MHA (C.o.t.R.o. Indonesia 1945). Lowenstein’s triad helps identify whether that recognition currently operates at a normative, nominal, or semantic level (Loewenstein 1957). A politics-of-law approach explains why sectoral statutes—particularly in periods of aggressive resource-based development—may sideline collective rights despite constitutional guarantees (E. Utrecht, & Djindang, M. S. 1961); (Lev 1978); (Tamanaha 2006)). International standards on indigenous rights supply external benchmarks for shifting recognition from nominal or semantic toward normative status (ILO 1989a); (Nations 2007)). In post-1967 Indonesia, where investment expansion and resource-based industrialization have generated agrarian conflicts involving adat territories, these combined lenses allow a sharper evaluation of the extent to which recognition of MHA has become a living norm in licensing, land governance, and benefit-sharing arrangements, rather than remaining a constitutional promise on paper ((Lev 1978); (Wheare 1963); (Honneth 1995).

Doctrinal (normative) legal research design

This study adopts a doctrinal (normative) legal research design suited to questions about the meaning, structure, and implementation of constitutional guarantees for indigenous peoples within Indonesia’s legal order. The design prioritizes close reading and interpretation of legal texts—constitutional provisions, statutes, regulations, and Constitutional Court decisions—supplemented by scholarly commentary to test coherence across the legal system and to trace how constitutional ideals travel into sectoral governance and investment policy ((Hutchinson and Duncan 2012); (Kelsen 1992a)). Doctrinal research is appropriate because the core problem concerns (i) what the Constitution requires and permits with respect to the recognition of Masyarakat Hukum Adat (MHA, indigenous peoples) and (ii) how far implementing statutes and administrative regimes align with those requirements ((Hutchinson and Duncan 2012); (Tamanaha 2006)). In practical terms, the research proceeds as library-based analysis that inventories, identifies, classifies, and systematizes primary and secondary legal materials before interpretive evaluation.

Four established approaches in doctrinal analysis are combined. First, a statute approach examines the 1945 Constitution (UUD 1945) and its three key provisions on MHA—Articles 18B(2), 28I(3), and 32(1)–(2)—treating each as a distinct normative pillar (governance, human rights, and culture). These provisions embed different state responsibilities and conditions, which are read comparatively to explore whether and how “conditional recognition” operates as a cross-cutting constitutional theme ((Simarmata 2006); (S. Butt, & Lindsey, T. 2012)). Second, a case approach analyzes Constitutional Court jurisprudence, with particular attention to Decision No. 31/PUU-V/2007 (on indicators of the “actual existence” of MHA) and Decision No. 35/PUU-X/2012 (on the status of hutan adat). These decisions are used to operationalize the elements of recognition and to observe the Court’s treatment of statutory “conditions” and sectoral conflicts ((C.C.o. Indonesia 2007d, 2012c)).

Third, a conceptual approach draws on constitutionalism (normative/nominal/ semantic), recognition theory, and the politics of law to build an analytical lens that links constitutional text, doctrinal developments, and institutional practice ((Loewenstein 1955); (Honneth 1995); (Tamanaha 2006)). Fourth, a historical–comparative approach tracks Indonesia’s investment-law regimes across political periods (e.g., Old Order, New Order, Reformasi) to situate shifts in statutory design and administrative preferences that may limit or facilitate indigenous rights, especially in land- and resource-based sectors.

Primary sources include: (a) The 1945 Constitution (particularly Articles 18B[2], 28I[3], 32[1]–[2]); (b) sectoral statutes and regulations relevant to land, forests, culture, human rights, and investment; and (c) Constitutional Court decisions on MHA and natural-resource governance (notably Decisions No. 31/PUU-V/2007 and No. 35/PUU-X/2012). These instruments were retrieved from official government portals and legal information systems, focusing on the most recent consolidated versions in force at the time of writing ((C.o.t.R.o. Indonesia 1945); (C.C.o. Indonesia 2007e, 2012d),). The constitutional triad provides the anchor for sampling sectoral laws, while the selected Court decisions function as doctrinal inflection points that clarify the status of “customary forests” and elaborate criteria for recognition.

Secondary sources include monographs, journal articles, dissertations, policy papers, and doctrinal commentaries on constitutional theory, indigenous rights, and Indonesian public law, together with international instruments (UNDRIP; ILO Conventions No. 107 and No. 169) that set minimum standards and inform domestic interpretation (ILO 1989a, 1989b). These sources are used to explicate concepts, contextualize domestic developments, and evaluate whether Indonesian practice comports with comparative and international benchmarks, including recognition theory–based accounts of indigenous rights and conditional recognition in Indonesia’s legal order ((Honneth 1995); (Simarmata 2006)). Tertiary sources (legal dictionaries, encyclopedias, and reference works) assist in ensuring definitional consistency and cross-referencing across subfields.

Inclusion criteria were: (1) texts with direct legal force (constitutional provisions, statutes, government regulations, and Constitutional Court decisions); (2) doctrinal or theoretical works that are widely cited in Indonesian constitutional and indigenous-rights scholarship; (3) international standards that articulate broadly accepted principles on indigenous peoples; and (4) subnational instruments (e.g., special-autonomy provisions and provincial regulations) that illuminate concrete implementation pathways. Exclusion criteria were: (a) purely descriptive media reports lacking legal analysis; and (b) superseded regulations, except where historically necessary to reconstruct shifts in investment policy and natural-resource governance (Hutchinson and Duncan 2012).

To translate constitutional promises into analyzable variables, each of the three constitutional pillars is treated as a construct comprising: (i) normative approach (governance, rights, or culture); (ii) state responsibilities (e.g., recognize, respect, promote, guarantee); and (iii) express or implied conditions (e.g., “as long as they still exist,” “in accordance with societal development,” “consistent with the Unitary State,” “regulated in legislation”). These elements were arranged in a comparative matrix that guided the coding of constitutional and statutory provisions and reflected the tripartite design of conditional recognition developed in the broader theoretical framework.

For the case approach, Constitutional Court holdings and reasoning are coded for: (1) whether the Court treats recognition as declaratory (acknowledging pre-existing rights) or constitutive (creating rights); (2) whether the conditions in Article 18B(2) are interpreted as cumulative or alternative; and (3) how the Court harmonizes sectoral statutes with constitutional requirements. Particular attention is paid to how the Court’s “actual existence” indicators and its reading of hutan adat are, or are not, echoed in subsequent legislation and administrative practice (C.C.o. Indonesia 2007a, 2012a).

For the historical–comparative approach, investment regimes are periodized and cross-walked with the constitutional constructs above. For each period, we examine how statutory design (e.g., concession structures, licensing frameworks, land and forest tenure regimes) and policy rationales affect the operational space for MHA collective rights, identifying moments when investment priorities systematically narrow that space or, conversely, open opportunities for alignment with constitutional and international standards (R.o. Indonesia 1967a); (R.o. Indonesia 1968); (R.o. Indonesia 1967b); (R.o. Indonesia 1974)).

Legal analysis combines grammatical, systemic, and teleological interpretation. Grammatical interpretation grounds meaning in the ordinary and legal language of the provisions (e.g., “mengakui dan menghormati,” “sepanjang masih hidup”). Systemic interpretation situates each clause within the architecture of the Constitution and the broader statutory network, consistent with a hierarchical understanding of norms (Kelsen 1992a). Teleological interpretation asks what ends the constitutional clauses pursue—such as participation, identity, cultural flourishing, and protection of collective territories—and whether sectoral statutes advance or frustrate those ends (Alexy 2002).

These interpretive moves are embedded in Lowenstein’s typology of constitutionalism—normative (effective), nominal (largely textual), and semantic (power-legitimating)—used as an evaluative framework to diagnose where MHA recognition sits on this spectrum in different domains (Loewenstein 1955). Where constitutional clauses are formally acknowledged but administrative practice subordinates them to investment imperatives, recognition risks becoming nominal or semantic. Where doctrinal developments (e.g., MK 35/2012 on customary forests) alter administrative baselines and require changes in sectoral regimes, recognition tends toward the normative end of the spectrum (C.C.o. Indonesia 2012b).

To capture how political choices shape legal form, a politics-of-law lens is applied that treats statutes as crystallizations of competing preferences rather than as neutral technical instruments. This perspective justifies reading sectoral legislation through its underlying policy logics (e.g., growth-first development, resource commodification) and asking how those logics condition the realization of constitutional guarantees for MHA, in line with Utrecht’s and subsequent Indonesian scholarship on politics of law.

Finally, domestic results are benchmarked against international standards that have evolved from integrationism (ILO 107) toward self-identification, robust consultation (ILO 169), and minimum human-rights standards for indigenous peoples (UNDRIP). These instruments are used normatively—as persuasive authority to interpret constitutional clauses in harmony with Indonesia’s human-rights commitments and to specify best-practice indicators for participation, land and territory, and resource rights (ILO 1989a, 1957; Nations 2007).

Data collection followed an audit-trail protocol: (1) inventorying relevant legal materials; (2) screening for relevance to MHA recognition and investment governance; (3) classifying by constitutional pillar (Articles 18B[2], 28I[3], 32[1]–[2]), sector (land, forestry, mining, environment, culture, investment), and instrument type (constitutional, statutory, judicial); and (4) systematizing the corpus in the comparative matrix to enable cross-sectoral and cross-temporal analysis (Hutchinson and Duncan 2012).

Analytic reliability was enhanced through triangulation across textual bases (Constitution ↔ statutes ↔ Constitutional Court case law ↔ scholarly commentary). Where possible, cross-case validation was used by checking whether conditions articulated by the Court (e.g., indicators of “actual existence”) are reflected in legislative provisions or administrative guidelines; discrepancies were flagged as indicators of nominal or semantic constitutionalism (C.C.o.t.R.o. Indonesia 2007f; C.C.o. Indonesia 2012a); (Loewenstein 1955)). Doctrinal validity is pursued by seeking systemic coherence across sources and by explicitly engaging counter-arguments found in authoritative texts, including competing readings of conditional recognition and indigenous rights in Indonesian public-law scholarship. The comparative matrix of “approach–substance–state responsibilities–conditions” is presented to make the inferential steps transparent and replicable (Hutchinson and Duncan 2012).

Ethical considerations are minimal because the study relies exclusively on publicly available legal materials and scholarly sources; no human participants were involved. To mitigate interpretive bias, key claims are anchored in quoted statutory or judicial language, cross-checked against alternative doctrinal readings, and situated within existing scholarly debates on constitutionalism, recognition, and indigenous rights (Honneth 1995; Tamanaha 2006). References to subnational recognition instruments (e.g., special-autonomy provisions, provincial regulations) are illustrative of implementation pathways rather than an exhaustive mapping.

The doctrinal design emphasizes legal meaning, institutional design, and systemic coherence. It does not empirically test outcomes at the community level or measure administrative behavior across Indonesia’s diverse jurisdictions. Consequently, the findings speak to legal feasibility and structural alignment—what the Constitution and statutes require and how they are framed—rather than to sociological uptake or lived experience of recognition. Future research should combine this doctrinal map with empirical legal studies, socio-legal fieldwork, and participatory methods to assess implementation across different regions and resource frontiers, and to explore how MHA communities themselves perceive and navigate constitutional and statutory recognition.

Result & Discussion

Constitutional conditionality and differentiated lenses

In response to RQ1, the doctrinal analysis confirms that the Indonesian Constitution locates recognition of Masyarakat Hukum Adat (MHA, indigenous peoples) within three distinct normative pillars: governance (Article 18B[2]), human rights (Article 28I[3]), and culture (Article 32[1]–(2)) of the 1945 Constitution (UUD 1945). The governance pillar embeds conditional recognition: MHA are recognized only insofar as they (a) “still exist,” (b) are “in accordance with societal development,” (c) are “in accordance with the principles of the Unitary State,” and (d) are “regulated in legislation.” The human-rights pillar frames cultural identity and traditional community rights as human rights that must be respected, while the cultural pillar mandates the state to foster culture by guaranteeing people’s freedom to maintain and develop their cultural and linguistic heritage (C.o.t.R.o. Indonesia 1945)., Arts. 18B[2], 28I[3], 32[1]–[2]; see also (Simarmata 2006).

A key doctrinal finding from grammatical interpretation concerns the phrase “regulated in legislation” (diatur dalam undang-undang) in Article 18B(2), as opposed to the more common “regulated by legislation” (diatur dengan undang-undang) typically used to mandate the enactment of a single lex specialis. Terminologically, “regulated in” opens the possibility for implementation through a network of sectoral statutes—rather than waiting for one dedicated “MHA Act”—provided that those statutes contain sufficient substantive provisions to operationalize the constitutional conditions. This reading is consistent with Indonesian scholarly commentary that characterizes Article 18B(2) as establishing a model of “conditional recognition” inherited from earlier legal regimes and requiring further legislative concretization in ordinary and sectoral statutes (Simarmata 2006). This helps explain why, and on what terms, recognition can (and arguably should) be distributed across agrarian, forestry, water, energy, and investment regimes instead of being concentrated in a single framework law.

Within this configuration, the different constitutional “lenses” generate differentiated state responsibilities. Article 28I(3) demands the fulfillment, protection, and respect of MHA cultural and traditional-community rights as human rights; Article 32 positions the state as a facilitator of cultural ecosystems; while Article 18B(2) requires empirical verification of the “existence” of MHA and their compatibility with the principles of the unitary state before collective rights are fully operationalized. This differentiation corresponds to doctrinal mappings of the three provisions that highlight their distinct approaches—governance, rights, and culture—and their respective formulations of state obligations and conditions (Simarmata 2006). It provides a benchmark for assessing whether sectoral regulation has consistently translated constitutional commitments into operative rules and procedures, or whether constitutional recognition remains unevenly implemented across domains. Jurisprudence: criteria and the status of hutan adat

Addressing RQ1 and RQ2, Constitutional Court jurisprudence fills in the details of the “actual existence” test and the scope of customary territorial rights (hak ulayat). In Decision No. 31/PUU-V/2007, the Court set out indicators for when MHA can be considered to “still exist” under Article 18B(2). A community qualifies where there is: (i) a sense of group identity (in-group feeling), (ii) a functioning adat governance structure, (iii) adat property or assets, (iv) a body of customary norms, and, for territorially based communities, (v) a specific customary territory. The same decision indicates that the requirement of being “in accordance with societal development” can be reflected in recognition through general or sectoral legislation (including regional regulations), so that the focus is not on “original” genealogical purity but on the continuity of adat practices and institutions (C.C.o. Indonesia 2007d).

Decision No. 35/PUU-X/2012 further clarifies the legal position of customary forests (hutan adat), holding that they are not part of state forests. As a result, state control over forests must respect MHA rights that “still exist,” are “in accordance with societal development,” and are “regulated in legislation.” The Court declared key provisions of the Forestry Law conditionally unconstitutional unless interpreted so as to recognize and protect the rights of MHA, and normatively separated hutan adat from the previously undifferentiated category of state forest (C.C.o. Indonesia 2012c).

Our reading of the decisions, together with subsequent doctrinal commentary, suggests an important interpretive nuance: the conditions in Article 18B(2) are not treated as rigidly cumulative in the sense that failure to satisfy one element automatically negates recognition. Rather, the Court appears to treat them as an integrated set of criteria that can be demonstrated through credible administrative and empirical processes—identification, verification, and formal designation of MHA and their customary territories—without requiring a single, exhaustive checklist to be met in identical fashion in every case (Simarmata 2006; C.C.o. Indonesia 2007b, 2012c).

Taken together, these decisions provide a normative and methodological “toolkit” for sectoral and subnational authorities. They supply: (i) criteria for assessing the existence of MHA, (ii) guidance on calibrating the relationship between hak ulayat and licensing, and (iii) a doctrinal basis for overcoming legacy categorizations (such as treating all forests as state forests) that obscure the bundle of adat rights. They also imply that legislators and regulators should treat Constitutional Court jurisprudence as a central reference when designing recognition schemes and integrating them into positive law, particularly in sectors where concessions, permits, and spatial planning directly affect adat territories. 

International alignment and operational gaps

With respect to RQ2, the findings indicate that Indonesia’s constitutional architecture is, de jure, broadly compatible with international standards on indigenous peoples, but that this compatibility is contingent on operational design. ILO Convention No. 169 (1989) explicitly abandons the integrationist stance of ILO Convention No. 107 (1957), entrenching self-identification, rights to lands and resources, and meaningful consultation. UNDRIP similarly sets minimum standards for the fulfillment, protection, and promotion of indigenous rights, including state obligations to communicate and consult where decisions affect indigenous territories and resources ((ILO 1989b, 1957); (Nations 2007)).

Doctrinally, Articles 18B(2), 28I(3), and 32(1)–(2) can be interpreted in harmony with these instruments, particularly if the conditions in Article 18B(2) are operationalized through clear procedures, due process in the identification–verification–designation of MHA and their territories, and participation mechanisms that are aligned with free, prior, and informed consent (FPIC). Under such an interpretation, conditional recognition could function as a structured gateway to robust protection rather than as a barrier, in line with the shift from integration to self-determination in international indigenous-rights law (ILO 1989b; Nations 2007).

However, the analysis of sectoral legislation reveals significant operational gaps. In the electricity sector, for example, the Electricity Law acknowledges tanah ulayat (customary land) and requires disputes to be settled with due regard to local adat law, but the statute and its implementing regulations provide little guidance on crucial questions such as evidentiary standards, the form of consent, sanctions for non-compliance, and accessible grievance mechanisms (see Law No. 30 of 2009, Art. 35[6]). Similar patterns appear in other sectors: references to adat rights are often framed in general terms without being accompanied by detailed procedures, institutional responsibilities, or enforcement tools, reproducing what Indonesian commentators identify as “recognition with conditions but without clear implementation pathways.”

Viewed through Lowenstein’s triad of normative, nominal, and semantic constitutionalism, these gaps indicate that, in many domains, constitutional recognition remains at risk of being nominal—written but not behavior-shaping—or even semantic, operating primarily as a legitimating reference rather than as an operative constraint (Lowenstein, 1957). Our doctrinal mapping suggests that movement toward a more normative status tends to occur where three elements are present simultaneously: (i) clear and justiciable procedures for identifying and verifying MHA and their territories; (ii) consolidated, cross-sectoral due process for consultation and participation at key decision points; and (iii) remedies—administrative, civil, or constitutional—when collective rights are violated. Where these elements are absent, the constitutional promise of recognition is vulnerable to being subordinated to investment-driven policy priorities and to remaining “binding in text but not in practice” (Lev 1978; Wheare 1963).

1. Investment trajectory and the narrowing of customary space

Responding to RQ3, the historical–comparative analysis shows that Indonesia’s investment trajectory has systematically narrowed, though not extinguished, the operational space for customary rights. From the early New Order onwards, investment legislation promoted resource-based industrialization and centralized licensing authority, embedding a growth-first paradigm in positive law (Lev 1978; Tamanaha 2006). The 1967 Foreign Investment Law and the 1968 Domestic Investment Law opened significant room for large-scale capital in extractive sectors, encouraging the state to coordinate extensive land and resource concessions under a centralized administrative model (R.o. Indonesia 1967a, 1968; Lev 1978). Within such a policy paradigm, sectoral laws on land, forestry, water, electricity, plantations, and mining were drafted primarily to facilitate investment, with recognition and participation of MHA often treated as exceptions or qualifications rather than as structuring principles (Utrecht. n.d; Lev 1978).

The regulatory record exhibits a recurring pattern: hak ulayat is acknowledged, but often in explanatory provisions or in conditional clauses referring to its existence only “insofar as it still exists in reality” and “is recognized as such.” In the absence of uniform proof protocols and clear administrative duties, this formulation has generated implementation gaps in licensing and oversight, particularly where concession boundaries overlap with adat territories (Simarmata 2006; Y. Zakaria 2006). Before Decision No. 35/PUU-X/2012, the Forestry Law treated forests as state forests by default, with limited practical space for recognizing hutan adat; the default presumption of state forest facilitated concession-based management while pushing customary interests to the margins of administrative practice (Law No. 41 of 1999 concerning Forestry (Undang-Undang Kehutanan). 1999; Lev 1978). The Constitutional Court’s intervention reclassified hutan adat as distinct from state forests, thereby removing a key doctrinal obstacle; yet the effectiveness of this shift depends heavily on the capacity of local governments and sectoral ministries to conduct credible identification, verification, and designation of customary territories and to connect those designations to the licensing lifecycle (pre-license, operation, closure) (C.C.o. Indonesia 2012c; Safitri 2013).

Post-MK 35, some sectoral regulations have begun to include more explicit references to customary land and territories in operative provisions—for example, in agrarian, forestry, and village-governance regulations that recognize communal titles or adat villages as units of administration (Law No. 6 of 2014 concerning Villages (Undang-Undang Desa). 2014; Law No. 23 of 2014 concerning Regional Government (Undang-Undang Pemerintahan Daerah). 2014). Nevertheless, they frequently lack adequate procedural “tooling.” The electricity example mentioned above illustrates a statutory mandate to resolve issues on tanah ulayat “with due regard to local adat law” without specifying standards of proof, forms of consent, or administrative sanctions when obligations are ignored (Law No. 30 of 2009, Art. 35[6]). In agrarian practice, implementing regulations on communal land rights do create formal channels for the registration and certification of collective titles, but actual realization depends on budget allocations, the availability of participatory mapping expertise, and coordination between land administration (ATR/BPN) and other sectoral agencies, leading to uneven implementation across regions (Simarmata 2006; Safitri 2013).

At a deeper level, the agrarian foundations of Indonesian land law show that hak ulayat has long been “recognized” in national law but surrounded by stringent evidentiary requirements and broad “national interest” qualifiers. Locating key provisions on hak ulayat in explanatory sections or open-ended conditional clauses has produced wide variation in interpretation among agencies and jurisdictions—from progressive to minimalist applications (Harsono 2008; Simarmata 2006). These findings reinforce the conclusion that dispersing implementation “in” sectoral legislation (diatur dalam undang-undang) must be accompanied by administrative designs that standardize proof of the existence of MHA and their territories across sectors and throughout the licensing chain (C.C.o. Indonesia 2007d; Utrecht. n.d).

Overall, the investment trajectory has tended to narrow, though not erase, customary operational space: (i) during land-clearing phases, identification and consultation often occur ex post rather than ex ante; (ii) during operation, compliance with social–environmental responsibilities is frequently channeled through corporate social responsibility (CSR) schemes rather than through rights-based recognition and enforceable participation; and (iii) during closure or post-mining phases, mechanisms for restoring or compensating collective rights are not consistently available (Lev 1978; Safitri 2013). From a doctrinal standpoint, these findings point toward three axes of reform, which are further developed in the Discussion section: (1) front-loading recognition of MHA and their territories prior to licensing, so that existence is established before rights-affecting decisions are made; (2) standardizing meaningful, FPIC-aligned participation across sectors and decision points; and (3) ensuring clear remedies—including compensation, territorial restitution, and licensing sanctions—when collective rights are violated. Such reforms are consistent with constitutional obligations under Articles 18B(2), 28I(3), and 32(1)–(2) and are compatible with the expectations articulated in ILO Convention No. 169 and UNDRIP (ILO 1989b; Nations 2007).

1. From text to practice: diagnosing the gap

Lowenstein’s triad of constitutionalism—normative, nominal, and semantic—offers a powerful lens to explain why the constitutional promise of recognition for Masyarakat Hukum Adat (MHA, indigenous peoples) in the 1945 Constitution so often stalls at the level of practice (Loewenstein 1957). In a normative configuration, the constitution is not merely text; it effectively constrains and directs public power through institutions and procedures. A nominal constitution exhibits a persistent gap between das Sollen (what ought to be, as expressed in the text) and das Sein (what is, in practice). A semantic constitution uses constitutional language primarily as a tool for legitimating power rather than for limiting it—constitutional vocabulary operates more as political rhetoric than as a binding legal framework (Loewenstein 1957; Tamanaha 2006).

In Indonesia, recognition of MHA in Article 18B(2) is tied to four conditions: (a) the community “still exists,” (b) is “in accordance with societal development,” (c) is “in accordance with the principles of the Unitary State,” and (d) is “regulated in legislation.” As the Findings section showed, the terminological distinction between “regulated in legislation” (diatur dalam undang-undang) and “regulated by legislation” (diatur dengan undang-undang) is doctrinally crucial. It indicates that Article 18B(2) does not require a single, dedicated lex specialis on MHA, but allows recognition to be implemented through interconnected sectoral regimes (agrarian, forestry, marine, energy, investment, and so forth), as long as those regimes contain sufficient substantive and procedural provisions to operationalize the constitutional conditions (C.o.t.R.o. Indonesia 1945; Simarmata 2006).

In principle, this wording should enable recognition to “flow” through sectoral systems without waiting for an omnibus “MHA Law.” In practice, however, the sectoral apparatus often operates without uniform procedures for identifying and verifying MHA, while licensing and investment cycles proceed on the basis of administrative authority and sector-specific mandates (Lev 1978; Utrecht. n.d). The absence of standard operating procedures for identification, verification, mapping, and formal legal recognition produces compliance slippage: rights are acknowledged “on paper” but not institutionalized “on the ground.” Without institutional designs that make the constitutional conditions in Article 18B(2) measurable and reviewable—linking MHA status to concrete sectoral decisions such as licensing, spatial planning, and boundary determination—recognition risks remaining a textual promise rather than an effective norm (Loewenstein 1957; Kelsen 1992b).

A further source of tension lies in the interpretation of “in accordance with societal development.” In practice, this clause is sometimes read narrowly to justify narrowing the space for communal claims in the name of modernization or national development, rather than being read teleologically as a commitment to social justice and the protection of collective rights (Y. Zakaria 2006; Safitri 2013). Here, the human-rights pillar (Article 28I[3]) and the cultural pillar (Article 32[1]–[2]) should function as normative guardrails, ensuring that the test of “accordance with societal development” does not result in de facto denial of precisely those collective rights that the Constitution commits to recognize and respect (C.o.t.R.o. Indonesia 1945; Honneth 1995).

Taken together, these dynamics help explain why, despite a relatively progressive constitutional text, the status of MHA rights often hovers between nominal and semantic constitutionalism. The constitutional provisions are invoked, but without the institutional architecture—uniform recognition procedures, FPIC-aligned participation, human-rights due diligence, and effective remedies—needed to transform recognition into predictable administrative practice (Loewenstein 1957; ILO 1989b; Nations 2007). In Lowenstein’s terms, moving from nominal or semantic to normative constitutionalism requires that the triadic provisions on MHA become operative premises in sectoral decision-making, rather than residual references deployed post hoc to justify outcomes.

The bridging role of courts—and its limits

The Constitutional Court has played a significant bridging role between constitutional text and administrative practice. Decision No. 31/PUU-V/2007 is crucial because it articulates indicators of the actual existence of MHA—in-group feeling, adat governance institutions, adat property, adat norms, and (for territorial communities) specific territories—which can be operationalized as criteria for identification and verification (C.C.o. Indonesia 2007d). In doing so, the Court fills an operational gap left by the bare wording of Article 18B(2), which otherwise risks being read as a purely programmatic or symbolic provision (Loewenstein 1957).

Decision No. 35/PUU-X/2012 goes further by recalibrating the relationship between the state, forests, and MHA. The Court holds that hutan adat (customary forests) are not state forests and interprets key provisions of the Forestry Law in a manner consistent with the Constitution, such that state control over forests must respect MHA rights “as long as they still exist and in accordance with societal development and the principles of the Unitary State” (C.C.o. Indonesia 2012c). The concept of “state forest” can no longer be interpreted to subsume customary forests; doctrinally, this removes a major obstacle to recognizing adat territorial rights and underscores that constitutional guarantees in Article 18B(2) must be projected into sectoral regimes, particularly forestry and natural-resource governance (Lev 1978; Wheare 1963).

Yet the reach of constitutional jurisprudence is inherently that of bridge norms: it creates interpretive tracks, but implementing those tracks requires follow-on legislation, administrative guidelines, and bureaucratic capacity. Without systematic inventories of MHA, participatory mapping of customary territories, and formal mechanisms—such as regional regulations and national registries—integrated into sectoral decision-making (concessions, forest gazettement, spatial planning), the transformative potential of these decisions risks sedimenting as “judicial norms” that are difficult for frontline administrators to apply (Nations 2007; ILO 1989b).

In this sense, courts can realign the “rails” of interpretation, but the “policy train” must be coupled to those rails through implementing regulations, standard operating procedures (SOPs), and cross-sectoral accountability mechanisms—from forestry and mining to fisheries and investment. Absent that connection, constitutional guarantees remain vulnerable to reverting to the nominal or semantic status described by (Loewenstein 1957), with progressive case law operating in parallel to, rather than within, everyday administrative routines.

Politics of law and investment cycles

A politics-of-law perspective helps explain why doctrinal and administrative designs oscillate between recognition and restriction. Politics, as the independent variable, historically shapes positive law and embeds developmental objectives in sectoral legislation (Utrecht, 1960s/1970s). During the New Order, a growth-first orientation prioritized stability and rapid capital accumulation. This is reflected in investment laws and natural-resource policies that structurally constrained the operational space for communal claims, especially where land, forests, and minerals became primary inputs for development (Lev, 1978; Wheare, 1963).

The opening of investment through the 1967 Foreign Investment Law and the 1968 Domestic Investment Law, reinforced by TAP MPRS No. XXIII/MPRS/1966 on foreign capital and technology, signaled a strategic choice to mobilize external capital for natural-resource exploitation. These measures created a conducive climate for medium- and large-scale investors and marked a rapid increase in both domestic and foreign investment approvals during the late 1960s–1990s. Licensing and concession frameworks were then designed to facilitate large-scale access to land and resources, with the state acting as a central allocator. Within this configuration, sectoral licensing processes tended to move faster than recognition processes for MHA. Communities were often left to pursue case-by-case and ex post remedies—litigation, objections, or administrative complaints—at substantial cost and with uncertain outcomes (C.C.o. Indonesia 2012a).

This asymmetry between rapid licensing and slow recognition amplifies the risk that constitutional guarantees become nominal or semantic: they exist as background rhetoric but do not systematically shape the front end of decision-making (Loewenstein 1957). To realign investment governance with constitutional commitments and international standards, recognition and participation need to be integrated into the design of investment cycles, rather than being left as residual corrective mechanisms. This is where human-rights due diligence (HRDD) and FPIC-aligned consultation—already articulated in ILO Convention No. 169 and UNDRIP—become central (ILO 1989b; Nations 2007). These standards emphasize early identification, meaningful participation, and protection of indigenous lands and resources as conditions of legitimate development, not as afterthoughts.

Toward operational recognition: a reform agenda

Building on the diagnosis above, the discussion points toward a reform agenda with at least four interlocking strands to bridge the gap between das Sollen and das Sein (Loewenstein 1957).

1. Unifying recognition procedures (uniform recognition standards). The state should develop nationally uniform criteria, documentation requirements, and verification protocols as an operational expression of the Constitutional Court’s indicators of actual existence. The criteria articulated in Decision No. 31/PUU-V/2007—group identity, adat institutions, adat property, adat norms, and territory—could be translated into a standardized checklist binding on relevant ministries and local governments (C.C.o. Indonesia 2007d). This would reduce reliance on ad hoc, sector- or region-specific interpretations and make recognition decisions auditable and reviewable, consistent with both constitutional obligations and international practice on indigenous rights (ILO 1989b; Nations 2007).

2. Standardizing FPIC-aligned participation across sectors. UNDRIP’s emphasis on participation and consultation requires states to communicate with indigenous communities about decisions that affect their territories and resources (United Nations, 2007). Elevating meaningful consultation to a cross-sectoral procedural obligation—rather than a policy choice in selected regimes—would shift the burden from communities (who currently must “chase” licenses) to licensing authorities (who must demonstrate that consultation has been properly conducted and that consent, or at least broad community support, has been sought with credible grievance mechanisms in place). This is consistent with the shift in ILO standards from an integrationist approach (Convention No. 107/1957) to self-identification and robust consultation (Convention No. 169/1989), which strengthen rights to participation and to land and resources (ILO 1957, 1989b).

3. Accelerating inventories and legal formalization of customary territories. Participatory mapping efforts need to be synchronized with land and forest administration systems, the one-map policy, and the establishment of a national registry of customary territories. Crucially, these maps and registries must be linked to binding administrative decisions (for example, regional regulations on recognition, boundary determinations, or formal listings) that directly inform licensing and spatial-planning decisions. Otherwise, adat maps risk remaining informative but non-prescriptive and therefore easy to ignore. The post–MK 35/2012 distinction between hutan adat and state forests must be projected into administrative workflows—forest classification, tiered permitting, and monitoring—rather than remaining a purely doctrinal achievement (C.C.o. Indonesia 2012c).

4. Institutionalizing HRDD in the licensing cycle. Incorporating human-rights due diligence into each stage of the licensing cycle would require human-rights risk assessments at the project-planning stage, community-based mitigation measures (including benefit-sharing and grievance redress), and independent monitoring throughout project implementation. Normatively, such due diligence flows from the state’s obligation to respect, protect, and fulfill the rights of MHA, as highlighted in international instruments and national human-rights frameworks (Nations 2007; ILO 1989b).

From an investment-governance perspective, these strands are not designed to block investment but to reduce conflict risk and regulatory uncertainty that ultimately harm both communities and investors. The New Order experience demonstrates that liberalizing investment without an operational recognition architecture produces chronic friction in resource sectors, as seen in the escalation of concessions over land and forests following the enactment of the 1967 and 1968 investment laws. Aligning recognition with licensing in a front-loaded manner redistributes costs away from post-license conflict management toward ex ante compliance, thereby increasing project certainty while strengthening social legitimacy.

If implemented, this operational agenda would help shift the Constitution’s value from nominal or semantic toward normative (Loewenstein 1957). It would also restore law to its public function as envisioned in politics-of-law thinking: law as the crystallization of political choices oriented toward shared ideals, rather than as a mere instrument of particular groups (E. Utrecht 1960s/1970s). In this frame, recognition of MHA ceases to be a rhetorical commitment confined to preambles and isolated clauses; it becomes a procedural infrastructure that is binding, reviewable, and measurable across the entire policy cycle (Honneth 1995).

Constitutional Court decisions provide essential bridge norms—distinguishing hutan adat from state forests and articulating benchmarks for the existence of MHA—but the realization of these norms depends on implementing regulations and robust cross-sectoral coordination. Without such follow-through, Indonesia risks perpetuating a paradox of “recognition in text but restriction in practice,” a pattern that gradually erodes confidence in the Constitution as higher law (Loewenstein 1957; Lev 1978). Reversing that paradox—by embedding recognition in the everyday routines of governance and investment—is a necessary condition for closing the implementation gap between constitutional promise and legal reality.

Conclusion

This article has shown that the 1945 Constitution provides a strong yet conditional basis for recognizing Masyarakat Hukum Adat (MHA) through its governance, human-rights, and cultural pillars. Constitutional Court decisions—especially 31/PUU-V/2007 and 35/PUU-X/2012—have clarified indicators of MHA’s “actual existence” and reclassified hutan adat outside the domain of state forests, offering important bridge norms. However, in the absence of clear procedures, institutional mandates, and integration into licensing and spatial planning, constitutional recognition often remains nominal or even semantic rather than fully normative in practice.

The findings suggest that aligning Indonesia’s constitutional framework with international standards such as UNDRIP and ILO Convention No. 169 requires an operational turn: nationally uniform recognition procedures, FPIC-aligned participation at key decision points, reliable inventories and legal formalization of customary territories, and embedded human-rights due diligence throughout the licensing cycle. Properly implemented, these measures would not obstruct investment but reduce conflict, enhance legal certainty, and strengthen the social legitimacy of development. In that sense, making recognition work in practice is not only a matter of policy design, but a constitutional obligation to transform written guarantees into effective protection of indigenous peoples’ collective rights.

Acknowledgment

Not Applicable

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This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.

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