Almost three decades since the reforms rolled out, indigenous peoples in Indonesia are still waiting for the promise of the constitution that has not been fulfilled, namely full recognition and protection by the state.

Article 18B paragraph (2) of the 1945 Constitution of the Republic of Indonesia (1945 Constitution of the Republic of Indonesia) clearly states that “The State recognizes and respects the units of customary law communities and their traditional rights as long as they are alive and in accordance with the development of society and the principles of the Unitary State of the Republic of Indonesia, which are regulated in law.”

This is a progressive form of constitutional recognition. However, to this day, Indonesia does not have an Indigenous Peoples Law that serves as a national legal umbrella for the protection of their rights. This is where we face a constitutional law vacuum.

In the framework of legal theory, this kind of legal vacuum is referred to as rechtsvacuum or norm vacuum. According to Hans Kelsen (1967) in Pure Theory of Law, legal norms form a tiered system from the most abstract (constitution) to the most concrete (technical regulations). Thus, when the basic norm (constitution) has stated something, but is not followed by the implementing norms under it, there is an inequality in the legal system.

Indonesia currently does not have a specific law that serves as a national legal umbrella in regulating and protecting the rights of indigenous peoples. This legal vacuum poses serious problems in regulatory governance because although there are various laws and regulations at the level below the law—such as local regulations, ministerial regulations, and decisions of the Constitutional Court (e.g., Constitutional Court Decision No. 35/PUU-X/2012)—they are all partial, sectoral, and often uncoordinated. This creates overlapping norms and policy fragmentation in the implementation of protection for indigenous peoples.

The absence of comprehensive laws also causes the formation of a regulatory hierarchy that is in accordance with the principles of Hans Kelsen’s Stufenbau Theory, where lower legal norms must be sourced and must not contradict higher legal norms.

In the context of the Indonesian legal system, this principle has been adopted normatively in Law No. 12 of 2011 concerning the Establishment of Laws and Regulations (as last amended by Law No. 13 of 2022), which affirms the importance of integration and harmony between regulations in the hierarchical structure of national law.

This regulatory inconsistency not only hinders the recognition and protection of indigenous peoples, but also has the potential to create a legal conflict between local norms and national norms. On the one hand, indigenous peoples often get recognition through local regulations or regional head decisions, but on the other hand, these recognitions become weak or even unrecognized when they clash with investment interests, forestry sector policies, or mining that are based on other national regulations.

Satjipto Rahardjo (2006) in Progressive Law: Liberating Law refers to the legal vacuum as a challenge that must be answered creatively and in favor of substantive justice. If written law is not yet present, then sociological and moral approaches must be a temporary guide in making decisions.

Interpretation of MK 35/2012 vs Law Legislation: Which One Protects?

The Constitutional Court (MK) has indeed made a progressive decision, such as in the Constitutional Court Decision No. 35/PUU-X/2012 which states that “customary forests are no longer part of state forests.” This decision is a form of teleological constitutional interpretation, namely interpreting the Constitution based on the spirit of justice and recognition of rights.

In theory, the constitutional law vacuum can be filled in two ways: the interpretation of the constitution by the judicial institution and the formation of laws by the legislature. However, in the case of indigenous peoples, the Constitutional Court decision 35/2012 is only translated sectorally and partially in several laws and regulations, ministerial regulations, and district/city regional regulations (Perda), there is no national legal umbrella that specifically and explicitly regulates in the form of laws that can provide positive legal protection and certainty.

De jure what is needed is a special law legislation on indigenous peoples that will translate and regulate the definition, rights, institutions, and spatial planning of indigenous peoples. The legislation on indigenous peoples should be a regulation that protects and regulates comprehensively and explicitly into the most concrete rules according to Hans Kelsen above so that it becomes the umbrella of national law.

The protracted delay in the ratification of the Indigenous Peoples Bill shows the inconsequent power of the legislature and the executive government to respond seriously to this issue.

Legal Vacuum: Urgent Indigenous Peoples Law Passed

As long as the legal vacuum is left unchecked, indigenous peoples continue to be in a position of sustained vulnerability. Without explicit legal protections, they are easily criminalized, their customary rights are violated, and their living space is sacrificed in the name of development. This is not only a legal issue, but also a matter of justice and human rights.

We see various agrarian and environmental conflicts that occur in many customary territories. The absence of the embodiment of the 1945 Constitution of the Republic of Indonesia article 18B paragraph (2) through special and explicit laws, makes many indigenous peoples’ rights lack certainty and legal protection, resulting in criminalization and deprivation of customary territories. In fact, the rights to land, forests, and natural resources are an integral part of the indigenous people’s life system.

Data from the Alliance of Indigenous Peoples of the Archipelago (AMAN) shows that over the last 10 years (2014-2024) there have been 11.07 million hectares of customary territory that have been confiscated, around 687 explosions of agrarian conflicts in customary territories involving indigenous peoples, 925 cases of indigenous peoples have been criminalized, 60 of them have experienced acts of violence from state officials, and 1 person has died. Not only that, the latest data from AMAN in 2025 the number has increased, during January to June there were 120 cases of violence and deprivation of customary territory, there were 25 indigenous warriors criminalized. The territorial dispossession and criminalization mentioned above is a crisis and alarm for the recognition and protection of indigenous peoples.

For example, the following two cases show how legal vacuums often lead to the criminalization of indigenous peoples;

First, the case of Sorbatua Siallagan, a traditional elder from the Ompu Umbak Siallagan community in North Sumatra. In 2024, he will be sentenced to two years in prison for allegedly “breaking through and controlling” a concession forest area owned by PT Toba Pulp Lestari (TPL). In fact, the land he defends is customary territory that has been managed for generations, long before the state granted concession permits to the company. The Medan High Court then overturned the previous verdict and sentenced Sorbatua not guilty. However, the public prosecutor still filed an appeal to the Supreme Court. Only on June 13, 2025, the Supreme Court ruled that Sorbatua was indeed innocent, while upholding the High Court’s decision. Unfortunately, this decision does not erase the fact that Sorbatua has been in prison for seven months—a bitter experience that reflects the criminalization of the law and the weak protection of indigenous peoples’ rights.

Second, a similar case occurred in Central Kalimantan. On March 25, 2025, the Head of Tempayung Village, Syahyunie, was sentenced to six months in prison for leading his residents to reject the expansion of oil palm land by PT Sungai Rangit. The area defended is customary land that is the source of livelihood for the indigenous community in the village. The act of rejection and mortization carried out by indigenous people is part of the protest over the inequality of land management and the demand for plasma distribution. The act of refusal was actually retaliated with criminal snares. Meanwhile, the state seems to be more on the side of corporate interests than protecting the rights of indigenous peoples.

These two cases are only a small part of the many conflicts and problems of indigenous peoples scattered in various parts of the archipelago. Too often, indigenous peoples are expelled from their own lands without a fair protection mechanism. This inequality in legal protection underscores the urgency of the presence of a national law that comprehensively recognizes, protects, and respects the rights of indigenous peoples.

The existence of a special law on indigenous peoples is a constitutional urgency as well as a juridical necessity. Without the presence of this law, the state has failed to carry out the order of Article 18B paragraph (2) of the 1945 Constitution in its entirety, and left indigenous peoples in a condition of continuous legal vulnerability.

Filling the Legal Void, Upholding Justice

Urging the existence of the Indigenous Peoples Law is a matter of the state’s consistency with the constitution that is the foundation of the state. This is a moral, political, and legal obligation. Indigenous peoples are not communities that ask for pity, but groups that deserve justice. Even when we try to look back, indigenous peoples existed and lived in remote parts of the archipelago long before the Indonesian state itself was proclaimed.

Efforts to present the Indigenous Peoples Law have actually lasted for almost two decades. In the book AMAN Two Decades: Fighting for Rights, Fighting for Pluralism. Written by Savitri, L. A., et al. (2022). Explained that the Resolution of the 2nd Congress of Indigenous Peoples of the Archipelago (KMAN) in 2003 implemented by the Alliance of Indigenous Peoples of the Archipelago (AMAN), along with the results of consultations in seven AMAN regions in 2005, affirmed the results to urge the Government and the House of Representatives to ensure the form of recognition desired by indigenous peoples in the form of the Indigenous Peoples Bill.

In 2010 the draft of the Indigenous Peoples Law was submitted to the House of Representatives for the first time and during the 4th Congress of Indigenous Peoples of the Archipelago (KMAN) in Tobelo in 2012 it was symbolically handed over directly to Marzuki Alie who at that time served as the Speaker of the House of Representatives of the Republic of Indonesia. Then in the process, a new round of upheaval in the legislation of the Indigenous Peoples Bill (RUU) on Indigenous Peoples has been included in the National Legislation Program (Prolegnas) since 2013.

The Indigenous Peoples Bill was included many times in the National Legislation Program (Prolegnas) in the following years, but it was never seriously discussed to be passed. Classic reasons such as “still needs to be studied” or “there is still a tug-of-war between sectors” are obstacles that indicate the weak political commitment and inconsequent of the state, in this case the Government and the House of Representatives, to the constitutional mandate and protection of indigenous peoples.

In a Public Discussion activity held by AMAN and the Coalition to Guard the Indigenous Peoples Bill in Jakarta, May 26, 2025 with the theme “12 Years of the Constitutional Court’s Decision 35 & the Urgency of the Ratification of the Indigenous Peoples Law” attended by Martin Manurung as Deputy Chairman of the Legislative Body of the House of Representatives of the Republic of Indonesia, Martin said that currently, the Bill on Customary Law Communities has been included in the 2025 Priority National Legislation Program (Prolegnas).

The Legislative Body (Baleg) of the House of Representatives of the Republic of Indonesia has reported the plan to discuss this bill to the leadership of the House of Representatives in April 2025. According to him, the Leader of the House of Representatives welcomed the plan and signaled that the discussion could begin immediately. According to Martin, the Discussion of the Substance of the Indigenous Peoples Bill in the House of Representatives will be pursued during the next session (Fourth Session of the House of Representatives for the 2024-2025 Session Year).

In principle, the urgency of the passage of this law will not only strengthen the legal position of indigenous peoples, but also strengthen the pillars of social justice, human rights, legal pluralism and the fulfillment of the state’s promise to protect the entire Indonesian nation and all Indonesian bloodshed within the framework of the Unitary State of the Republic of Indonesia. Now is the time for us collectively to collect the promise of the state as a constitutional mandate that must be immediately translated and manifested in the form of a national legal umbrella that truly recognizes, protects, and grants rights to indigenous peoples.

References:

• Alliance of Indigenous Peoples of the Archipelago (AMAN). (2024). Report on the Inventory of KonYik and Customary Territories 2014–2024. AMAN.
• Alliance of Indigenous Peoples of the Archipelago (AMAN) & Coalition to Guard the Existing Community Bill (May 26, 2025). Public Discussion Material Document “12 Years of Verdict
• Constitutional Court 35 Urgency of the Ratification of the Indigenous Peoples Law”. Jakarta.
• House of Representatives of the Republic of Indonesia. (2025). Priority National Legislation Program (Prolegnas) in 2025. House of Representatives of the Republic of Indonesia.
• Jimly Asshiddiqie. The Indonesian Constitution and Constitutionalism. Constitution Press, 2005.
• Kelsen, Hans. Pure Theory of Law. University of California Press, 1967.
• Kompas. (2025, March). Tempayung Village Head Syahyunie Sentenced to Six Months in Prison. Kompas.com.
• Constitutional Court Decision No. 35/PUU-X/2012 on customary forests.
• North Sumatra High Court Decision No. 123/Pdt/2024 (Sorbatua Siallagan).
• Decision of the West Kotawaringin District Court No. 45/Pid/2025 (Syahyunie).
• Satjipto Rahardjo. Progressive Law: A Law that Liberates. Kompas, 2006.
• Savitri, L. A., Larastiti, C., & Luth’, A. N. (2022). SAFE Two Decades: Fighting for rights, fighting for pluralism. Jakarta: Alliance
• Indigenous Peoples of the Archipelago (AMAN).
• Constitution of the Republic of Indonesia in 1945.

Author Profile

Hikmawan Pasalo is an activist on Indigenous Peoples’ issues, with a genealogical background from the Indigenous Peoples of Limbong – Rongkong, North Luwu, Tana Luwu – South Sulawesi.

Disclaimer: This article was written in Indonesia and has been translated by Google Translate. In case of dispute or discrepancy, the original language of the article should prevail.