Jurisprudential evolution and the protection of Indigenous collective property rights in ASEAN: international standards, national divergence and institutional capacity

Abstract

This article examines why the protection of indigenous collective property rights diverges across Indonesia, the Philippines, Malaysia, and Cambodia despite common international standards. comparing constitutional recognition, statutory tenure, judicial remedies, and administrative implementation, it identifies three pathways: statutory recognition constrained by implmentation (Philippines); constitutional/common-law recognition mediated by courts/executives (Indonesia, Malaysia); and communal titling constrained by conservation governance (Cambodia). Doctrinal recognition alone does not explain variation; outcomes depend on constitutional design, judicial access, administrative capacity, and political incentives. Indonesia’s Constitutional Court Decision No. 35/PUU-X/2012 exemplifies this gap—removing customary forests from state forests yet leaving communities dependent on prior governmental recognition and subsequent action. The article thus proposes context-sensitive reforms: enforceable FPIC where serious impacts are likely, accessible proof and titling, compliance mechanisms for judgments, and meaningful participation by indigenous communities, including youth, in land governance.