Justice Delayed: Piecing Together Protection Measures for Environmental Defenders in the Philippines

Augusto B. Gatmaytan^*

• Ateneo de Davao University, Davao, Philippines

On the night of 22 September 2024, Alberto Cuartero was gunned down while attending a celebration in Madrid, Surigao del Sur province, southern Philippines. Observers linked his murder to Cuartero's opposition to Tribu Manobo Mining Corp. (Mangadlao 2024). This case underscores how, for over a decade, the Philippines has been the most dangerous country to be an environmental defender in Asia (Global Witness 2024). Over the years, the Philippines has consistently been a hotspot for violence against environmental and land defenders. A report by the Philippines' Commission on Human Rights outlines the fraught political and legal landscape that human rights and other defenders are forced to traverse in pursuit of their advocacies (Commission on Human Rights 2020). Global Witness notes that the country has, for more than a decade, been the most dangerous for environmental defenders in Asia (2024). To note, the statistics on which this that statement is based probably errs on the conservative side, because there are likely more killings of defenders than have been are probably under-reported (see Sinclair 2020: 102-103); and because other, non-lethal but nonetheless terrifying or distressingrepressive forms of human rights violations (HRVs) suffered by defenders, their families or communities are ignored or underappreciated (see Wilson 2009). Among other things, such aThis situation reflects the inadequacy of legal protections for environmental defenders in the country (Commission on Human Rights 2020). I would suggest that such athe long-standing failure to defend environmental defenders in general, and to provide them adequate legal recourse in particular, operates as an implicit bias in favor of mining and other extractive industries, vis-à-visand against the defenders campaigning against them. This does not meanis not to say that environmental defenders in the Philippines do not have any no legal protections at all. They could file criminal, civil or administrative 1 This paper is based on research funded by the Swiss National Science Foundation (FNS), whose generous support is gratefully acknowledged.charges against the persons identified as responsible for violating their rights. Unfortunately, and despite on-goingcontinuing efforts at institutional reform, much of the Philippine judicial system is seen by the public as slow, complex to the point of opacity, costly in financial and other terms, inaccessible for victims in remote areas, and eminently corruptible. Indeed, my interviews with lawyers handling cases for defenders reveals that, rather than rely on these remedies, their 'go to' recourse is the Writ of Amparo, a summary judicial relief imported copied from Mexico and other jurisdictions in 2007 in response to a the rise in extrajudicial killings across the country (Supreme Court of the Philippines 2007). This Writ has been successfully invoked in several cases, though it has is not been without its critics, even early on (see NUPL 2011). My interlocutors note that its effectiveness depends in large partly on the political or legal views or values of the concerned judge; and that it is vulnerable to possible future constriction of its procedural rules. Given these conditions, it is no wonder that existing legal protections do not deter the commission of HRVs against defenders.It should also be acknowledgedFortunately, that progressive legislators or blocs have been filing and refiling legislative proposals bills for the increased protection of environmental defenders since the 2010s. Indeed, Philippine legislators might be laboring under the belief that law is a 'magic charm' (Von Benda-Beckmann 2002) that somehow solves all social problems, to which we will return to further below. At this point, I outline key findings of my review and analysis of these legislative proposals:1. Some of these proposals are tangential to the issue of environmental and land defenders as a groupA few bills address issues that affect environmental defenders, as well as other actors working on other issues. For example, there are pending bills thatproposals to criminalize 'red-tagging' (publicly labelling actors as communists/ or terrorists, marking them out for intensified surveillance, harassment or violence), and the filing of SLAPP (Strategic Lawsuits Against Public Participation) suits, which would benefit not just environmental defenders but also activists working on other advocacies. While these proscribed practices are deployed not just against environmental defenders, the latter can benefit from such measures, should these be promulgated as law in the future. More specifically for the mining sectorConversely, there are also pending bills that seek to amend the existing law governing mining in the country's mining law, by providing specific protections for communities and other actors contesting opposing the encroachment of mining operations. This would be helpful to defenders working on mining issues, but not those working, for example, on fisheries or plantations.2. Many of the pending proposals take the form of bills providing for the protection of 'human rights defenders'. There are quite a number of these bills, which have been filed and refiled over the yearssince the 2010s by progressive various legislators or blocs within the legislature, apparently without coordination with each other, suggestive of duplicated and inefficient efforts that may have delayed promulgation. This lack of coordination and resulting duplication of efforts helps explain why strengthening legal protections for defenders is taking so long. Worse, examination of the contents of these bills reveals that most of themthey strongly resemble each other, as they seem to bebeing closely patterned after the Model Law for the Recognition and Protection of Human Rights Defenders or MLRPHRD (ISHR, n.d.). This suggests that the multiplicity of these bills is indicative not ofdoes not reflect substantive significant differences in the legislators' legal approaches to the problem of protecting 'human rights defenders', but of rather the political rifts within their ranks of progressive legislators.3. The category 'human rights defenders' needs critical reappraisal. At stake here are issues of inclusivity and representation, and the relations of power that undergird negotiations over inclusion and exclusion in legal categories. Many local actors I encountered in my research on violence against defenders do not see themselves as 'human rights defenders'. Rather, they describe themselves as farmers protecting their livelihoods, indigenous people defending their territory, or local leaders safeguarding their constituents. The leap from these locallyanchored identities to the abstract category of 'human rights defenders' is not one that individual or collective actors necessarily take; and indeed one they should not be compelled to take. There is representational violence in having one's selfidentification or one's understanding of their own agency implicitly rejected and altered by, of all things, a law for 'human rights defenders' (following Verweijen, et al. 2021). This doubt about the appropriateness and inclusivity of this term seems to be shared by some legislators, who tried to modify the MLRPHRD's core definition of 'human rights defenders' by adding provisos that explicitly place environmental defenders, among other activists, within the scope of this rubric.4. In any case, the Those bills that seek to protect 'human rights defenders' mainly substantively consist of a list of specific rights accorded to 'human rightsthese defenders', and of a list of obligations on the part of the state to recognize enforce those same rights. This focus on rights and the criminalization and prosecution of violations of those rights frames the legislative response to human rights violationsHRVs as penal and punitive in nature.To date, none of these proposals have been promulgated into law. The fact that more than ten years of legislative initiative and struggle has borne so little fruit underscores the disinterest, if not hostility, of the legislature as an institution, and by extension, of the Philippine state itself. Moreover, this unfortunate delay in addressing the issue represents the denial of justice to defenders whose human rights have been violated who suffered HRVs as a result of their advocacy. One comment on the bills for the protection of 'human rights defenders' is its very subject: Who are these 'human rights defenders'? This question goes to the issues of inclusivity and of representation, and the relations of power that undergird negotiations over inclusion and exclusion in legal categories. To note, local actors I have encountered in the course of researching violence against environmental defenders rarely see or understand themselves as 'human rights defenders'. Rather, they present themselves as farmers protecting their livelihoods or legacy, indigenous community members defending their territory or separate properties, local leaders safeguarding their communities or constituents, residents conserving the surrounding environment or landscape, etc. The leap from these locally-anchored identities to the more abstract category of 'human rights defenders' is not one that individual or collective actors do not necessarily take; and indeed one they should not be obligated to take. I submit that there is representational or categorical violence in having one's self-identification and one's understanding of their own agency implicitly rejected and altered by the act of invoking a law for 'human rights defenders'. To note, this unease over the appropriateness and thus inclusivity of the term 'human rights defenders' seems to be shared by some Philippine legislators, who have sought to modify the core definition of 'human rights defenders' provided by the MLRPHRD by adding provisos that explicitly placing environmental and land defenders within the scope of this rubric.Taking off from the apt observation that labels such as 'environmental defenders' are 'loaded' and thus problematic (Verweijen, et al. 2021), this issue of representation is particularly crucial when considering ethnicity as a variable in resource conflicts. The implicit rejection of indigenous identities and understandings encoded in apparently noninclusive categories such as 'human rights defenders' reiterates and renews the colonial experience of state non-recognition of indigenous identities and rights to land and resources (Blomley 2003), even when-as in this case-it is ironically couched in terms of the protection of human rights. The bills' emphasis on defenders' rights and the state's obligations, noted above, is again a reflection of a punitive legal approach to the issue of protecting human rights-and environmental and land-defenders. I argue that this the bills' punitive approach to protecting defenders carries the risk of decontextualizing the violence inflicted upon environmental and land defenders, in particularthem. By framingFraming the legislative response to such violence in terms of criminal prosecution, it shifts the focus onto identified individual perpetrators of what are now legally re-presentedseemingly as isolated criminal acts, and away from the presence and machinations of extractive industries and their allies in government, who underwrote and or otherwise enabled the violence in the first place. Any violence is thus minimized in the sense that the broader and deeper political and historical context of conflict over resource rights is rendered irrelevant in any case filed in response to human rights violationsinvolving HRVs, and legal protection is reduced to the question of whether or not a specific defendant committed a specific criminal act.Here we turn to the literature, to see that Lawlor has linked killings of defenders are linked to the wider context where threats against them are made, arguing such that taking action against vilification and threats, which renders them more vulnerable to attacks, helps prevent killings (Lawlor 2020: 20). Killings and threats-or reprisals and intimidation, in the language of the MLRPHRD-should thus not be seen in isolation from each other, but as the synergistic actions of a 'security architecture' (Baron, et al. 2019, cited in Huff andOrengo 2020: 4), featuring varying combinations of both 'hard' (e.g., surveillance, threats and physical violence) and 'soft' (e.g., corporate social responsibility, public relations) approaches to achieve the social engineering ofextracting consent to extraction (Dunlap 2019: 11-14). Indeed, Brock and Dunlap speak of 'corporate counterinsurgency' in their discussion of the 'techniques and strategies deployed against [defenders]', calling for a 'practical and analytical reassessment of corporate and governmental activities that aim to socially ''engineer'' political terrain to manufacture consent' (2017: 35). Phenomenologically, the impact of this counterinsurgent security architecture is experienced by defenders as a 'deep sense of insecurity' resulting from constructed 'atmospheres of violence', ; which refers to the 'assemblages of actors, institutions, logics, processes, and materialities characterized by pervasive and persistent forms of violence' deployed by extractive enterprises in their contests with environmental or land defenders (Menton, Navas and le Billon 2021: 51).The key insight drawn from these studies is that some mining and other extractive corporations, in specific contexts and conditions, emplace and employ this architecture, infrastructure, apparatus, machinery, assemblage, program, context or atmosphere of violence (and non-violence) to engineer local consent. It is this counterinsurgent architecture that establishes a broad pattern of surveillance and intimidation within which Formatted: Don't add space between paragraphs of the same style the dire possibility and probability of violent reprisal is implanted folded into local day to day life. Through this approach Using this insight, seemingly separate isolated acts of violence against environmental defenders aredefenders are re-located within a broader analytical context that links them together, and to the corporate and governmental actors that directly and indirectly benefit from the implementation ofsuch a program of intimidation and reprisal. Thus, instead of addressing violence against defenders one separate case of intimidation or reprisal at a time, this criminal conspiracy to construct consent should be the focus of sociological analysis, public dialogue and debate, and political engagement.Moving Forward I contend, finally, that instead of addressing violence against environmental defenders one separate case of intimidation or reprisal at a time, it is this criminal conspiracy to construct consent that should be the focus of sociological analysis, public dialogue and debate, and political engagement.To that end, bills seeking to protect human rights and other defenders could be amended to include the criminalization of Legally, this would mean exploring approaches to criminalize the establishment, maintenance and implementation of a security architecture intended to engineer consent through the violence and intimidation of 'hard' approaches, with or without accompanying 'soft' or non-violent approaches. One possibility is to adapt the concept of criminal conspiracy or organized crime, and deploy it against extractive corporations that rely totally or partially on intimidation and/or reprisal to 'secure' community consentto contexts of resource or other social conflict. Another is to flip the script, as it were, and treat what Brock and Dunlap (2018) describe as 'corporate counterinsurgency' as a project and product of corporate terrorism. There are, it is hoped, other possibilities that can be explored. Concretely, everything begins with lobbying legislators and their staff, so that they integrate the ethnographically-grounded learnings from social science cited above (see also Verweijen and Dunlop 2021;Granovsky-Larsen 2023;Selby, et al. 2024;Jespersgaard, Marin-Lopez and Zapata 2025) into their efforts to extend legal protections for defenders. The point is that we need an ethnographically grounded, systemic and holistic approach to violence against environmental defenders, which suggests there is a need for expanding academic attention to this broader legal dimension of land and environmental conflicts.In a sense, this measure sidesteps the debate over the economic, regulatory and ethical dimensions of mining. While all mining companies seek to win the 'hearts and minds' of local communities and thus secure their consent, not all of them deploy violence to do so. It is only a given company's resort to intimidation and reprisal-whether or not Formatted: Line spacing: Multiple 1.15 li complemented by 'soft' measures like scholarships or livelihood projects-that invites prosecution; it is their use of violence, and not the mining industry itself, that is the target of this proposal.It may be useful to conduct comparative studies of violence against environmental defenders in other countries in Southeast Asia and beyond, assessing the viability of criminalizing the use of violence in corporate counterinsurgency therein, and exploring the legal mechanisms by which this might be achieved. The conversations this may engender could reinforce or modulate the idea of criminalizing corporate counterinsurgency.Perhaps Philippine legislators-and by extension, the authors of the MLRDHRD-labor under the belief that law is a form of 'magic charm' (Von Benda-Beckmann 2002) that can be invoked in response to society's crises or problems. Butt, et al. (2019: 743) however, underscore the strong correlation between violence against environmental defenders on one hand, and 'weak rule of law', on the other. These authors operationalize the term 'weak rule of law' as the confluence of corruption, lack of enforcement, and impunity, which together erode the sense of security of defenders, and constitute one identified driver of violence (Id.). Legislators and advocates should perhaps give increased attention to the institutionalization of the rule of law, rather than simply issuing more laws. This is not to say that legislative initiatives such as those described above are inutile in the ongoing battle against corporate and governmental intimidation and reprisalhave no use for environmental defenders. Certainly, the enactment of additional legal bases grounds for the prosecution of human rights violationsHRVs can only expand and diversity the legal options available to victims, thus enhancing tactical adaptability and resiliency in the face of threats and violence. Having said that, it should be clear that criminalization and legislation by themselves will not resolve the issue. Rather, they should be seen as just one component of a larger program of reforms, that among other measures, redefine the economic and environmental policies of the Philippines, and extractive industries' place within this system; institutionalize the rule of law and eradicate legal impunity; and wrest control of the legislative and executive branches of government from the elite, who continue to delay and deny justice to victimized environmental and land defenders.