Persons deprived of liberty (PDL) or prisoners/detainees maintain their right to vote unless they are convicted with finality. But how does the state fill in the gaps to ensure that all eligible individuals behind bars can exercise this right?
Writers: Beatrice Puente & Christoph Doncillo
Graphics: Dinho Medina
Editor: Paolo Mariano
The real names of the PDLs were withheld.
(April 25, 2022) – The visitation area was bare. Save for a few plastic chairs, several telephone cubicles with a glass divider, three windows, a table, and an air conditioner, it looked largely empty. A big black cloth covering a whole wall only made the space, which was smaller than a regular classroom, look even blander.
But here, two men perhaps felt free—even for just a few minutes—on a sunny but windy morning in March. The pounding noise of a jackhammer truck breaking slabs of concrete and the sharp grinding of a metal cutter continuously roared, as the fire station beside the building was being reconstructed.
“Gerry” sat on a plastic chair in a dimly lit corridor on on one side of the glass divider. He looked like he just got a fresh buzz cut. With sleepy eyes and a yellow uniform shirt, he positioned himself at a distance just enough to reach the white telephone that would connect him to the other side of the room.
It was a break from “Gerry’s” routine as a person deprived of liberty (PDL) at San Juan City Jail. Due to the restrictions brought by the COVID-19 pandemic, detainees have been unable to get visitors for the past two years. He admitted that the situation has been somber but understandable.
“Gerry,” 37, has been in jail for four years now due to a murder charge, but he looks forward to an important endeavor next month: The 2022 elections. A PDL under trial, he will cast his vote for the second time from jail. He’s eager to partake in what he considers a social responsibility.
“Bumoto ako hindi dahil sa gusto ko lang. Karapatan ng bawat Pilipino na bumoto o maghalal ng kandidato.”
Thousands of PDLs like “Gerry,” who have not been convicted with finality, will cast their ballots on May 9, including those with a pending trial, under trial, or awaiting judgment. While it’s their right, systemic hurdles have made it difficult to ensure that prisoners get to vote.
Breaking down
“Gerry” is just one of over 51,000 PDLs under the Bureau of Jail Management and Penology (BJMP) who are registered to vote in the 2022 elections, constituting 40% of the bureau’s total jail population. It’s significantly higher than the figures over the last four election years.
Chief Insp. Xavier Solda, the spokesperson of the BJMP, said not all PDLs under their watch registered to vote this year, possibly because they were newly transferred to jail facilities. Others may have been convicted recently so they had to be shipped to the Bureau of Corrections (BuCor) while some may have already served their sentence.
“Pero hindi nangangahulugan na porket mababa sa kalahati ng kabuuang bilang ng mga PDL na nasa pangangalaga ng BJMP ‘yung bilang ng registered voters natin, mababa na ito,” said Solda.
“Archie,” another detainee at San Juan City Jail, sounded anxious—embarrassed, even—as he revealed the charges he’s facing: Hostage taking, frustrated murder, and illegal possession of firearms, ammunition, and explosives. Sporting what also looked like a new buzz cut, the same yellow uniform shirt, and a lengthy physique, he sounded more assured when he talked about voting in the upcoming polls. It’s his first time.
“Bilang isang mamamayan, karapatan natin ‘yan at obligasyon natin na makaboto. Para makapili ng mga susunod na mga mamumuno sa atin.”
Almost 120,000 PDLs are under the custody of the BJMP in 470 jail facilities, as of May 2021. Three in four jail facilities are overpopulated as the average congestion rate has reached 392%.
Cebu City Jail, located in the most vote-rich province, has the highest number of registered PDL voters at 4,915, based on the records of the BJMP. In Metro Manila, Pasig City Jail tallied the highest total at 928. San Juan City Jail has 256 registered PDL voters—155 were added for this year’s elections—which is 100% of its jail population.
“Lahat sila (PDLs) ay ating nakumbinse dahil mismong Comelec (Commission on Elections) ang pinapunta natin dito para magparehistro sila. At isa tayo sa mga pinakanaunang kulungan na ang lahat ng PDL ay rehistrado,” said Senior Insp. Jose Marie Sabeniano, the warden of San Juan City Jail.
‘Good compromise’
Under Article 5 of the 1987 Constitution, Filipinos may exercise their right to vote unless “disqualified by law.” But it took years before the government and the Comelec made efforts to apply this to PDLs.
PDLs of the BJMP had their first chance to vote in jail in the 2010 elections after decades of what could be seen as a form of disenfranchisement. Those under the BuCor such as the New Bilibid Prison (NBP) were subsequently allowed to vote in the 2013 midterm elections.
In 2010, the Comelec released Resolution No. 8811, amended by Resolution No. 8859, to implement PDL voting in prisons, jails, and other detention facilities. It addressed the provision under the Omnibus Election Code that states voting cannot be done within the perimeter of a military or police camp or a prison compound. The resolution also authorized the creation of a committee on detainee voting and the establishment of special polling places.
Before this, PDLs had to obtain a court order that would allow them to temporarily get out of jail to register and go to a voting precinct on election day.
In 2012, the Comelec released Resolution No. 9371 to modify the rules in its earlier resolution, aiming to ensure better implementation of PDL voting.
But this did not go unchallenged.
In 2015, Atty. Victor Aguinaldo asked the Supreme Court to block the resolution due to some ambiguities. A year later, a temporary restraining order (TRO) was issued that still allowed PDLs to vote but only for national positions.
Atty. Emil Marañon, an election lawyer, said the legal question regarding the residence of PDLs was a major issue why local voting was discontinued. He said it’s unclear if the incarceration of PDLs in a detention facility constitutes a transfer of residence because they have no expressed intent to stay in that place.
“For example, you are from Iloilo and then you were jailed in Bilibid. The question is, is there a transfer of residence? Because you are held in New Bilibid Prison against your will because you have been sentenced. So, for all legal intents and purposes, your intent to return and your intent to settle is still with Iloilo, not with New Bilibid Prison,” explained Marañon.
While Marañon believes that the TRO was reasonable, he said it would be better if the Supreme Court could rule with finality regarding the petition, which remains pending.
“It’s a good compromise because they (PDLs) are allowed to exercise their right to vote, which is recognizing the International Covenant on Civil and Political Rights,” said Marañon. “Although that is somehow inconsistent too because supposedly, if you cannot vote locally, you cannot also vote nationally.”
He, however, stressed that PDLs should not be forced to vote if they don’t want to, noting that the law also allows the right to refuse to vote. He also did not discount the possibility that PDL voting might be politicized to sway local elections.
“Kung abusive ‘yung warden, ibebenta niya ‘yung votes sa mga politiko,” said Marañon. “We have no proof that it’s actually happening. But in the realm of possibilities, that is very possible.”
Senior Insp. Neil Buot, the deputy chief for legal operations of the BuCor, echoed Marañon’s sentiments.
“Ayaw naming mapulitika ang mga PDL. Kasi kung local, baka mamaya sabihin naman ng mga nanunungkulan, kung ayaw namin sa kanila, hindi namin sila (PDLs) pabobotohin. Baka magkaroon pa ng kulay,” said Buot.
Under appeal
PDLs who get convicted surrender their civil rights. That is part of their penalty as stipulated by the law. But under the Omnibus Election Code, they can still vote if they have a standing appeal.
“Rodolfo,” who’s detained at NBP, is one of them.
Clad in his orange uniform polo, his neatly pressed slacks as gray as his thinning yet well-kempt hair, a black watch on his left wrist, and exuding a peppy disposition, he looked more like a seasoned jail official than a long-time detainee in the maximum security compound with a pending murder case.
In a small blue-painted room, “Rodolfo,” 67, spoke earnestly as he recounted his experience as part of the first batch of PDLs from the state penitentiary who voted in the 2013 midterm elections. This year would be his fourth time voting from NBP, and he has maintained his enthusiasm.
“Gusto sana nila (inmates) magboto kaso ‘yung sentensyado na, hindi na puwede. Pero dahil mayroon akong pangalan (sa listahan ng eligible voters) at gusto ko (bumoto), nag-register ako,” said “Rodolfo” while clutching a small spray bottle of alcohol.
At NBP, at least 2,528 PDLs are expected to vote in the 2022 elections, only about 9% of its prison population at close to 29,000, as of March 10.
In the 2019 midterm elections, only 2,607 of the 5,232 registered PDL voters of NBP were able to cast their ballots. Supt. Jayferson Bon-as, the acting chief executive of the maximum security compound, said others were unable to vote because of the cut-off time of 6 p.m. It has been extended until 7 p.m. for the 2022 elections.
“Nag-prepare tayo ng contingency plan regarding dito sa eleksyon. Hopefully, rest assured na ‘yung 2,000-plus natin na voters, lahat makaboto,” said Bon-as.
Like in the BJMP, eligible PDL voters under the BuCor have encountered problems in establishing their residence, according to Buot. This has also been a factor in the meager turnout of actual votes.
“Ang problema kasi, ‘yung mga nakalaya na, ‘yung mga na-acquit, nakapagrehistro sila kay BuCor. Pagdating nila sa lugar nila, hindi sila makaboto,” said Buot, adding they have tried encouraging released PDLs to return to the BuCor—ideally without a criminal charge this time—so they can vote.
Access to information
But knowing how to vote is one thing, knowing who to vote for is another. Due to their limited liberties, PDLs mostly rely on television for updates on the outside world. Most jail facilities have a common area where prisoners share only one television. Viewing time is also limited to just a few hours each day.
While watching the news regularly would allow PDLs to make an informed choice, Bon-as said they don’t mandate prisoners to do so. It’s safe to assume that individuals who are dealing with lonesome confinement would rather watch telenovelas, variety shows, sports, and other entertainment programs as an escapist recourse.
“Bahala na sila kung anong gusto nilang panoorin,” said Bon-as. “Sapat naman ‘yun kasi ‘yung pagkakaroon ng TV, malaking tulong na sa kanila para makibalita kung anong nangyayari sa labas.”
Sabeniano said the BJMP issued a directive to encourage PDLs to watch the presidential and vice presidential debates.
“Even though they can watch TV, they don’t have access to the internet. So, in other words, kung TV lang ‘yan, passive ka. Whatever is shown on TV, ‘yun lang ‘yung matututunan mo,” said Marañon. “Maybe it needs to be studied more to lessen the deprivation in terms of access to information.”
Social media also introduced a drastic paradigm shift in how information is consumed. The erstwhile controlled news cycle has become an unstoppable train. Whether it’s a boon or a bane is subject to an entirely different debate. But what’s clear is that candidates have embraced social media as the new battleground.
PDLs, however, have very little to no access to the internet. For those handled by the BJMP, the internet is only used for online visitation. At San Juan City Jail, only two desktop computers are available for 256 detainees. Each PDL is only given five minutes per online visit, which is allowed daily except Monday. NBP has no online visitation, except for detainees in the reception diagnostic center.
Despite the limited time, “Archie,” 41, said he sometimes uses it to learn more about the 2022 elections.
“Nakakapagtanong kami sa mga pamilya namin, sa mga kamag-anak namin, sa mga kaibigan namin tungkol sa impormasyon sa mga kandidato,” said “Archie.”
The Samahan ng mga Ex-Detainees Laban sa Detensyon at Aresto (SELDA), an organization of political prisoners, said allowing candidates to personally campaign inside prison facilities might help improve voter information among PDLs. But allowing this comes with security risks, argued Marañon.
The BJMP and the BuCor also work with the Comelec for voter information drives, covering election rules, the voting process, and the proper shading of ballots, among other topics.
Courtesy: BJMP/San Juan City Jail
SELDA, however, stressed this is not enough.
“Nakakulong na nga sila (PDLs), deprived na sila ng iba’t ibang information, (kaya) ‘yung mga impormasyon na nararapat na ibigay sa kanila, kailangan issue-based,” said SELDA vice chairperson Danilo dela Fuente.
Marañon said the limitations to access to information are tied to the government’s resources. Based on the General Appropriations Act of 2022, the budget allocation for the BJMP is P21.3 billion, while the BuCor has P5.2 billion.
Marañon noted that civil service organizations may come in to fill in the gaps. But the BJMP admitted that the COVID-19 crisis has thrown a monkey wrench on the idea.
“As much as we wanted to tap different organizations to visit the jail facilities, there are still limitations because of the current pandemic situation,” said Solda.
Gang Badoy-Capati, the founder of Project: Steady Asia, which focuses on the wellness of different sectors, recognized the role of advocacy groups in assuaging the issues affecting PDLs. She has been working as a teacher and a trauma therapist in jail facilities since 2007, helping build a learning center at NBP.
“They’re not just a block of statistics of bad people. I think a lot of our criminals were failed by our society,” said Badoy-Capati.
“More focus must be given to the prison system because it’s part of a society’s climate of justice. It’s an indication of how we value justice.”
Locking in
Last March, the Comelec promulgated Resolution No. 10768 which set the guidelines for PDL voting in the 2022 elections. Consistent with past resolutions, it allowed for the creation of special polling places in jails and prisons. Multiple special polling areas are allowed depending on the voting population.
In the case of San Juan City Jail, which is also being renovated, three special polling places are expected since they have 256 PDL voters. Sabeniano said they plan to set them up on the rooftop, which is half the size of a basketball court.
“Magre-red alert kami niyan (sa eleksyon),” said Sabeniano, noting that they already conducted a dry-run. “We have 41-strong BJMP personnel in San Juan, and all of them will be deployed.”
Buot, meanwhile, said they are in close coordination with the Comelec, supplying the information needed to ensure PDLs at NBP can vote.
“We provide the number of PDLs, qualified voters, polling precincts, and how we are going to secure them. ‘Yung mga taga-Comelec na ang pupunta rito para pabotohin sila,” said Buot, who passed the most recent bar exam.
Jail facilities with a voting population of less than 50 PDLs would likely be allowed to have escorted off-site voting. For some of them, it might be a welcome respite from their cramped cells, albeit on borrowed time. In the 2019 midterm elections, more than 2,000 PDLs were allowed to vote outside, according to the BJMP, as cited in media reports.
“May coordination naman ‘yan sa courts at sa ating friendly forces, kasama na ang PNP (Philippine National Police) at AFP (Armed Forces of the Philippines), para ma-ensure ‘yung safety ng mga PDL,” said Solda.
Special electoral boards—composed of a chairperson, a poll clerk, and a member—are created for every special polling place. A support staff will be assigned for every cluster of voting centers catering to 50 PDLs, with extra personnel for every additional 100 voters.
Marañon underscored the important role of poll watchers in ensuring the integrity of the vote of PDLs, noting their “special circumstances.”
Bon-as said there were no poll watchers at NBP in the 2019 midterm elections, but teachers were present to facilitate the voting. Buot clarified that they allow poll watchers into the premises as long as they are accredited by the Comelec.
“Hindi naman puwedeng mapalitan (‘yung boto ng PDL). Irespeto lang natin kung ano ang choice ng PDL,” said Bon-as. “Wala namang (election violence). Kasama sa security natin ‘yan, i-assure natin ang safety nila (poll officials and watchers).”
Persisting stigma
Significant steps have been made in upholding the voting rights of PDLs, but how about those who have already been convicted with finality?
Under the Omnibus Election Code, individuals still serving their jail time of at least one year are disqualified. Those who are found guilty of rebellion and other subversive acts are likewise barred from voting “unless restored to his full civil and political rights in accordance with law.”
It would take five years from the completion of their sentence to have their right to vote restored.
Marañon said the decision to allow convicted PDLs to vote lies in the purview of Congress. In the past, there were moves to legislate the Prisoners Voting Act but it did not prosper beyond the committee level. Convicted persons, however, were still not covered by the proposal.
“We have to see it as part of the penalty for the convict,” said Marañon. “Before you committed a particular crime, you knew the consequence of getting deprived of the right to vote but you still chose to commit it.”
He, however, also noted the perspective of human rights in reviewing the issue.
“Sometimes, they are committing crimes not because they are criminals or because they are bad people but because they are victims of their circumstances. Some were forced to steal, some were wrongfully accused, and some have no access to good lawyers.
In case of doubt, I think we should tip the balance in favor of the right to vote of our PDLs.”
Jail officials believe that the resolutions issued by the Comelec to implement PDL voting are enough for now. Whether a measure will be passed that will allow convicted prisoners to vote, they trust that lawmakers know better.
They, however, also believe in equal opportunities.
“‘Yung boses ng mga kapatid natin na nasa loob ng mga bilangguan ay kapareho lamang ng mga boses ng mga kababayan natin na nasa laya—parehong mahalaga,” said Solda.
Democracy at work
The telephone line was sporadically breaking up. A jail guard had to fix it several times. But as “Archie,” “Gerry,” and “Rodolfo” fully know by now, things don’t always work smoothly. But while they and their fellow PDLs made regretful decisions, that doesn’t mean they cannot fix themselves and avoid falling through the cracks.
Part of their rehabilitative process in the prison system is knowing they’re still part of society. Having the right to vote is a major indicator of that.
“Hindi naman siguro ibig sabihin na porket mga PDL kami ay wala na kaming silbi. Siguro naman kahit sa ganitong paraan man lang, magkaroon kami ng kontribusyon sa lipunan,” said “Archie.”
Marañon said it is incumbent upon the legislators and institutions to ensure PDLs have full access to their rights and that policies are revised and improved. The government, jail officials, the Comelec, and other stakeholders must embolden PDLs to avoid disenfranchisement.
But national candidates in the 2022 elections—the very people PDLs will vote for in hopes of improving their already dire situation—have remained largely tight-lipped on implementing reforms in the prison system.
“Sana kung sino man ‘yung mahalal na magiging lider ng ating bansa, sana magampanan niya ‘yung trabaho niya,” said “Archie.” “Sana isipin niya palagi kung ano ‘yung nakabubuti para sa karamihan.”
While they are all looking forward to casting their votes, they recognize that the stigma against PDLs remains. Still, having a say in picking the country’s next leaders gives them hope.
“Bale 17 years na ako (rito),” said “Rodolfo,” who has supported his wife and their three children by selling ice candy within NBP. “Sana nga ay matapos na rin para habang may natitira pa akong lakas ay mabigyan ko pa ng (oras) ‘yung mga pamilya ko.”
Many Filipinos might still find it hard to view imprisonment as a rehabilitative measure rather than a punitive consequence. Buot said the negative mindset may be hard to change but he believes that the correctional process in the penitentiary could help PDLs reintegrate into society.
“By securing them, magagawa namin ‘yung reformation program. Doon lang namin maipapakita kung papaano namin mababago ang ating mga PDL na sana tanggapin din ng malayang lipunan na hindi lahat ng mga nakulong ay totoong may kasalanan,” said Buot.
While the number of registered PDL voters in the 2022 elections could’ve been higher, Marañon stressed that “free will and the question of agency” should be the foundational considerations.
“Ayaw rin nating mangyari na we are compelling them (to vote) because we want to get a good number na masarap pakinggan sa tenga, na ang daming botanteng PDLs. It doesn’t work that way. Democracy doesn’t work that way,” said Marañon.
Improving the prison system may seem arduous but Badoy-Capati said efforts wouldn’t go to waste.
“BJMP, BuCor, and civil society must accept that there is a lot of work to be done. Pero ‘pag trinabaho natin ‘to, lalo na ‘yung participation nila (PDLs) sa pagpili ng pinuno, I think it’s worth the effort. Because that’s exactly what makes us a country that’s for freedom, a country that’s democratic, a country that tries very hard to treat each other equally,” said Badoy-Capati.
While PDLs don’t have many liberties, the right to vote is still theirs.
“Although may kasalanan kami sa batas, hindi ‘yun rason o hadlang para hindi kami bumoto,” said “Gerry.” “Tao pa rin kami.”
Editor’s note: The Comelec was sought to comment but it has yet to respond to a new interview schedule. The story will be updated once it does.
