Local village chieftain Renie Lim was kept locked away in the Davao City Jail, barred from voting in the October 29 barangay elections in the Autonomous Region of Muslim Mindanao (ARMM) last year.
 
Lim, accused of killing his wife, asked the regional trial court to allow him to leave the jail and vote in the elections where he himself was a candidate. While he was able to seek re-election pending his conviction, strong opposition from the prosecution and porous security measures prevented him from exercising his right to suffrage.
 
The prosecution raised the red flag of possible escape, as they alleged that Lim could easily fight off his escorts from the Bureau of Jail Management and Penology (BJMP) and run towards his freedom.
 
Lim is not the only inmate who has been prohibited from leaving jail to vote because of fear that he would escape punishment for a vicious crime.
 
Alvarez Isnaji, mayor of Indanan, Sulu, was barred from casting his vote in the 2008 ARMM elections because releasing him from the Custodian Center in Quezon City would reportedly give him the chance to escape.
 
Isnaji, then a candidate for the gubernatioral race in ARMM, was implicated along with his son Haider, in the kidnapping of ABS-CBN reporter Ces Drilon and her staff last year in Sulu.
 
In the case of Lim, “it is bad economics for the court to allow government to spend and risk so much on a single vote especially that the accused was detained for the death of his wife,” the prosecution stated in its motion.
 
They argued that if Lim’s motion would be granted based on the principle of presumption of innocence, it would “mean allowing all such prisoners to exercise their right to vote every elections.” Consequently, the courts would be flooded with motions from thousands of inmates in the country every election period.
 
Private prosecutor Rene Alexis Villarente also dismissed Lim as no more than a hard-hearted felon: he is no Antonio Trillanes IV, the navy officer who led the Oakwood mutiny, or Nur Misuari, leader of the Moro National Liberation Front. Both were thrown behind bars for rebellion raps, but were allowed to cast their votes in the 2007 elections.
 
In a nutshell, Villarente said that Lim should not be permitted to go out and vote because he is accused of being a murderer, and not of being a freedom soldier.
 
Code vs. Constitution 
 
The 1987 Constitution, however, does not strip suspected murderers or freedom fighters of their right to suffrage. Under Article V of the Constitution, all citizens “not otherwise disqualified by law,” are entitled to register and vote.
 
Filipinos could only be disqualified from voting if they have been sentenced with “final judgment” by a court to imprisonment of not less than a year, found to be insane or incompetent, or have lost or renounced their citizenship.
 
This is why Trillanes, Misuari, and former Pres. Joseph Estrada, who was arrested on charges of plunder in 2001, were able to vote despite the cases filed against them.
 
The reality, however, is that the above examples serve more as the exception. Ironically, what prevents detainees from exercising their constitutional guarantee to suffrage is the law itself.
 
In the forum “Ensuring the right to Electoral Participation,” spearheaded by the Commission on Human Rights (CHR) in September 2008, a provision in the Omnibus Election Code was identified as a stumbling block to the registration and voting of inmates.
 
Sec. 155 of the election code prohibits polling places from being located within the parameter of a military, police camp or prison compound. Michael Vidamo, chief of the legal services of the BJMP, said that registration, on the other hand, is done in offices of election officers in cities or municipalities.
 
In order for inmates to register and vote, they should seek a court order which would allow them to step out of their jails and go to designated polling and registration sites. But given the fact that there are over 49,000 detainees awaiting their sentences nationwide, according to February 2009 BJMP data, resorting to the courts to be allowed to vote is not practical.
 
The BJMP, CHR, Commission on Elections (COMELEC) and Bureau of Pardon and Parole concluded in the workshop that “the problem is primarily a legal issue, rather than being simply a matter of execution at the institutional level.”
 
Detainees, not prisoners
 
Since the problem is the law, amending it is the solution.
 
The core group in the CHR forum on detainee enfranchisement proposed to change Article 155 of the Omnibus Election Code. But with the elections coming up in 2010, waiting for its amendment would set back the participation of inmates in the electoral process for another year.
 
Vidamo said that to stir changes with or without the amendment, BJMP chief Rosendo Dial filed a memorandum with the Department of Interior and Local Government last March 5 requesting the COMELEC to issue a resolution that would distinguish jails from prisons.
 
The difference between the two is crucial in identifying the detainees from the prisoners. If the terms are used interchangeably in common conversations, they hold entirely different meanings in the legal arena.
 
Vidamo explained that detainees have not yet been convicted, while prisoners have already been sentenced. Detainees are confined in jails, prisoners in prisons.
 
“Perceptibly, while the legislative intention in prohibiting polling places in certain areas is meant to ensure clean, honest and orderly elections, we cannot continually ignore the disenfranchisement of inmates…It is thus our contention that a jail is not a prison, and hence not included within the purview of prohibited places,” Dial explained in the memorandum.
 
By February this year, the BJMP tallied 43, 391 inmates qualified to register and vote in 2010. This comprises 72 percent of the total jail population of 52, 880. The detainees outnumber the prisoners, as 95 percent of the total number of inmates under BJMP still has unresolved cases. There are more than 62,000 inmates under BJMP jurisdiction.
 
Out of the 43, 391 inmates considered qualified to register and vote, 22,000 are not yet registered, 11,581 are already registered while 1, 618 have been delisted.
 
The average increase rate in jail population in BJMP is five percent. Given this, by the mid-term elections in 2013, there would be 80,676 inmates. Ninety-five percent or 76,642 of these would be detainees. If the going rate of those qualified to vote would stand at 70 percent, 53, 649 could be disenfranchised in the absence of registration and voting mechanisms.
 
In the next presidential elections in 2016, there would be 93, 391 inmates. This would translate to over 88,000 detainees, where 70 percent or 61,599 would need to be enfranchised.
 
But the BJMP has jurisdiction only over 54 percent of inmates in the country, meaning the number of detainees could be more. Provincial governments have supervision over 23 percent of the population, while the National Bilibid Prisons oversees 20 percent. The remaining three percent are minors and are placed under the Department of Social Welfare and Development.
 
But once the COMELEC puts its foot down and sets the distinction between jails and prisons in a resolution, voting precincts would be established in over 400 jails at least under BJMP all over the country.  “Inmates would be able to register and vote onsite,” Vidamo said.    

Local absentee voting
 
Expectedly, the proposal of onsite voting for detainees raised budget and manpower woes for the COMELEC. But if the registration and voting would be conducted within the BJMP facilities, “the COMELEC would have nothing to worry about. We would use our own people and our own budget,” Vidamo assured.
 
The pressing concerns regarding onsite voting and registration actually go beyond money and manpower. There are legal factors such as the requirements for registration and limitations in existing voting mechanisms.
 
For one, Section 9 of Republic Act 8189 or the Voters’ Registration Act of 1996 specifies that people should have resided for at least six months in a place before they could register.
 
Vidamo said that in cases where the inmates are only qualified to register in other cities or municipalities, they could request for a transfer of precinct. There is also a proposal from the CHR to have detainees covered by the local absentee voting act.
 
Under this system, detainees would be able to vote within the BJMP premises even if they are registered in other precincts. At present, only military and police personnel are permitted to do this following their assignments in other places during the elections.
 
The inclusion of inmates in local absentee voting would also minimize the risks of detainees fleeing and ease concerns over the safety and security of the greater public.
 
The local absentee voting act is only applicable for national elections, however. Vidamo said that they are pushing for the COMELEC to allow detainees to also vote in the local elections under the local absentee voting scheme.
 
“They (detainees) should be allowed. That’s the only way they could get local politicians to listen to them,” he said.
 
Not local, but global
 
But would having over 43,000 detainees cast their votes work wonders for a politician’s bid?
 
If numbers alone tell the story, the answer is no. The jail with the most number of inmates qualified to register and vote is Manila City Jail, with 4,054 possible voters. Four thousand is hardly a percent of over 1 million registered voters in Manila in the 2007 elections.
 
On a macro level, 43,000 votes is a small slice of the over 30 million votes cast in the 2007 elections. But it could tilt the balance for a candidate’s favor in a way, given the tight race in the 2007 elections where top Senate contender Loren Legarda won over Francis Escudero by a slim margin of around 200,000 votes.
 
The enfranchisement of detainees, however, buoys more than a victory in the polls; it signals a triumph for the Constitution. CHR chairperson Leila de Lima said that each Filipino deprived of his right to vote creates a mockery of the country’s democracy.
 
Vidamo said that such achievement would have far-reaching effects on the international community, as the right to suffrage is embedded in the United Nations Universal Declaration of Human Rights and International Covenant on Civil and Political Rights.
 
“It would have an international impact,” he said.
 
Enfranchising detainees is pivotal not only in the election of new leaders, but also in political transitions in other nations. In Iraq , the CHR noted that detainees, including beleaguered official Saddam Hussein, were made to vote for a constitutional referendum in 2005.
 
Locally, a precedent has been set in place already for detainees have previously registered and voted in Cebu City. In 2007, 138 inmates in the Cebu City jail were able to vote in the synchronized Sanguniang Kabataan and barangay elections through a court order.
 
The BJMP is pushing to expand its authority and include provincial jails under its jurisdiction so that those from the provinces could also vote. Vidamo said that since there is no law yet, the BJMP signed a memorandum of agreement with local government officials for the transfer of jail supervision.
 
The transfer of control would somehow loosen the hold of local politicians over the inmates, he said.
 
The BJMP is confident that the detainees would be registered before October, the deadline of registration. After that the BJMP will look into the issue of letting candidates campaign among the inmates. As to the detainees becoming informed and responsible voters, Vidamo said that would be a different ballgame altogether.