This is to declare that Article 138 being not narrowly tailored as it has wrongful effects on human rights
and infringes the constitutionally protected rights of people to free speech.
It is true that many countries all over the world prioritize ‘’national security’’ and indeed, the state has
the responsibility to adopt measures to protect people from terrorist acts, by means of counter-terrorism
legislation and strengthening existing laws related to national security. Unfortunately, laws related to
national security have been used to persecute human rights defenders from pursuing their work
promoting and protecting human rights. More often than not, the scope of these laws exceeds the
legitimate objective of strengthening national security. Many of these laws use vague and imprecise
definitions that allow varying interpretations and unduly limit judicial review and Article 138 of Revised
Penal Code is one.
In US v Constantino, et al., the kidnappers had no in nay purpose (INTENT) in view or they had the specific
intent of inciting anyone to rebellion, or of promoting a rebellion. This act of simple kidnapping, without
evidence as to previous or attendant circumstances, without data of any kind, in short, to indicate the
motive or purpose for which the acts was committed does not constitute rebellion/insurrection or inciting
as such.
In the case of Chavez v. Gonzalez, It appears that the great evil which government wants to prevent is the
airing of a tape recording in alleged violation of the anti-wiretapping law. However, respondents’ evidence
falls short of satisfying the clear and present danger test. Firstly, the various statements of the Press
Secretary obfuscate the identity of the voices in the tape recording. Secondly, the integrity of the taped
conversation is also suspect. The Press Secretary showed to the public two versions, one supposed to be
a “complete” version and the other, an “altered” version. Thirdly, the evidence of the respondents on
the who’s and the how’s of the wiretapping act is ambivalent, especially considering the tape’s different
versions. The identity of the wire-tappers, the manner of its commission and other related and relevant
proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is
even arguable whether its airing would violate the anti-wiretapping law.
Moreover, the ICJ notes that the language set out in Article 138 of the RPC, criminalizing incitement to
rebellion, does not require intent and has possible wide application to speech not intended to incite but
which may be alleged to have incited others. Article 138 could also be used to punish the exercise of and
have a chilling effect on the rights to freedom of expression and freedom of assembly due to its prohibition
of speech that encompasses any of Article 134’s vaguely proscribed acts.
This is evidently inconsistent with the international human rights standards and should repeal this
provision. Article 138 (on inciting to rebellion) must be substantially amended in a manner that conforms
to the principle of legality and the rights of freedom of expression.
Hence, this law as being detached from present day realities, as well as not being consistent with
fundamental principles of international human rights law, Article 138 of our Revised Penal Code is deemed
unconstitutional.