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The true role of Constitutional Law is to effect an equilibrium between authority and liberty so that rights are exercised within the framework of the law and the laws are enacted with due deference to rights.

This is the difficult task before us now, involving as it does our power of judicial review over acts of a coequal branch. The task is complicated by the context in which this task is to be discharged: Moreover, the Court is forced to grapple with the challenge of applying, to the illimitable cyberspace, legal doctrines that have heretofore been applied only to finite physical space. Fortunately, we have the Constitution as our North Star as we try to navigate carefully the uncharted terrain of cyberspace as the arena of the conflict between fundamental rights and law enforcement.

I concur with the ponencia in finding unconstitutional Section 12 of Cybercrime Prevention Act on the real-time collection of traffic data and Section 19 on the restriction or blocking of access to computer data.

I write this Separate Opinion, however, to explain further why real-time collection of traffic data may be indispensable in certain cases, as well as to explain how the nature of traffic data per se undercuts any expectation of privacy in them.

I find Section 6 to be unconstitutional insofar as it applies to cyberlibel because of its "chilling effect. I find the rest of the constitutional challenges not proper for a pre-enforcement judicial review and therefore dismissible.

Madison, 4 has been exercised by the Philippine Supreme Court since Electoral Commission exhaustively discussed the concept as follows: It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other.

The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government.

And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies.

If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living constitution.

In the United States where no express constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its historical origin and development there, has been set at rest by popular acquiescence for a period of more than one and a half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of our Constitution.

The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them.

This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution.

Emphases supplied The power of judicial review has since been strengthened in the Constitution, extending its coverage to the determination of whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

Indeed, "[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people. Alba 13 and Francisco v. House of Representatives 14 cite the "seven pillars" of the limitations of the power of judicial review, enunciated in the concurring opinion of U. Tennessee Valley Authority 15 as follows: The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions "is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals.

It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act. The Court will not "anticipate a question of constitutional law in advance of the necessity of deciding it. The Court will not "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.

This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.

The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right.

Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. Thus, as a threshold condition, the power of judicial review may be invoked only when the following four stringent requirements are satisfied: The case should not equate with a mere request for an opinion or an advice on what the law would be upon an abstract, hypothetical, or contingent state of facts.

Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions of wisdom, justice or expediency of legislation.

More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.

Emphases supplied According to one of the most respected authorities in American constitutional law, Professor Paul A. By declining to give advisory opinions, the Court refrains from intrusion into the lawmaking process. By requiring a concrete case with litigants adversely affected, the Court helps itself to avoid premature, abstract, ill-informed judgments. By placing a decision on a non-constitutional ground whenever possible, the Court gives the legislature an opportunity for sober second thought, an opportunity to amend the statue to obviate the constitutional question, a chance to exercise that spirit of self-scrutiny and self-correction which is the essence of a successful democratic system.

Anti-Terrorism Council, 24 we conceded the possibility of a pre-enforcement judicial review of a penal statute, so long as there is a real and credible threat of prosecution involving the exercise of a constitutionally protected conduct or activity. As the assailed law is yet to be enforced, I believe that in order to give due course to the Petitions, we would have to test their qualification for pre-enforcement judicial review of the assailed law and its provisions.

In discussing the requirements of a pre-enforcement judicial review, we refer to our ruling in Southern Hemisphere. We declined to perform a pre-enforcement judicial review of the assailed provisions of the Human Security Act of , because petitioners failed to show that the law forbade them from exercising or performing a constitutionally protected conduct or activity that they sought to do.

We also explained that the obscure and speculative claims of the petitioners therein that they were being subjected to sporadic "surveillance" and tagged as "communist fronts" were insufficient to reach the level of a credible threat of prosecution that would satisfy the actual-controversy requirement.

Thus, from the facts they had shown, we ruled that the Court was merely "being lured to render an advisory opinion, which [was] not its function. We noted that in Holder, a pre-enforcement judicial review of the assailed criminal statue was entertained because the plaintiffs therein had successfully established that there was a genuine threat of imminent prosecution against them, thereby satisfying the actual-controversy requirement.

The case concerned a new law prohibiting the grant of material support or resources to certain foreign organizations engaged in terrorist activities. Plaintiffs showed that they had been providing material support to those declared as foreign terrorist organizations; and that, should they continue to provide support, there would be a credible threat of prosecution against them pursuant to the new law.

Based on the foregoing considerations, the U. Supreme Court concluded that the claims of the plaintiffs were suitable for judicial review, as there was a justiciable case or controversy. We may thus cull from the foregoing cases that an anticipatory petition assailing the constitutionality of a criminal statute that is yet to be enforced may be exceptionally given due course by this Court when the following circumstances are shown: Furthermore, since the issue of the propriety of resorting to a pre-enforcement judicial review is subsumed under the threshold requirement of actual case or controversy, we need not go through the merits at this stage.

Petitioners allege that they are users of various information and communications technologies ICT as media practitioners, journalists, lawyers, businesspersons, writers, students, Internet and social media users, and duly elected legislators. However, except for the Petition of Disini, none of the other petitioners have been able to show that they are facing an imminent and credible threat of prosecution or danger of sustaining a direct injury. Neither have they established any real, factual circumstances in which they are at risk of direct injury or prosecution, should those acts continue to be carried out.

They have simply posed hypothetical doomsday scenarios and speculative situations, such as round-the-clock, Big-Brother-like surveillance; covert collection of digital and personal information by the government; or a wanton taking down of legitimate websites.

The Petition of Disini is the only pleading before the Court that seems to come close to the actual-controversy requirement under the Constitution. What sets the Petition apart is that it does not merely allege that petitioners therein are ICT users who have posted articles and blogs on the Internet.

The Petition also cites particular blogs or online articles of one of the petitioners who was critical of a particular legislator. The pertinent portion of the Petition reads: Petitioners are all users of the Internet and social media. Petitioner Ernesto Sonido, Jr. He then warned his critics that once signed into law, the Cybercrime Bill will penalize defamatory statements made online.

To quote Senator Sotto: Ganun ang strategy nun and unfortunately, di panapipirmahan ang Cybercrime bill.

Pwede na sana sila tanungin sa pagmumura at pagsasabi ng di maganda. Sa Cybercrime bill, magkakaroon ng accountability sa kanilang pinagsasabi, penalties na haharapin, same penalties as legitimate journalists, anything that involves the internet," he said. The threat of criminal prosecution that was issued by Senator Sotto affected not only bloggers like Petitioner Sonido but all users of the Internet and social media as the other Petitioners herein who utilize online resources to post comments and express their opinions about social issues.

The President finally signed the Cybercrime Act into law on September 12, With the passage of the Cybercrime Act, the threat that was issued by Senator Sotto against his online critics has become real.

Emphases and italics supplied The Petition of Disini appears to allege sufficient facts to show a realistic, imminent, and credible danger that at least one of its petitioners may sustain a direct injury should respondents proceed to carry out the prohibited conduct or activity.

First, there was a citation not only of a particular blog, but also of two potentially libelous entries in the blog. Second, the plausibly libelous nature of the articles was specifically described. Fourth, the person potentially libeled is a nationally elected legislator. This combination of factual allegations seems to successfully paint a realistic possibility of criminal prosecution under Section 4 c 4 of a specific person under the assailed law.

Consequently, there is now also a possibility of the writer being penalized under Section 6, which raises the penalty for crimes such as libel by one degree when committed through ICT.

The alleged facts would also open the possibility of his being charged twice under Section 4 c 4 and Article of the Revised Penal Code by virtue of Section 7. Furthermore, since he might become a suspect in the crime of libel, his online activities might be in danger of being investigated online by virtue of Section 12 or his access to computer data might be restricted under Section Therefore, it is submitted that the Court must limit its discussion of the substantive merits of the cases to the Petition of Disini, at the most and only on the provisions questioned therein.

A facial challenge refers to the call for the scrutiny of an entire law or provision by identifying its flaws or defects, not only on the basis of its actual operation on the attendant facts raised by the parties, but also on the assumption or prediction that the very existence of the law or provision is repugnant to the Constitution.

The challenge is resorted to by courts, especially when there is no instance to which the law or provision can be validly applied. The Court ruled that the law requiring them to salute the flag, sing the national anthem, and recite the patriotic pledge cannot be enforced against them at the risk of expulsion, because the law violated their freedom of religious expression.

In effect, the law was deemed unconstitutional insofar as their religious beliefs were concerned. Because of its effect as a total nullification, the facial invalidation of laws is deemed to be a "manifestly strong medicine" that must be used sparingly and only as a last resort. Section 6 — Increase of Penalty by One Degree Section 6 was worded to apply to all existing penal laws in this jurisdiction.

Due to the sheer extensiveness of the applicability of this provision, I believe it unwise to issue a wholesale facial invalidation thereof, especially because of the insufficiency of the facts that would allow the Court to make a conclusion that the provision has no valid application.

Alternatively, the discussion can be limited to the allegations raised in the Petition of Disini concerning the right to free speech. The Petition asserts that Section 6 on the increase of penalty by one degree , in conjunction with the provision on cyberlibel, has the combined chilling effect of curtailing the right to free speech.

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The true role of Constitutional Law is to effect an equilibrium between authority and liberty so that rights are exercised within the framework of the law and the laws are enacted with due deference to rights. This is the difficult task before us now, involving as it does our power of judicial review over acts of a coequal branch. The task is complicated by the context in which this task is to be discharged: Moreover, the Court is forced to grapple with the challenge of applying, to the illimitable cyberspace, legal doctrines that have heretofore been applied only to finite physical space.

Fortunately, we have the Constitution as our North Star as we try to navigate carefully the uncharted terrain of cyberspace as the arena of the conflict between fundamental rights and law enforcement. I concur with the ponencia in finding unconstitutional Section 12 of Cybercrime Prevention Act on the real-time collection of traffic data and Section 19 on the restriction or blocking of access to computer data. I write this Separate Opinion, however, to explain further why real-time collection of traffic data may be indispensable in certain cases, as well as to explain how the nature of traffic data per se undercuts any expectation of privacy in them.

I find Section 6 to be unconstitutional insofar as it applies to cyberlibel because of its "chilling effect. I find the rest of the constitutional challenges not proper for a pre-enforcement judicial review and therefore dismissible.

Madison, 4 has been exercised by the Philippine Supreme Court since Electoral Commission exhaustively discussed the concept as follows: It obtains not through express provision but by actual division in our Constitution.

Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other.

The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies.

If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms.

Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living constitution. In the United States where no express constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its historical origin and development there, has been set at rest by popular acquiescence for a period of more than one and a half centuries.

In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of our Constitution. The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them.

This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Emphases supplied The power of judicial review has since been strengthened in the Constitution, extending its coverage to the determination of whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. Indeed, "[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.

Alba 13 and Francisco v. House of Representatives 14 cite the "seven pillars" of the limitations of the power of judicial review, enunciated in the concurring opinion of U. Tennessee Valley Authority 15 as follows: The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions "is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals.

It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.

The Court will not "anticipate a question of constitutional law in advance of the necessity of deciding it. The Court will not "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.

This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.

Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.

Thus, as a threshold condition, the power of judicial review may be invoked only when the following four stringent requirements are satisfied: The case should not equate with a mere request for an opinion or an advice on what the law would be upon an abstract, hypothetical, or contingent state of facts. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions of wisdom, justice or expediency of legislation.

More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.

Emphases supplied According to one of the most respected authorities in American constitutional law, Professor Paul A. By declining to give advisory opinions, the Court refrains from intrusion into the lawmaking process.

By requiring a concrete case with litigants adversely affected, the Court helps itself to avoid premature, abstract, ill-informed judgments.

By placing a decision on a non-constitutional ground whenever possible, the Court gives the legislature an opportunity for sober second thought, an opportunity to amend the statue to obviate the constitutional question, a chance to exercise that spirit of self-scrutiny and self-correction which is the essence of a successful democratic system.

Anti-Terrorism Council, 24 we conceded the possibility of a pre-enforcement judicial review of a penal statute, so long as there is a real and credible threat of prosecution involving the exercise of a constitutionally protected conduct or activity.

As the assailed law is yet to be enforced, I believe that in order to give due course to the Petitions, we would have to test their qualification for pre-enforcement judicial review of the assailed law and its provisions.

In discussing the requirements of a pre-enforcement judicial review, we refer to our ruling in Southern Hemisphere. We declined to perform a pre-enforcement judicial review of the assailed provisions of the Human Security Act of , because petitioners failed to show that the law forbade them from exercising or performing a constitutionally protected conduct or activity that they sought to do. We also explained that the obscure and speculative claims of the petitioners therein that they were being subjected to sporadic "surveillance" and tagged as "communist fronts" were insufficient to reach the level of a credible threat of prosecution that would satisfy the actual-controversy requirement.

Thus, from the facts they had shown, we ruled that the Court was merely "being lured to render an advisory opinion, which [was] not its function. We noted that in Holder, a pre-enforcement judicial review of the assailed criminal statue was entertained because the plaintiffs therein had successfully established that there was a genuine threat of imminent prosecution against them, thereby satisfying the actual-controversy requirement.

The case concerned a new law prohibiting the grant of material support or resources to certain foreign organizations engaged in terrorist activities. Plaintiffs showed that they had been providing material support to those declared as foreign terrorist organizations; and that, should they continue to provide support, there would be a credible threat of prosecution against them pursuant to the new law. Based on the foregoing considerations, the U. Supreme Court concluded that the claims of the plaintiffs were suitable for judicial review, as there was a justiciable case or controversy.

We may thus cull from the foregoing cases that an anticipatory petition assailing the constitutionality of a criminal statute that is yet to be enforced may be exceptionally given due course by this Court when the following circumstances are shown: Furthermore, since the issue of the propriety of resorting to a pre-enforcement judicial review is subsumed under the threshold requirement of actual case or controversy, we need not go through the merits at this stage.

Petitioners allege that they are users of various information and communications technologies ICT as media practitioners, journalists, lawyers, businesspersons, writers, students, Internet and social media users, and duly elected legislators.

However, except for the Petition of Disini, none of the other petitioners have been able to show that they are facing an imminent and credible threat of prosecution or danger of sustaining a direct injury. Neither have they established any real, factual circumstances in which they are at risk of direct injury or prosecution, should those acts continue to be carried out. They have simply posed hypothetical doomsday scenarios and speculative situations, such as round-the-clock, Big-Brother-like surveillance; covert collection of digital and personal information by the government; or a wanton taking down of legitimate websites.

The Petition of Disini is the only pleading before the Court that seems to come close to the actual-controversy requirement under the Constitution. What sets the Petition apart is that it does not merely allege that petitioners therein are ICT users who have posted articles and blogs on the Internet. The Petition also cites particular blogs or online articles of one of the petitioners who was critical of a particular legislator. The pertinent portion of the Petition reads: Petitioners are all users of the Internet and social media.

Petitioner Ernesto Sonido, Jr. He then warned his critics that once signed into law, the Cybercrime Bill will penalize defamatory statements made online. To quote Senator Sotto: Ganun ang strategy nun and unfortunately, di panapipirmahan ang Cybercrime bill. Pwede na sana sila tanungin sa pagmumura at pagsasabi ng di maganda.

Sa Cybercrime bill, magkakaroon ng accountability sa kanilang pinagsasabi, penalties na haharapin, same penalties as legitimate journalists, anything that involves the internet," he said. The threat of criminal prosecution that was issued by Senator Sotto affected not only bloggers like Petitioner Sonido but all users of the Internet and social media as the other Petitioners herein who utilize online resources to post comments and express their opinions about social issues.

The President finally signed the Cybercrime Act into law on September 12, With the passage of the Cybercrime Act, the threat that was issued by Senator Sotto against his online critics has become real. Emphases and italics supplied The Petition of Disini appears to allege sufficient facts to show a realistic, imminent, and credible danger that at least one of its petitioners may sustain a direct injury should respondents proceed to carry out the prohibited conduct or activity.

First, there was a citation not only of a particular blog, but also of two potentially libelous entries in the blog. Second, the plausibly libelous nature of the articles was specifically described. Fourth, the person potentially libeled is a nationally elected legislator. This combination of factual allegations seems to successfully paint a realistic possibility of criminal prosecution under Section 4 c 4 of a specific person under the assailed law.

Consequently, there is now also a possibility of the writer being penalized under Section 6, which raises the penalty for crimes such as libel by one degree when committed through ICT. The alleged facts would also open the possibility of his being charged twice under Section 4 c 4 and Article of the Revised Penal Code by virtue of Section 7. Furthermore, since he might become a suspect in the crime of libel, his online activities might be in danger of being investigated online by virtue of Section 12 or his access to computer data might be restricted under Section Therefore, it is submitted that the Court must limit its discussion of the substantive merits of the cases to the Petition of Disini, at the most and only on the provisions questioned therein.

A facial challenge refers to the call for the scrutiny of an entire law or provision by identifying its flaws or defects, not only on the basis of its actual operation on the attendant facts raised by the parties, but also on the assumption or prediction that the very existence of the law or provision is repugnant to the Constitution.

The challenge is resorted to by courts, especially when there is no instance to which the law or provision can be validly applied. The Court ruled that the law requiring them to salute the flag, sing the national anthem, and recite the patriotic pledge cannot be enforced against them at the risk of expulsion, because the law violated their freedom of religious expression.

In effect, the law was deemed unconstitutional insofar as their religious beliefs were concerned. Because of its effect as a total nullification, the facial invalidation of laws is deemed to be a "manifestly strong medicine" that must be used sparingly and only as a last resort. Section 6 — Increase of Penalty by One Degree Section 6 was worded to apply to all existing penal laws in this jurisdiction.

Due to the sheer extensiveness of the applicability of this provision, I believe it unwise to issue a wholesale facial invalidation thereof, especially because of the insufficiency of the facts that would allow the Court to make a conclusion that the provision has no valid application.

Alternatively, the discussion can be limited to the allegations raised in the Petition of Disini concerning the right to free speech. The Petition asserts that Section 6 on the increase of penalty by one degree , in conjunction with the provision on cyberlibel, has the combined chilling effect of curtailing the right to free speech.

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2 Comments

  1. Going by that ruling, if one commits libel by email, then the penalty is going to be one degree higher This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. Or you can let the world and society build you into whatever it wants.

  2. In view of their acceptance of their fate and willingness to be reformed, the State affords them a chance to avoid the stigma of an incarceration record by making them undergo rehabilitation outside prison. Now Chelsea and I are off to do a little zip-lining in the Costa Rican jungle!

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