And now, who will defend us?

Laws were created to regulate the coexistence of man within a society. Each country has a Supreme law, usually called Carta Magna or Constitution that establishes the foundations and principles by which it will be governed. It set down the main rights and obligations, as well as the guarantees that serve as a limit, to avoid abuse of power.

These constitutions were created by man, and modified by man as well, generally preceded by events that impact the country and the society to which they belong. This indicates that there is some degree of vulnerability because of the endowment. Mechanisms for their modification are also established.

In Paraguay, there are two ways: the Reformation and the Amendment. The first has a more demanding process, in which once the need for reform it´s declared, it should be called to elections for the conventional constituents who will be in charge of modifying the constitution without any limits regarding the modifications that can be made.

The second way, called Amendment, has a more simplified procedure, in which once it´s approved by both chambers of the congress, a referendum is carried out. By having a simpler procedure, there are some limitations. This can´t be used for changing …the provisions affecting the mode of election, composition, duration of mandates or attributions of any of the powers of the state[1], among other rights relating to life, liberty, environment, etc.

This controversy already a decade long, but more latent in these last months, next to the internal party elections that precede the presidential elections of 2018, is the one referring to the re-election. At this moment it is prohibited in the country by the article 229 of the National Constitution that establishes that the presidents “… may not be reelected in any case …” The article mentioned is under the title of “Duration of the mandate” So if it is intended to modify the constitution to allow re-election, this can´t be done with the amendment procedure, as is established in the article mentioned in the previous paragraph.

Opinions about the interpretation of these articles are divided. In one side, there are jurists and politicians who claims that “re-election doesn´t affect the duration of mandate. It doesn´t change the five years of duration that indicate the constitutions. It only establishes the possibility of having one more period”. Following this interpretation, attempts have been made to amend this provision, by being the fastest route.

In the other side, and according to the interpretation of some jurists, they affirm that “the purpose of the norm by prohibiting the re-election is that the duration of the mandate can be only for 5 years, without the possibility of its extension through a new election[2] Also taking into account the historical moment in which the present constitution was written, that was after the fall of the dictatorship of Stroessner[3], that lasted in the power 35 years. The purpose was to enable current presidents to perpetuate themselves in power througha legal dictatorship, establishing a more complex procedure to deal with the modifications of such delicate issues.

Not in vain Montesquieu said “Power ought to serve as a check to power”. The Constitution sets limits to power. The Judicial Power is the custodian of the Constitution. It interprets, fulfills and enforces the Constitution.[4] However, the members of the Supreme Court of Justice are appointed by the Senate Chamber with the agreement of the President. This makes the “judicial independence” guaranteed in the Constitution[5] vulnerable. In that way, there is a certain mistrust of what the Supreme Court of Justice can determine. So, the question now is, who will defend us?

It is worrying that the interpretations are made according to particular political interests, without taking into account the general interest[6]. Although re-election is a figure that is used in several developed countries of the world, to include it in our law, we must use the legal way, respecting the Supreme Law. Because the violation of the constitution would imply the breaking of the rule of law.

[1] Article 290 of the National Constitution of Paraguay.

[2] Ramirez Candia, Manuel Dejesús; “Constitutional Law of Paraguay, Volume II”, Pag. 528, Intercolor S.R.L. editor, 2011”

[3] Alfredo Stroessner was a paraguayan military, politician and dictator. He was the 48th president of the Republic of Paraguay between August 15, 1954 and February 3, 1989, where he exercised a dictatorship that lasted 35 years.

[4]Article 247 of the National Constitutions of Paraguay.

[5] Article 248 of the National Constitutions of Paraguay.

[6] Article 128 of the National Constitutions of Paraguay.


ABOUT THE AUTHOR

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ANTONELLA MENDEZ

Antonella Méndez is an educator, environmentalist and agent of change. She holds a Bachelor Degree in International Trade and she is graduating this year (2017) with a Professional Law Degree at the National University of Asunción. She is Assistant Professor of Sociology of Law and she is member of the research committee at university.  She is host of a live TV program about analysis and debate of general interest topics.

Idiocracy of Tamil Nadu Politics

The demise of Jayalalithaa, the second-longest serving female chief minister in India, who was a popular film actress, a charismatic mass orator, a seasoned politician have not only shaken Chennai but also the power of Centre in New Delhi. It has opened a debate in the media, particularly in social networking sites leading to a drift in All India Anna Dravida Munnetra Kazhagam (AIADMK) .

As of now, O Paneerselvam has the support of only five of the party’s 134 legislators whereas currently, Sasikala claims to enjoy support of 129 of her party’s 134 legislators. Ms Sasikala, who was former Tamil Nadu chief minister Jayalalithaa’s close confidante, is not a legislator and will have to become one within six months if she is made chief minister. The Governor, as per the India today sources said, he has to make sure that the person he invites to form government can win an election within that time and also provide a stable government to the state.However, Strategy of O. Paneerselvam is gradually taking shape and Governor Vidhyasagar Rao is inclined to wait for Supreme Courts verdict in a corruption case against AIADMK chief VK Sasikala, before he invites her to form a government. The verdict is expected this week. If found guilty of having, along with Ms Jayalalithaa, amassed wealth disproportionate to their known sources of income, it could bar her from the chief minister’s office or any other public office thereto.

She has had no firsthand political experience in managing the party and the government together. If Sasikala is able to beguile this diplomacy. It would be interesting to see if she has vision and time to bridge these gaps. With her lack of political experience, no one knows how she will take on the proven political mettle of MK Stalin, the DMK leader and M Karunanidhi’s son.On other hand, If the BJP plays its cards right in the post-Jayalalithaa era and backs the right horses, Tamil Nadu politics might be altered for good.



ABOUT THE AUTHOR

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MAHAK PALIWAL

Mahak Paliwal is a student studying in Symbiosis Law School. Though, not a professional writer she has written few blogs and articles. Passionate about writing, this passion was a natural fit. With encouragement from family and friends, Mahak started writing some 3-4 years back. In her free time, she appraises reading various articles or blogs.

An unbiased discussion on Jallikattu

A Nation’s culture resides in the heart and soul of its people!

Culture shapes our values, belief, norms and, to a great extent, our attitudes and the way we perceive the world around us. And our motherland, the India is known for its unique blend of diverse culture. We take pride in our cultural practices, tradition, custom and we also feel an obligation for its preservence. Jallikattu is one among the prevalent Tamilian culture’s part. Jallikattu, Tamil Nadu’s version of ‘running of the bulls’ that has been banned by the Supreme Court, is back in the limelight once more.

All you need to know about the Jallikattu

Jallikattu could be referred to as bull taming event typically practiced in Tamil Nadu as a part of Pongal celebrations on Mattu Pongal day, third day of the four-day Pongal festival. The term ‘jallikattu’ is derived from the tamil words ‘jalli’ and ‘kattu’.  Jalli refers to gold or silver coins. Kattu means ‘tied’. Therefore, combined together it refers to coins being tied to the bulls’ horns, which is considered the prize for whoever tames the bull. The bull that wins is used to service numerous cows preserving the native breed. It is renowned as an ancient ‘sport’, believed to have been practised some 2500 years ago.

An Essential Role of Jallikattu

Jallikattu events provide the opportunity for bulls to be exhibited. Male calves are kept only in regions with a tradition of sports like jallikattu. In other regions, male calves are sold and taken to slaughter in only a few days. With the reduced availability of males, farmers have to go for artificial insemination. That is indeed a problem. But the region where Jallikattu is in Practice, the male calves are nurtured as part of their family. “For thousands of years, the agrarian society of Tamils has considered cattle as family members. The sole purpose of rearing a bull is for Jallikattu. The sport is a scientific method to pass on the best of genes to the next generation. It’s a method to identify the robust of bulls and create a superior genepool.” There are also some people who depend on the hefty prize money on bull taming. In reality they pursue it as a profession. And that cannot be ignored.

Chronological events concerning animal rights with a reference to Jallikattu

The bull fights, and bull races have been illegal since 1960 under the statute “Prevention of Cruelty to Animals Act. Further the bull performance was banned by the environment ministry itself in 2011, and the causing of unnecessary suffering that is inherent in Jallikattu.

In 2014, the court had banned Jallikattu on grounds of animal cruelty. The order, however, didn’t go down well with Tamil Nadu political parties.

Last year, SC had dismissed the plea of the state government seeking review of its 2014 judgement that banned bulls for Jallikattu in Tamil Nadu. The apex court had also earlier declared Tamil Nadu Regulation of Jallikattu Act, 2009 as constitutionally void, being violative or Article 254(1) of the Constitution.

On January 8, last year the Centre had issued a notification lifting ban on Jallikattu in Tamil Nadu with certain restrictions, which was challenged in the apex court by Animal Welfare Board of India, People for Ethical Treatment of Animals (PETA) India, a Bangalore-based NGO and other.

On July 26, last year the apex court had said that just because the bull-taming sport of Jallikattu was a centuries-old tradition, it could not be justified.

A Bird’s view on constitution of India in consonance with ongoing debate

Article 48 and Article254(2) have been given reference on such debatable issues. Article 48 of the Constitution requires to the state to “endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle”. The later one Article 254(2) talks at length about how in the matter mentioned in concurrent list if decision of state and central government are different then central government decision shall prevail. Both provisions cannot be overlooked. The state needs to build a way out that will be going through both places.

Democracy gives right to differ but definitely in reasonable manner

Those who have batted for the “sport”, have usually done so saying it is part of the state’s culture much in the manner gory bull-fights and Pamplona’s running of the bulls are in Spain or rodeo is in parts of the US. We don’t need to take such defence like somebody powerful than you involves questionable short of activities doesn’t mean we should emulate. A bad will always be bad. Indian culture is inherently kind in nature. So these people should not say at least now the Jallikattu in recent version is brutal.

There is no doubt that jallikattu, translated as bull-hugging, is a cultural phenomenon singular to Tamil Nadu as is camel racing to Rajasthan or Gujarat or ritual animal sacrifice in Assam, none of the latter being banned practices. What kind of hugging happens by way pulling the tame of bull, exposing him to various torturous circumstances that disorient them?

We successfully banned child marriage, abolished Sati pratha, initiated widow remarriage, and numerous as such with the passing of time then why not the Jallikattu can be dealt in such manner? The blanket ban also won’t work as it worked in Sati Pratha and Child Marriage. The former two don’t have any kind of positive aspects and contribution in societal development and sustenance, but the Jallikattu is a need for the native person. It discovers the strongest breed of bull that would help in production of better breed and also the people who depends on the prize money of the sport. The one is environmental issue and another is social concern.

Social heritage and social adjustments are characteristics of culture. So we need to protect the heritage but we should also walk together towards a global culture where surely some kind of adjustment is required.

CONCLUSION

Choosing sides in the debate on Jallikattu is a Sisyphean task. Rather it should be dealt with the due dialogue. Dialogue is the basis of Indian culture. So the proper legislation should be made on Jallikattu so that there won’t be any kind of cruelty in practice and Animal Rights ought to be taken into consideration. Man has the capacity to learn from experience and devise ways of adjusting to the physical environment in order to ensure his survival. So they need to rethink their demand by a animal’s point of. But one thing that cannot be ignored is the kind of peaceful and proper protest at Marina Beach will be a paradigm in future. We are rationalist nation. Let’s go of the old, leave the nonsense kind of politics and make a room for the new proper legislation…



ABOUT THE AUTHOR

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KOMAL

Komal has done her schooling from Jawahar Navodaya Vidyalaya , Birauli, Samastipur, Bihar. Currently, she is pursuing BA.LLB at Chanakya National Law University, Patna. Intrinsically passionate about News paper, Books and Basketball, her interest extends to understand the intricacies of the current legal issues. She yearns to be a renowned lawyer.

Uniting for peace as a solution to Syrian issue

The image of Aleppo kid, bloodied and covered with dust, sitting silently in an ambulance awaiting help as another stark reminder of the toll of the war in Syria has not vanished from our minds. The UN Security Council has failed to bring peace in Syria. In almost six years of conflict, close to half a million people have been killed and eleven million have been forced to leave their homes. Most recently, the Syrian and Russian governments and their allies have carried out unlawful attacks on eastern Aleppo with scant regard for some 250,000 civilians trapped there. The article will give a brief overview of what the “uniting for peace” is and if this resolution will serve as a way out to this situation.

The creators of the United Nations Charter conceived that five countries namely China, France, USSR [which was succeeded in 1990 by the Russian Federation], the United Kingdom and the United States, because of their key roles in the establishment of the United Nations, would continue to play important roles in the maintenance of international peace and security. For this purpose the “power of veto” was introduced in Article 27 of the UN Charter by which it was agreed by the drafters that if any one of the five permanent members cast a negative vote in the 15-member Security Council, the resolution would not be approved.

All five permanent members have exercised the right of veto at one time or another[1]. Over the last 20 years out of a total of 24 vetoes, 15 have been used by the USA to protect Israel[2]. The UK used the veto unilaterally seven times because of Rhodesia later to become Zimbabwe. France subsequently used the threat of a veto to support Morocco’s position in the Western Sahara conflict. The representative of the government of the Republic of China used the veto to block the Mongolian People’s Republic’s application for membership in 1955 because the ROC considered Mongolia to be a part of China. This postponed the admission of Mongolia until 1960[3]. The above practices of the permanent members show that they have used the power of veto in accordance with their national interest, more often resulting in a deadlock making the Security Council unable to fulfill its responsibility.

In 1950, the most pressing issue on the international agenda was the war in Korea. The Soviet Union, using its veto power, repeatedly blocked action by the Security Council, thus preventing the Council from taking any measures to protect the Republic of Korea against the aggression launched against it by military forces from North Korea. It was against this backdrop that the United Nations General Assembly adopted a historic resolution, 377 A (V), titled “Uniting for Peace” in November 1950[4]. Resolution 377 (A) read:

“if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to make the appropriate recommendations to Members for collective measures, including in the case of a breach of the peace, or act of aggression to use armed force when necessary, to maintain or restore international peace and security. If not in session at the time, the General Assembly may meet in emergency special session within 24 hours of the request thereof. Such emergency special session shall be called if requested by the Security Council on a vote of any seven (now nine) members, or by a majority of the United Nations[5]. Therefore, when the permanent members of the Security Council find themselves at odds and fail to reach unanimity on a matter that appears to be a threat to international peace and security, this resolution authorizes the General Assembly to immediately consider that matter and issue its own “appropriate recommendations” to the Member States “for collective measures”. Those collective measures can include “the use of armed force when necessary.”

On April 18, 2016, Mr. Monzer Makhous, member of the Syrian National Council and High Negotiations Committee (HNC) spokesperson told Asharq Al-Awsat that “current events confirm that the ‘uniting for peace’ resolution is the most effective solution for a serious settlement for the Syria crisis. Mr. Makhous added that the world will not stand idle before Russia’s continuous exploitation of its right to veto[6]”.

The “Uniting for Peace” procedure is unquestionably a legally valid alternative for the deadlock at the Security Council with respect to the Syrian issue. The “Uniting for Peace” procedure would allow the Assembly to recommend a range of other coercive measures, including sanctions. Beyond enforcing the ban on the use of chemical weapons, this would empower the General Assembly to back up its numerous calls for a political solution to the conflict and for better humanitarian access with more tangible and enforceable measures. Although these measures would remain nonbinding, and their implementation depend on the good will of member states, it would equip them with the legality and international legitimacy that is lacking absent a strong resolution by the Security Council.

[1] United Nations, Security Council viewed at http://www.un.org/en/sc/

[2] Sahar Okhovat, The United Nations Security Council: Its Veto Power and Its Reform, December (2011)

[3] Aleksandra Czajka, The analysis of the Veto Power in the United Nations Security Council, Pompeu Fabra University Barcelona, November, (2011)

[4] Aaron Jacob, Unilateral Declaration Of An Independent Palestinian State And The Procedure Of ‘Uniting For Peace’, September (2011)

[5] The General Assembly Res. 377A(V), 3 November (1950)

[6]Fatah Al-Rahman Youssef,  Syria’s HNC to Resort to U.N. Resolution ‘Uniting for Peace’, 16 October (2016)



About the author

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Miracline Paul Susi.T is a 4th-year law student at School of Law, SASTRA University. She is deeply passionate about law. She strongly believes that the legal profession has the power and the responsibility to effect changes to the on-ground realities and difficulties that multiple communities face. Miracline’s keen interest in social works is evident from her service at SASTRA Legal Aid Society. She believes that the knowledge in law is vital for all and sundry who is bound by it. Her writing skills may be confirmed from her articles in Kerala High Court Journal, Taxmann and International Journal of Enviro Legal Research.

The Tyranny of Forced discipline

This article has been written by Raina Mahapatra. Raina is currently pursuing her undergraduate course from Symbiosis Law School, Pune.

The Indian Express I opened today looked up at me with a plethora of information and a particular article on the seventh page caught my eye, quite rightly so. “No beard, uniformity must in IAF”, it read.

The Supreme Court on Thursday said that IAF personnel had no right to sport a beard on religious grounds, lest the ‘uniformity and discipline’ of the defence forces be hampered. Citing the power of the Parliament to determine the extent of restriction on fundamental rights among armed forces personnel as provided for in Article 33 of the Constitution, the apex court dismissed the appeal by Airmen Mohammed Zubair and Ansari Aaftab Ahmed. The appeal was put forward challenging the High Court’s dismissal of their plea for quashing the IAF order directing them to shave off their beards. The bench headed by Chief Justice T S Thakur and comprising of Justices D Y Chandrachud and L Nageswara Rao held that the petitioners had failed to show that their case fell within the ambit of Regulation 425(b) which says “personnel whose religion prohibits the cutting of the hair or shaving of the face of its members will be permitted to grow hair or retain beard.”

According to the court, although India treats every religion equally, such an action is quintessential to a cohesive, disciplined and coordinated functioning of the armed forces.

And while some might find this unrelated, it brought into my mind’s questioning the SC Anthem Ruling that plunged into controversy not so long ago wherein the honorable Supreme Court once more demonstrated that cinema is a soft target for all concerns nationalistic. How is it, if our nation respects all religions, that there is a requirement to strip down one off his unique identity in order to instil a sense of ‘uniformity’ within him? Why does our nation require symmetry in physical appearance or an outward act of patriotism so badly?

Days after it forced the patriotic pill down our collective throats by making the playing of national anthem and standing to it mandatory before movie screenings in all cinema halls, 12 people were detained during the International Film Festival of Kerala for not rising and 8 people, who chose not to rise in opposition, got beaten up in a Chennai cinema hall by a mob of 20.

What needs to be understood is that most of these people who voluntarily choose not to obey such a rule are not doing it out their hatred or lack of love for their nation but as a necessary act of defiance against the compulsory thrusting of nationalism against their will.

Since when does our judiciary require positive acts on our behalf in order to be satisfied of the feeling of patriotism that rests in our heart? How is nationalism being forced down our throats as a compulsion the only manner in which the SC can finally be satisfied with our patriotism? How is the judiciary the only possible protector of our nationalistic feelings now? The questions never end.

Of all places, especially in a country wild about movies, cinema halls are visited by the people to take a break from their lived reality and blow off steam; for the Supreme Court to single out the largest mass entertainment venue for such mandatory “inculcation” reeks of a design to deepen the state’s coercive powers over us. The only ones it has empowered through this order are chest-thumping jingoists and aggressive elements. Literally bashing people who do not consent to be force-fed nationalism, physically and legally, can be pictured in totalitarian, big-brother regimes, but not in the country we call home. Yet it is being allowed to happen.

The Freedom to Speech and Expression being guaranteed by our constitution surely imbibes within itself the right to denial and positively express our intention against something that is being forced on us without any reason. And yet, the forced discipline.



 

The December book bucket

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Possible legal issues surrounding the ‘Demonetization’ move

This article has been written by Miracline Paul SusiMiracline Paul Susi.T is a 4th-year law student at School of Law, SASTRA University.

8th of November 2016 marked a groundbreaking change in India’s economy. Prime Minister Narendra Modi announced that 500- and 1,000- rupee notes were no longer legal tender. People were given 50 days to deposit them in bank accounts or to exchange them for new notes at banks. The Prime Minister asserted that removal of black money was sole aim behind this revolutionary process. While the economic consequences of demonetization have been extensively debated, the legal validity needs a detailed deliberation.

The first legal issue revolves around the Reserve Bank of India Act, 1934. The RBI Act gives the RBI the sole authority to operate the country’s currency and credit system. It gives the RBI the exclusive right to issue banknotes[1] and gives power to the central government and the RBI to decide on the non-issuance of banknotes[2]. The November 8 circular issued by the Finance Ministry demonetizing 500- and 1000- rupee notes was based on Section 26 sub-section (2) of the Reserve Bank of India Act, 1934. The section says that “on recommendation of the central board of the RBI, the central government may, by notification in the Gazette of India, declare that with effect from a date specified in the notification, any series of bank notes of any denomination shall cease to be legal tender.” The power of demonetization arrived at by this section constitutes an “essential law making function” which cannot be delegated to be fixed by the central government on its own determination. Only if the government is able to demonstrate that this was done based on a recommendation made by the RBI’s central board of directors it is legally valid, otherwise it would amount to gross “delegation of power”.

Secondly, the demonetization is not very new; it has taken place twice before, in 1946 and 1978, with the same goal of addressing unaccounted money. Unlike 2016 demonetization, both in 1946, and in 1978, the demonetization was authorized by an ordinance. In so far as Article 300A of the Indian Constitution is concerned, the state may deprive an individual of property only pursuant to the authority of law, that is, by an Ordinance or an Act of Parliament. The government’s failure to issue an Ordinance to extinguish its debt to the people thereby depriving them of their property impermissibly violates Article 300A.

“Public debts” are property and “the extinguishment of such a debt owing from the state amounts to compulsory acquisition of that debt”[3]. In Jayantilal Ratanchand v. RBI[4], in the context of the 1978 demonetization, the Supreme Court held that insofar as the demonetization wiped out the RBI’s debt to the bearer of notes declared illegal, it constituted compulsory acquisition of property. It is settled law that, state acquisition of private property is allowed provided the requirements of ‘public purpose’ and ‘compensation’ are satisfied. In arguendo, the demonetization had been sanctioned by an Ordinance, the validity is assured only after the investigation of the court, if it met a public purpose and whether those who were deprived of their property were reasonably compensated.

Thirdly the demonetization violates the fundamental right “to practice any profession or to carry on any occupation, trade or business[5]”, because of the hastiness and the resultant consequences. It cannot be claimed even by the government that only those with black money, fake currency notes or intent to aid terrorism are bound to suffer because of the notification. The government, of course, would rely on article 19(6), which says that nothing in Article 19(1)(g) shall affect the operation of any existing law in so far as it prevents the state from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the rights conferred by the sub-clause. But the exception of article 19(6) is not available to the central government as the notification is beyond “police powers”.  The grounds cited cannot justify the adoption of extreme measures like invalidating 86% of printed currency in circulation overnight[6].

Fourthly, the demonetization also discriminates between holders and non-holders of bank accounts thus violating Art.14 of the constitution. Prior to the issuance of this overnight notification, the government failed to ensure that 100% of the population had bank accounts. Though the government may argue that such a classification is necessary to achieve their objectives, such the classification may be set about as arbitrary and violative of the right to equality under Article 14.

Lastly, it can be argued that issuing Rs 2000 currency notes clearly shows that it has no rational nexus with the object sought to be achieved by the demonetization.


[1] Section 22 of the Reserve Bank of India Act, 1934.

[2] Section 24(2)) of the Reserve Bank of India Act, 1934.

[3] Madan Mohan Pathak vs Union Of India & Ors 1978 AIR 803, 1978 SCR (3) 334.

[4] JT 1996 (7), 681 1996 SCALE (5)741.

[5] Article 19(1)(g) of Constitution of India.

[6] Five Reasons Why the Recent Demonetization May Be Legally Unsound,  20/11/2016 available at http://thewire.in/81325/demonetisation-legally-unsound/.



The December book bucket

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