25 September, 2020

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Issues Of New Constitution Making In Sri Lanka: Towards Ethnic Reconciliation

By Laksiri Fernando

Dr. Laksiri Fernando

Dr. Laksiri Fernando

This is a collection of essays and articles written and mostly published from time to time covering various issues of constitution making in Sri Lanka. The focus of all of them is ethnic reconciliation. The timing of this publication is the ongoing efforts in Parliament in consultation with the public and various stakeholders in drafting a new constitution and adopting it in Parliament subsequently endorsed by a referendum, according to the constitutional provisions of the present Constitution (1978). Referendum for a new constitution is an important constitutional requirement. Therefore, it should be said at the outset that no ‘constitutional revolution’ is anticipated in this effort like in 1972. The rationale or the felt need for a new constitution is long standing although this is going to be the fourth constitution of Sri Lanka, if it is successful, since independence in 1948. Admittedly, therefore, there has been some continuous disequilibrium in constitutional matters in the country.

The first constitution or popularly called the Soulbury constitution was primarily a document drafted by the colonial state makers, Lord Soulbury and Sir Ivor Jennings, of course in consultation with the elected representatives of the country. However this constitution lasted for 25 years from 1947 to 1972 without much upheaval. In contrast, the first indigenous and the first republican constitution of 1972 survived only for six years. The second republican constitution of 1978 is still in operation for 38 years but largely due to its rigidity than any inherent quality of popular acceptance. Since 1994, there have been several fervent efforts to overhaul it but without any success. In August 2000, the effort to inaugurate a new constitution came very close, but failed, the opposition members of parliament burning the draft agreed by the leaders during by-partisan negotiations.

issues-of-new-constitution-making-in-sri-lanka-towards-ethnic-reconciliationOne advantage of constitution making process today is the existence of a ‘national unity’ government of the two main political parties, the UNP and the SLFP, also with the connivance of the official opposition, the TNA, representing the Northern Tamil constituency. Therefore, at least on appearance, there seems to be some broad consensus for the need for a new constitution. This could however be illusory, considering the rifts within the ‘national unity government’ itself on some of the key constitutional issues, and the stance of the almost breakaway Joint Opposition (JO) from the SLFP/UPFA led by the former president, Mahinda Rajapaksa, among other factors. In a recently held ‘foot-march’ (Pada Yathra) of the JO (28 July – 1 August), one of the main slogans was the claim that ‘a new constitution is a death trap.’ In addition, on the issue of passing the Office on Missing Persons (OMP) Bill, the behavior of the Joint Opposition has heralded what they might do during the inauguration of a new constitution.

This is a Create Space publication of an Amazon subsidiary (Charleston, Southern Carolina, USA) of 206 pages with necessary empirical data and tables. There is no single theme or discourse underlying the present publication, except the need for a new constitution reforming many of the institutional and legal anomalies of the present constitutional system, and creating a balance between divergent political views in order that a workable ‘constitutional equilibrium’ is created for a foreseeable future. This is by no means an easy task. There is no apparent readymade agreement between the main political parties, the UNP, the SLFP, the TNA or the JVP, except the need for a new constitution. What elements could create a sustainable ‘constitutional equilibrium’ is also not a self-evident matter.

There can be different understandings of what people mean by ‘constitutional equilibrium’ but here it is mainly used to mean necessary ‘political consensuses’ for its long term sustainability. A major necessary component this equilibrium is people’s trust in the system. As a US Supreme Court Judge, Anthony Kennedy, has declared, “The Constitution doesn’t belong to a bunch of judges and lawyers. It belongs to you.” There can be another meaning, not very distance from the above, to mean ‘equilibrium between various institutions and power centers.’ This is the most traditional interpretation of constitutional equilibrium/disequilibrium. This is about ‘checks and balances’ not only between the three main branches of government – the legislative, executive and judicial – but also between the provincial governments and the central government. As Sri Lanka is and going to be a devolved system of government, the latter equilibrium is much more important and desired. It could be assumed that if an equilibrium could be achieved in the institutional context, then it would be easy to achieve equilibrium or consensus for sustainability of the constitution system as a whole. Then what about the trust of the people over the constitutional system? Unless there is a necessary trust, there cannot be a sustainable constitutional equilibrium in the country. This is also called ‘constitutional legitimacy.’ Wasn’t this a reason for two insurrections in the country in the South (1971) and in the North (1983-1987)?

There are three major areas where constitutional consensus or equilibrium is necessary. First or most popular is the question of ‘presidential versus a cabinet system.’ There has been a long debate on that theme beginning from the initial works of N. M. Perera and A. Jeyaratnam Wilson. Their relevant publications are given in the Bibliography. This may appear the most settled issue particularly after the 19th Amendment, nevertheless there are several leftover matters, whether all the executive powers should be scrapped from the presidency, and how even a ceremonial president should be elected or selected.

The second is the question of ‘proportional representation (PR) versus first-past-the post system (FPP).’ This has also been discussed for a long period although not that systematically like the first issue. One reason seems to be the technical matters involved in any electoral discussion and it is not so much of the FPP that is advocated but having a constituency system where the electors having a clear representative to represent them in parliament. Although one objective to advocate initially a quasi FPP system was to have governmental stability through clear majorities, the concerns seem to settle down today as the new thinking accepts the merits of consensual governments instead of one party dominance. The remaining issues seem to point out the necessary balance rather than one against the other.

The third and most controversial today emerges out of the ‘unitary versus federal’ debate. This has been a never ending dispute in the country linked to the ethnic conflict. Although there is a system of devolution with provincial councils today still there are ‘pull factors’ wanting to re-establish the old unitary system. On the other hand, there are strong ‘push factors’ asking for federalism or even beyond, or failing which to properly implement the Thirteenth Amendment or 13A+. What balance of power could be drawn between the central government and the provincial councils would be a key issue. Much of the efforts of the present constitution makers, if not the whole constituent assembly, might be devoted to this issue, given the sensitivity of the matters involved.

There are of course several other polarized issues such as ‘secular-state versus foremost place for Buddhism’ and the merits and demerits of ‘unicameral verses bicameral’ legislative system. In most of the above underlined controversial issues, there can be a middle ground which could be achieved, if the parties are willing. However, ‘unicameral-bicameral’ issue is something a middle position cannot be achieved by the nature of the issue. It has to be either unicameral or bicameral. If a proper and meaningful devolved system is agreed upon, it is most likely that the constitution might go for a bicameral system. Then the issues would be about the weightage given for the center and the periphery for electing such a second chamber or a senate.

The main premise of the constitutional system in Sri Lanka like in many other democratic countries is the concept of people’s sovereignty. What does it mean? Is it only a ‘cake decoration’ or just a popular slogan to deceive people, while the political elite holding the actual sovereignty? This is not a well debated issue in the country while there have been few attempts. There are of course several devices, apart from the system of elections, which gives the impression that the people are sovereign. One is the provisions for referenda. The other is the constitutional provision for the people to go before the Supreme Court on fundamental rights or to mitigate legislation or executive action which goes against the constitution or its provisions on people’s sovereignty through similar legal procedures. Nevertheless, there are limits. The full range of constitutional review is not within the present constitution. Therefore, one can argue that the reinstatement of full judicial review could go a long way in establishing people’s sovereignty.

However, the gap between the constitutional system and the people are considerable. The National Youth Survey conducted in 2009 (only survey of this kind) amply revealed that the alienation is quite high in respect of the political, constitutional and the state (institutional) system, particularly among the youth. There have been no direct surveys conducted to gather the opinions of the people on various constitutional questions in the country. The partial observations or studies reveal that the knowledge or opinions of the people are quite low and shrouded in misconceptions. For example, as one constitutional expert has opined, when many people say a ‘unitary state’ what they mean is a ‘united country.’ Whether this may be the case or not, the fact remains that the general knowledge on constitutional matters is abysmally low. This is one reason for the continuous imbalance between the constitutional system and the people’s aspirations, while the unscrupulous political leaders utilizing the situation for their political ends.

What path the constitution making process should take? What might be the best? The short answer is the Middle Path. The transformation of the present constitutional disequilibrium (and also ambiguities) into sustainable equilibrium is not an easy task. It requires truly a bi-partisan approach. As discussed before, almost all the issues appear to be ‘bipolar’ due to historical, theoretical, international and political circumstances. At the same time, that nature of the controversies signify the possibility of achieving a middle ground on all or most of the issues, if there is ‘political will.’ The present national unity government, President Maithripala Sirisena as the head, is in a better position to achieve such a middle ground, compared to the previous historical occasions of 1972, 1978 or the year 2000.

For the first time, a constitutional making effort has taken some great pains through what termed as the Public Representation Committee (PRC) during January and May 2016 to gather the opinions of the people and their organizations at various levels on a multitude of constitutional issues that needs to be harmonized. Its Report is now published. Whatever the weaknesses of this report or the Committee’s inability to harmonize their own views, this effort is laudable. Be as it may, the report itself shows considerable imbalances prevailing on various questions and issues in constitution making. Therefore the task is marathon in harmonizing and balancing them. This is one reason why the constitution making process should be transparent and should not be confined to the Committee Rooms of the Parliament. There should be more open discussions on the media (printed, electronic and social) and there is a pressing need for weekly briefings by the Constituent Assembly spokespersons on the day to day progress. Most important is to win the ‘trust of the people’ and the outcome/s of the process should be people’s friendly in its true sense. After all, unlike in the past occasions, the matter has to be finally decided by the people at a referendum.

This book is composed in three parts. Part I covers the ‘general concerns on constitutional issues’ ranging from ‘why do we need a new constitution’ to ‘questions and answers on devolution,’ and ‘a suitable electoral system.’ Part II consists of proposals made by the author to the Public Representation Committee (PRC) on Constitutional Reform running into twenty topics and a draft chapter on ‘fundamental human rights and freedoms’ and a proposed chapter on the ‘local government system.’ Part III places the process of the new constitution making within a broader political perspective, analyzing the ‘democratic political change in 2015’ and emphasizing the importance of ‘ethnic reconciliation’ among other topics. The ‘building of inter-ethnic social capital for reconciliation’ is much emphasized. The Selected Bibliography at the end includes only the sources cited in the text, nevertheless gives a wide ranging theoretical and empirical studies relevant to the subject of new constitution making in Sri Lanka. It should be understood that while some of the articles are of popular/educational nature, the others are more of academic disposition. The substance in all of them, however, is based on independent research or observations without any partisan bias or personal/group interest.

You may order the book through the following link: https://www.createspace.com/6645051

ABOUT THE AUTHOR

Laksiri Fernando (BA, Ceylon; MA, New Brunswick; and Ph. D, Sydney) is a published author with a long standing experience internationally and in Sri Lanka. He has held the positions of Senior Professor in Political Science and Public Policy, University of Colombo; Dean of the Faculty of Graduate Studies (FGS), University of Colombo; Director of the Centre for the Study of Human Rights (CSHR), University of Colombo; Chairperson and Director, Sri Lanka National Centre for Advanced Studies (NCAS); Director of the Sri Lanka Foundation Institute (SLFI); Secretary for Asia/Pacific of the World University Service (WUS Geneva); and Executive Director, Diplomacy Training Program (DTP), University of New South Wales, Australia, among others. He has been a Japan Foundation Scholar and has served as Visiting Scholar/Professor at the University of New South Wales, Australia; University of Heidelberg, Germany; Ryukoku University, Japan; and the University of Sydney, Australia. He has published many scholarly reviewed articles in journals, nationally and internationally. He now lives in Sydney, Australia, on retirement. He contributes regularly to printed and electronic newspapers and journals nationally and internationally that includes the Sri Lanka Guardian, The Island newspaper and the Colombo Telegraph among others.

OTHER BOOKS BY THE AUTHOR

Thomas More’s Socialist Utopia and Ceylon (Sri Lanka); Sri Lanka: Challenges of a Society in Transition (Edited); Sri Lanka’s Ethnic Conflict in the Global Context (Edited); Political Science Approach to Human Rights; A New Electoral System for Sri Lanka (Edited); Police-Civil Relations for Good Governance; Human Rights, Politics and States: Burma, Cambodia and Sri Lanka; Academic Freedom 1990: A Human Rights Report (Edited); and Jathika Viyaparaya, Viyawastha Wardanaya and Vamansika Viyaparaye Upatha.

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  • 2
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    Dr. Laksiri Fernando

    RE:Issues Of New Constitution Making In Sri Lanka: Towards Ethnic Reconciliation

    “The focus of all of them is ethnic reconciliation.’

    The focus of President Gon Gamarala, is to undermine Law and Order, and due Process, Reconciliation,and take payments from the Rajapaksas and other Cronies stolen billions, and protect the Criminals.

    It is not ethnic reconciliation or law and order.

    The focus should be impeachment pf Gon Gamarala for protecting Criminals, including his son Gon Brat Daham.

    We know… we know it from the Bulath Vines, Vettila Vines, Grape Vines… What do we know from the Vine news..The Reason

    Reason behind president’s inflammatory speech known ! Impeachment imminent as attempts are made to rescue criminals

    Lanka Vine News inside information division has been able to track down the reason behind yesterday’s odious and offensive speech of president Maithripala Sirisena which compromised the Independent Commissions including the Police Commission ; criticized the judicial process and sought to rescue the rogues and criminals. This speech was so outrageously inflammatory that it was tantamount to the president voluntarily consuming a cyanide capsule to commit political suicide.

    The investigations into three main and ghastly murders committed by the deposed and discarded Rajapakses during the nefarious decade have by now reached the final stage. The three murders are : Lasantha’s, Ekneliyagoda’s and Thajudeen’s. The criminals responsible for the three murders have been identified , and the crucial question now is , who gave these criminal orders ? What remains is to track down this culprit .

    Even the telephonic discussion for over an hour that was exchanged at Temple Trees at 1.00 a.m in connection with Ekneliyagoda murder had been uncovered . Already 11 reports have been furnished to court by all the intelligence and security divisions that Ekneliyagoda had no links whatsoever with the Tiger organization. Hence this was a clear political murder committed by the Rajapakses .

    Now investigations are at the final stage , and all what remains to be uncovered is , with evidence ascertain who are the Rajapakses who gave the instructions supported by evidence . Maithripala Sirisena made his explosive ‘cyanide speech’ and advanced stealthily in order to save the murderous Rajapakses.

    Based on reports reaching Vine news inside information division , it is a most infamous political Bhikkhu ,and a notorious wheeler dealer minister who sleeps with the Rajapakses on the same mattress who have instilled the necessary ‘poison’ into Maithri and got him round to blabber as he did yesterday . Maithripala who suffers from puerile drives and loses his sane thinking power more often than not , had fallen prey to the poison and destructive proposals , going by his thoughtless and senseless speech yesterday . No matter what ,yesterday’s ridiculous speech of Maithripala was tantamount to turning his back on the very masses that steered him to victory on 2015-01-08, and forcibly displaying his hideous back and bottom to them despite their stubborn refusal to see that ugly sight.

    Indeed the whole country has been provoked by his speech , and Maithripala has incurred the absolute displeasure of the entire population. Never has a leader earned so much wrath and curse of a nation in just a night , and tarnished his image this much. In the event of Maithripala taking the step of bringing the ministry of law and order under his purview or resorts to some other disastrous self destructive action , that will be the beginning of the end of Maithripala with an impeachment motion in parliament staring in his face. The political parties , Civil and professional forces, and pro good governance masses that steered him to victory were hitherto doing everything to save him as long as he was against the murderers , the corrupt and rogues , and discharging his tasks accordingly , have now realized , he is truly protecting and shielding those very criminals most traitorously .

    Under the present circumstances it is certain not even a dog in the street will come to his rescue .It is hoped Maithripala will take serious note of this warning .

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      The fault, Dear Laksiri, is with the rotten, murderous and corrupt POLITICIANS and political culture in Sri Lanka, and much less with the Constitution. How many constitutions has lanka had? Has any thing improved?!

      The exercise of constitution drafting is a grand distraction of the masses by the parasitic politicians – another exercise in DIVIDE, DISTRACT and RULE the Sinhala Modayas, while the politicians of all the parties, particularly UNP and SLFP collaborate to continue to loot the people and national wealth and pile up the debt on the poor people of Lanka. The corrupt politicians use racism and hate speech to distract people from their financial crimes.

      Even the most perfect constitution won’t have a chance with the corrupt and criminal politicians and political culture in Miracle of Modayas.
      Don’t you get it Don?!
      The priority must be to change the rotten political culture and lock up ALL the corrupt politicians who use racism and hate speech to distract people from their financial crimes.

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        Dear Prof. laksiri,
        Tamils want to live as first class citizens in dignity and safety ruling themselves without any interference from Sinhalese. This can be easily accommodated without dividing the country. Moreover this demand appears to be fair to any unbiased international observer. The problem is that except a handful of Sinhalese the rest are not willing to share power or territory with Tamils.

        I have told you several times about what is happening in Britain. Though there is no written constitution, it is unitary for all purposes. Yet extensive powers have been devolved to Scotland which in effect is federal. Srilanka can follow the same practice not calling the country unitary and devolve powers in a federal manner, which even people like you are not willing to accept.

        Similarly north east merger can be effected which will be a win win solution to all. I have explained to you several times in these columns how to do it, but you seem not to take any notice.
        Do you advocate forcing an unjust solution on Tamils or a just solution on Sinhalese. Only an international intervention can bring justice to Tamils by keeping Sinhala racism under check.

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    Please Dr. Fernando do not speak of reconciliation. It is a word the Tamil people do not want to hear anymore. The people of the North wants a kind of devolution similar to Switzerland so that all can live peacefully in a united Sri Lanka. This is what the Tamil people expects in the New constitution but I doubt is not going to happen. The other alternative is for the Tamil people to agitate for a referendum to be held in the North and East for the people to decide their future. That is what the Tamil leadership should agitate for but the TNA is now part and parcel of the so called National Unity government, hence there should be another leadership for the Tamil people.

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      The people of the North wants a kind of devolution similar to Switzerland so that all can live peacefully in a united Sri Lanka.

      Why do you think of Switzerland insteead of Tamilnadu ?

      does that says the whole problem here ?

      • 1
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        People think Switzerland is some kind of ethnic paradise? The Swiss banned burqas and minarets.Remember, BBS had a campaign to ban halal. This campaign didn’t work. So, Muslims actually have more rights in Sri Lanka than Switzerland.

        14% of Swiss own guns. If 14% of Sri Lankans owned guns, that would be equivalent to about 2.9M Sri Lankans.

        Some Sri Lankans complain about VAT. The cost of living in Switzerland is much higher, 63.82% higher than in the States.

        Switzerland is not an easy place to live. You need a high-paying job, you are unlikely to own your own home (since saving is difficult), and if you’re a foreigner, good luck. The Swiss don’t like foreigners.

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      Sellam

      Terms of the referendum should include the condition that “yes” will mean relocation of Tamils in the south into North/East. When you start your agitation we will start our agitation.

      While we acknowledge the Tamil desire to live in the North we will fight out this crafty plan to occupy the south at the same time.

      Please convey this message to all around.

      Soma

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        soma,

        how pathetic you sound! You have obscured your racism within the number game!

        Where do you stand on the following:

        1. Eschewing the foremost place given to Buddhism in the constitution.
        2. Eschewing Sinhala only colonisations within the North & East
        3. Making Tamil language is mandatory in all state institutions
        4. Removing all Buddha statues erected within the North & East
        5. Sri Lankan identity means Sinhala, Tamil, Muslims, and the rest.

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          Burning Issue

          1. No religion should be accorded any preference.

          2. In case a separate political unit is established in North and East all Sinhhalese should be relocated to south and all Tamils (Tamil speaking people) in the south should be relocated to North/East.

          3. All state institutions should employ sufficient translaters to help Tamil speaking people.

          4. Remove all Buddha statues in the North and all Hindu Kovils in the south.

          5. No separate ethnic or religious gr oup should be identified in official documents.

          ESTABLISH EALAM IN THE NORTH/EAST AND PHYSICALLY RELOCATE ALL TAMIL SPEAKING PEOPLE PRESENTLY OCCUPYING SOUTH INTO NORTH.

          UN PEACEKEEPING FORCES MUST BE STATIONED IN THE EAST TO PROTECT THE TAMILS WHO PRACTISE ISLAM FROM THOSE WHO PRACTISE HINDUISM AND CHRISTIANITY AND PROTECT LOW CASTE TAMILS FROM HIGH CASTE TAMILS.

          Soma

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            soma,

            In addition can you also state as to your understanding of the following words:

            1. Autonomy
            2. Power devolution
            3. Separation

            “Remove all Buddha statues in the North and all Hindu Kovils in the south.”

            Buddha statues I referred to are the ones that have been erected since May 2009. So which Kovils would you remove in South?

            How would you expect the minorities to behave?

            “UN PEACEKEEPING FORCES MUST BE STATIONED IN THE EAST TO PROTECT THE TAMILS WHO PRACTISE ISLAM FROM THOSE WHO PRACTISE HINDUISM AND CHRISTIANITY AND PROTECT LOW CASTE TAMILS FROM HIGH CASTE TAMILS.”

            This is not your problem! Only thing we would like you to do to leave the minorities alone without creating troubles among them! You will only have peace when the minorities are at peace. I think your energy should be spent on educating your own community about democracy and secularism. You have no business denying the Tamils their due rights just because your Sinhala are messed up. You do not own Sri Lanka; this is the first noble truth you have to come to terms with and then everything will fall into place.

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              B.I.

              You want my opinion on
              1. Autonomy
              2. Power devolution
              3. Separation

              These words have absolutely no meaning in respect of Tamil speaking people in Sri Lanka in view of their demographic distribution across the island. No one has ever proposed a practical devolution model which can encompass at least 90% of them.

              “You do not own Sri Lanka” is the message I want to convey to my Sinhala brothers and sisters and “You do not own North and East” is the message I want to carry over to my Tamil speaking brothers and sisters. Further I want to tell them that if however you do think so rest of the island belong to the Sinhalese exclusively.

              Thanks

              Soma

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                soma,

                As expected you cannot conceivably answer my question! It is because you know very well that your arguments are baseless. The post independence history of Sri Lanka stands as a testament to that the Tamil nation has been willfully diluted with systemic Sinhala only colonisations. It is because of such myopic practices, among other factors, that drove the Tamils to seek measures to protect their areas. You cannot come on these forums and argue with the Tamils against autonomy and power devolution when we are the victims and you are the aggressors. You get your house in order first before you start preaching us about how to behave!

  • 0
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    We need reconciliation between the communities and not ethnic reconciliation.
    We need to live as one country.

    Why is the author publishing his CV? Is he looking for a job with the Government??

    • 0
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      “Why is the author publishing his CV? Is he looking for a job with the Government??”

      He does need one as he has been working for JRJ and RW for a long time. Shall we say as an “agent” due to lack of a correct expression. That is one of the reasons why we the Tamil and Sinhala people continue to struggle to establish ourselves as trustworthy citizens of one country.

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    “This may appear the most settled issue particularly after the 19th Amendment, nevertheless there are several leftover matters,..”

    Leftover matters include transferring all powers of the executive president to your sponsor. Then he will be no different from MARA. Both are untrustworthy and repugnant. Also, you should have added a subtitle to your book: According to the Anti-Buddhist forces or According to the Anglican Christian Doctrine or how to destroy Sinhala-Buddhists

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