2 October, 2020

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Supreme Court: Freedom’s Last Defense

By Jayadeva Uyangoda

Prof. Jayadeve Uyangoda

The constitution is perhaps the most read official document in Sri Lanka today. Subjected to selective reading, a few of its words and sentences have been gaining some strange interpretations. 

Amidst an unprecedented political crisis, we Sri Lankans are caught up in a war of constitutional interpretations as well.

Since this war of constitutional interpretations has reached the Supreme Court, I was wondering what arguments  lawyers for the petitioners and the state would put forward before the learned judges. 

Arguments by the petitioners’ lawyers would be that the President disregarded constitutional provisions that explicitly lay down limits of his powers with regard to the dissolution of parliament. They will also argue that presidential actions violated both the explicit provisions of the constitution as well as the intentions and the constitutional scheme that guides the meanings and application of 19th Amendment.

It is not clear what arguments the Attorney General would put forward on behalf of the President. However, arguments already advanced by President Sirisena’s lawyers in the media give a clue to President’s legal defence, which may or may not be accepted by the state lawyers.  

These arguments represent two approaches to the interpretation of the constitution, which, I think, are both dubious and erroneous. The two approaches are as follows:

Sarath N Silva Approach: Sarath N Silva, a former Chief justice-turned-political entrepreneur, has advanced a very narrow and technical interpretation to argue that Presidential action of dissolving parliament was well within the meaning of the provisions of the 19th Amendment. In this approach to constitutional interpretation, words and parts of constitutional provisions are abstracted and isolated from both the totality of provisions and the intentions and conceptual framework of the constitutional scheme of the 19th Amendment. This method of constitutional interpretation enables the interpreter to produce strange and even absurd meanings to constitutional provisions. President Sirisena, with a political agenda to pursue, seems to have found Sarath Silva’s version of the constitutional provisions on president’s powers relating to the Prime Minister and  dissolution of parliament politically worth accepting. 

Wijeyadasa Rajapakshe Approach: While sharing Sarath Silva’s narrow interpretation of the constitution, Minister Wijeyadasa Rajapakshe, a leading lawyer-cum-politician with extensive private practice, has advanced an additional political argument. It holds the view that presidential act of dissolving parliament was a political necessity, created by a political deadlock arising out of the deficiencies of the 19th Amendment. In this argument, the 19th Amendment caused a political crisis. Yet it did not have provisions to resolve it. Thus, president was justified in taking a course of actions for which there are probably no explicit provisions. But such actions on implicit grounds are politically justified. 

Both these approaches are based on a dangerous moral (not so moral) doctrine: End justifies means.

One can refute, with relative ease, the validity of both arguments by pointing out the following: 

(a) Constitutional provisions should not be interpreted by applying narrow and technical standards and methods of interpretation when the meanings of constitutional provisions are explicit and unambiguous. 

(b) If there were any ambiguity about the meaning of constitutional provisions relating to presidential powers on any subject, any good lawyer with fidelity to professional ethics should have advised the president to do the correct thing, that is, to seek the advise of the Supreme Court, before taking action on a matter that has massive uncertain, unpredictable, and destabilizing political consequences. President himself, who is constitutionally mandated to defend the constitution, should have chosen the first option of seeking a determination from the Supreme Court, instead of going after self-seeking legal experts with dubious intentions.

(c) Was it the 19th Amendment that caused the political deadlock by sacking the Prime Minister and exacerbated it by proroguing parliament, outside the explicit meanings and spirit of the 19th Amendment? Not really. Instead of saying mea culpa, President Sirisena and his team are now blaming the victims of his own arbitrary action.

I do not know whether these points would be raised before the judges. It may perhaps be the case that the AG’s department will present more sophisticated and nuanced legal defences for President Sirisena. Being a non-lawyer, I am not familiar with the argumentative protocols of lawyers before a Supreme Court bench. But I assume that the judges too follow the news and get a sense of the most unsettling political consequences of what has been happening during the past two weeks. 

One such consequence, so obvious to any alert citizen with a minimum level of constitutional literacy, is that if presidential actions during the past two weeks are given legal legitimacy, by means of crude or sophisticated justifications, that would mark the beginning of the end of Sri Lanka’s democracy and citizens’ freedoms and rights.

Let me explain why I make this hugely worrying speculation.

The doctrine of the end justifies means to constitutional or legal interpretation is one that serves not democracy, but autocratic, dictatorial regimes. So is the doctrine of political necessity implied in the political deadlock argument.  These are doctrines that argue that the yardsticks of democratic constitutionalism, rule of law, constitutional morality, and democracy should be abandoned, or suspended, to suit political agendas of the leadership of the executive organ of the state. 

These are doctrines that seek legal legitimacy for unconstitutional acts ex post facto (that is, after the illegal fact, or event). The arguments to justify the dissolution of parliament fall into this category of ex-post facto justification of plainly unconstitutional executive action.  The strategy of the government is to present to the Court the fait accompli of dissolution of parliament and calling for election, and then secure the Court’s consent on the grounds that the matter is now before the sovereign people. 

Alert citizens have a right to pray that their Supreme Court would also be alert to these political machinations that are designed to subvert the constitution, rule of law, and rights and freedoms of fellow citizens.

If President Sirisena’s actions are given legitimacy, as anticipated by various schools of constitutional immorality, that would mark the end of constitutional democracy in Sri Lanka. After that, liberty and freedom of no citizen would be safe from arbitrary interpretation and application of law and the constitution by those individuals who hold political power. 

That is precisely why it has now fallen upon the shoulders of the judges of the Supreme Court to protect democratic constitutionalism which is under attack by those who know the law, and those who do not know the law, but exercise political power.

On this count, Sri Lanka’s Supreme Court has been called upon to perform a profoundly historic duty of being the final bastion in the frontier Sri Lanka’s democracy and the freedom of citizens. Of the three organs of the state, as defined in Article 4 of the Constitution, the executive, which is supposed to embody people’s sovereignty, has chosen the path of violating the constitution and paralyzing the functioning of the legislature, which is the second organ of the state that represent people’s sovereignty. 

The judiciary is the only remaining organ to which the citizens can pray for the protection of their democratic future, freedoms, and rights, in these troubled and uncertain times. 

And this is the historic moment of destiny for our Supreme Court not to fail the citizens of Sri Lanka and their prayers.

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Latest comments

  • 5
    0

    Dear Dr..
    If our politics allude to human logics and rational reasoning I would agree with all what you say..
    But; we do not ..
    Our political leaders do not.
    M3 may have already placed his man in court ..
    It is reported his man is appointed AG recently ..
    Do you think that such a person would go against him..
    Sri Lanka is not USA or UK to have judicial freedom and impartiality in application of law..
    Law can be interested liberally and with spirit of law ..
    In Sri Lanka wahabi judges would consider the raionales and spirit of law ..
    They will go alone with politicians ..
    So; it will take long time to see true freedom and liberty in Sri Lanka ..

  • 5
    1

    American Supreme Court delivered a judgement against Nixon administration on 30.6.1971 by majority verdict of 6:3, although then Chief Justice Warren E Berger was a dissenter in this case. Sri Lanka being the oldest democracy in Asia, I am confident Supreme court will uphold rule of Law thus setting a precedent, preserving our democracy.

  • 8
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    Thank you Prof.

    We need to honour both Dayan Jayatilaka and Laksiri Fernando by conferring DSc for Pseudo Political Science.

  • 4
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    If SC agrees with the president and his dictorial actions, SC also disagrees with former judges of SC that agreed with the 19th amendment. It also leads non recognition of the 19th amendment that curtails dictorial presidential powers. Finally, SC disagree with the universal franchise that exercised by the people in 2015.

    • 1
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      The architect of 19th amendment is President Sirisena. If the 19th amendment is not legally valid, why should the President allow the 19th amendment in the constitution. President Sirisena came to power with the promise of removal of executive power. The Supreme court may go in favour of President Sirisena but People have to use their power to exercise to get rid of executive power. When the people have the power to deliver the verdict, we need not worry about the outcome of judicial decision even if the judges go against the true justice.

  • 1
    5

    The American Midterm Elections saw the Democrats taking hold of the House of Representatives. This means that they will have great voting/vetoing power in the chamber, overriding and/or reducing Republican President Trump’s policies concerning health care, taxation and immigration. Trump yet retains the executive power. Although Republican, he is thoroughly socialist in many issues and has given due diligence to his constituents. The economy is booming and from updated airports to nutritious school lunches, many things in the US have balanced out for the better of the nation. The congress, in true constitutional fashion will learn to compromise and work with the Republican President, and democracy would have been served yet again.

    Enter Sri Lanka: Money of the struggling Lanka Masses was spent on Midterm elections so that their representation could have been balanced out in Parliament. Did the midterm elections where the Sri Lanka Podujana Peramuna (SLPP) scored the highest votes, obtain any higher voting/vetoing rights in the Sri Lankan parliament? Did the SLPP take over the house? No, the parity of voting solidly remained with the United National Party (UNP) who were hardly voted in nationally by the people. Indeed it has been proved time and time again that it is there to serve Western capital and not the capital of the hard working Masses of our land.

    These midterm elections should have put things in better democratic perspective, but it did not. It was away from the democratic principles the country should be governed by. The newly-fangled articles of the Sri Lankan constitution drawn up by the UNP is therefore illegitimate. It is deeply flawed. Dissolution of the parliament was the best solution out of this conundrum. President Sirisena did the needful.

    • 2
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      Are you confused about two different systems of governance? May be a. require Pradeshiya Saba member representation in the parliament or b. change the constitution to have staggered elections to the parliament. Until then the constitution stands and the parliament stays put for 5 years.

  • 5
    0

    let us hope that our supreme court is better than the US supreme court

  • 1
    2

    Where were you when elections were postponed?

  • 1
    8

    Dear Professor, Uyangoda,
    I am very sad to write these a few lines. You and other so called “Ivory Tower” academics do not understand the suffering of Sri Lankan people. They have patiently waited for 4 years to give their report card to the Yahapalanaya government. Now you and other people are writing articles to hide behind the Constitution (and to avoid the public opinion through the election) which has been amended surreptitiously, by the previous UNP controlled government. It has been reported some of these constitutional amendments were brought or included during the working committee (karaka Saba) stages of the Parliament. Not only this, none of these amendments were proposed during the election of 2015 and they were not supported by the ordinary people of the country. Those amendments were incorporated into the constitution in a haphazard manner as a protection for 4 and half years to survive the Yahapalanaya Government and their cronies. None of these amendments were brought for the benefit of the people.

    I have seen your arguments. I would reject your arguments as undemocratic and against the people’s power of changing the government democratically.

    If you really like to understand the feelings and opinions of the people, go into street and talk to them. Ask the question whether they like the election or not.
    I hope that the Supreme court will provide the validity of the constitutional amendments and validity of the dissolving of the Parliament. That will put the nail in the Yahapalanaya government coffin.

    We need an election in January 2015. So that we, as public, could give a Performance Evaluation report to all the parties who have participated in the Yahapalanaya government.
    Parliamentary election in January 2019 will establish the supreme power of the people.

    I simply ask the question, why you and other Yahapalanya supporters are trying to avoid the general election and trying to hide behind the constitution.

    • 3
      3

      Sunil Dahanayake,
      “I simply ask the question, why you and other Yahapalanya supporters are trying to avoid the general election and trying to hide behind the constitution.”
      —————————–
      $$$$$$$$$$$$$$$$$$$$$$$$$$$$s

    • 1
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      Sunil Dahanayake

      Who is hiding behind what?

      You who are breaking the law are the one hiding behind the election. Hider is a thief who is scared of court.
      If you want to have the election why you did illegally appointed a war criminal as PM before the election?
      Election is illegal. Referendum is legal. Why didn’t you ask the people by a referendum that whom they want as PM , Ranil or Old King. Then you might have been reminded that in the island there are Tamils also living not the just the Modayas you can easily fool.
      Election is for every 5 years fixed. Referendum is flexible, any time when the EP wants it. Election for selecting MPs and change the government, referendum is the one to find out the people’s opinion, i.e if the incumbent government’s report card is good or not. Remember you lost on the NCM in a 225 member parliament from a 106 member party. Just don’t show your big mouth after losing for 106 MPs in a 225 member’s parliament. Can you explain me why could not you harvest the remaining 119MPs votes to win the NCM?

      A criminal cannot stand in election. Old King and his family are not in prison now because New King fired Dilrukshi. Would you bring back Dilrukshi before election? No because you have an excuse you fire her because Old Royals were going to be sued. Were you sleeping the last four years or you misunderstand others were sleeping the last four years?
      You won the LG because Ranil backed off from campaigning in LG to teach UNHRC a lesson in March 2018.
      You are talking about 19A. But do you know the election was after the 19A. Then did the people elected Ranil who had installed the 19A.

      Sunil Dahanayake you are a fraud it seems.

  • 2
    2

    You are so wrong, I feel sorry for you. The blame game should end at the feet of the framers of the 19th amendment. It appears to be a clerical error judicial oversight not to interconnect articles 33 and 70, period. When the country is being sold piece by piece, to foreign entities, and the central bank has been robbed with no action pending, the president acted in defense of the country.

  • 3
    0

    One need to be not ” Einstein” , to know the basis of the Constitution ( Sri Lanka ) which there to protect the sovereignty of nation, the elected parliamentarians mandated by the people and most importantly to protect the people. What the current president has allegedly done is to compromise the democracy and created confusion. Sri Lanka, is reeling from the three decades of civil war and the GDP is gobbled up by debt trap. Little money left, therefore need to borrow more to keep the country running. Current constitutional crisis created by the president will effect uncertainty in all sectors, mainly the tourism sector. Sri Lanka cannot afford this . The mass need to rise up quick and fast.

  • 3
    0

    When letter and spirit of the constitution leads to correct interpretation of the constitution. If the letter is ambiguous, then let us look at the spirit of the constitution to clear any ambiguity.

    The judiciary is the bulwark against the arbitrary interference of the government against the individual rights of the citizens

  • 1
    0

    The President has appointed a man as PM without majority support in parliament. Irrelevant of its constitutionality, but by that dumb mistake, president had to dissolve Parliament. That is illegal. One of the explanations given to make that illegal dissolution of Parliament to appear legal is speaker had functioned one-sided – partition. 1). Appointing a criminal on him internally and externally charges pending, 2). Dismissing an elected PM 3). Proroguing Parliament for illegal purpose and 4). Dissolving parliament to escape from all other crimes committed – all these are constitutional violation and legally punishable action.
    As matter of fact, Ranil agreed if the parliament majority is established he would leave TTH. UNP members has not been outspoken about this if it was a UNP decision or Ranil, on his own, gave out that promise. Ranil was not acting in any way to challenge the EP decision. Beyond the missing challenge, in three various reports, EP has accused Ranil of criminally involved in wrong deeds, serious enough o dismiss him. Ranil’s contests on these have been very sketchy and baffling and trifling. Last three and half years Ranil was known for free allowance of impunity for high class criminals’ dangerous crimes. Ranil might be counting that if those accusations against him are proven he too would be getting the leniency, he freely distributed to his enemies.
    The disturbing, astonishing and fear mongering part in these is Ranil’s indifference to his “expected to be enemies’ actions” . It is said when the doctors checked TTC dwellers blood Pressure, they found out that these incidents didn’t affect Ranil but other UNP members were stressed a lot. Ranil did not move to take any actions against anybody.

  • 0
    0

    The very first action of Challenging EP on his actions came out of Sampanthar, when EP decided to prorogue Parliament to avoid a defeat if they were forced to go for a vote count in parliament. Sampanthar demanded that Parliament cannot be prorogued as it was parliament’s job to confirm the appointment of PM. Many other small party leaders supported him on that claim. This forced the speaker to have a party leaders meeting and about 125 MPs by various means demanded the speaker to convene the parliament. Parliament could not interfere in the dismissal of incumbent PM by EP. But they have a say on the appointment of New PM. While Ranil allowed an easy pass to New King on firing him, Sampanthar with his collogues blocked the confirmation of Old King. Seeing Sampanthar as the roadblock to their plan, Old and New Kings invited Sampanthar for negotiations and he too went and met them. TPNF and some Southern parties accused Sampanthar of conducting opportunistic negotiations. Sampanthar was not transparent to public on his talks. This fueled speculation. But it is not sure what he really negotiated with them and apparently, whatever it is, it was not successful either. .
    The more doubtful matter is even if the appointment was carried out lawfully, if Sampanthar would ever have supported the new SLFP government.
    But one thing guessable was that Sampanthar used these invitations to meet Old King and New King to advise them of their improper ways of handling the issues. These tensionous negotiations, though Ranil had given his assurances through the Hindu’s interview of no legal action, still, left insecure feeling on small parties’ leaders’ gang of some kind of action against Kings. They wanted to going on preemptive action so dismissed the parliament.

  • 0
    0

    This is where the door of opportunity for the small parties’ leaders opened. They say in Tamil, “Pazham Nazhuvi Paallil Vizunththathu’. When PM was dismissed Ranil was blocking the door of legal action; when Parliament was prorogues Karu was conspiring with Ranil. But when the parliament was dissolved the opportunity fell into the hands of these small parties’ leaders’. Yesterday, MPs and non-MPs got together and filed 15 FR cases. This has intruded into Karu’s path; but Ranil is still managing to cheat from opposing of 1). Appointing a criminal as PM without parliament’s confirmation, overlapping a sitting PM. 2). Illegally Firing PM, 3).Proroguing the parliament to use the time for illegal use of Donkey trading, 4). Dissolving the parliament without the consent of MPs.
    Above and beyond Ranil’s & Karu’s protection, SC has been contacted to issue an immediate injunction and then reversal of dissolution. It is said in few hours the court will come out with its first & tentative decision that is an injection.
    The question is, if the court deicide to reverse the dissolution, what is going to be the reaction of
    1). New King – Will he abide or use military to defy the court or even dismiss the court’s justices.
    2). Old Royals – Will they abide or induce New King to defy the court order. Will Old King resign in any case?
    3). Ranil and to lesser extent Karu – Will Ranil ask New king to restore his status? Will he seek any legal retribution from Old and New Kings for the troubles caused by them? If Ranil is not feeling any loss, will he advocate the suffering of his party members went through and the Public Services employee went through and the Civilians went through?

  • 0
    1

    Mallaiyuran,

    I am not biased to MR, MY3 or Ranil. I am an independent person. I noted your cooments given above. You need to understand that there are serious corporate criminal allegations for RW and his other cohorts. Specially the bond scam, I noted that scam happened within the perview of the former PM, RW. He tried his best to cover up the crime. If this happened in any other developing country, the people who involved in that crime would have been in Jail for life time buy now. I blame MY 3 for not prosecuting the mastermind of that alleged crime. If you do not understand what is a corporate crime, white collor crime, simply type the Raja Rajarathnams case, you will get all the details.

    Yahapalanya leaders were involved in more serious crimes than MR and his government. Therefore,
    the Election is a referandum for the past performance and those alleged crimes. So let them face that.

    • 0
      0

      Sunil Dahanayake,
      It is not my point that Ranil is Mr. Clean. If you go through the CT you will see that I am one in the very first few suspected Ranil role in CB looting. But many in this website suspected only Mahendran in that for long time. Now many suspects Ranil as the main one. (Go back in time and read all my comments in those thread taking about CB looting). But we all know until proven all are innocents. Further we know, even after the convicted had exhausted all appeals, still he/she could be innocents. My point legal is proceeding is only process. Depending on how much the process had moved that much the Guilt/Innocent part is already clarified. In that process, PCoI did not find any fault on Ranil. Ranil appointed commission did not find any guilt. Neither DEW nor Hintinetti directly implicated Ranil in that. At this point we know if the case goes to court the thief is going to walk away. In other words, it is proven Ranil is innocent. Then what is point in going back to that again and again? But that is not the case of Old Royals. I don’t have to explain a lot in local Eknaligoda, Lasantha, Thajudeen, Keith…… and in all those cases all the witnesses are there. At no point they are cleared, but implicated more. The part I like to tell you is about the external cases. OISL issued 42 names as war criminals. They were to be handed over to ICC to take them to UN Electric Chair. Ranil (& New King both), for election purposes, claimed that they both saved these 42 criminals from UN Electric Chair. The truth was, in March 2015, America forced Ex. HC of UNHRC Prince Zeid to withdraw that report.

    • 1
      0

      To get this done, Ranil and New King throw all the promises and forced America to tear of that OISL report. Now they have split and the main one(Ranil) for whom America tore off that report, is not in the government anymore. இரவல் தந்தவன் கேட்கின்றான் – அதை இல்லை என்றால் அவன் விடுவானா? (The one who lent you the thing is now asking for it. If you say no, will he let you go?) So, now please tell me about the rest of story of the UN Electric Chair.
      You see Ranil is in CB looting. Nothing is wrong in that. But one Grama Sevaka is now the 3rd richest politician. This guy is bragging he is in the politics for 52 years. Then, could you put some investment formulas in Excel showing how that can be achieved and present it here, so me too can use it to become a rich man?
      1.) Daughter’s book deal was exposed in CT. Please read it.
      2.) Wamanan and Dharskia exposed the Chinese funding for his election in NYT. The CID had collected the cancelled checks. But instead of using CID folders, Ranil asked NYT’s prove to start a case.
      3.) His family men were in the hotel rooms and in the parking lot when Kanthalai Sugar factory bribe was exposed.
      4.) Because of the Russian ship, Lankawe was forced to buy Russian asbestos.
      5.) Last two months he was travelling to many countries, including Seychelles.
      Ranil may not be Mr. Clean. But you cannot make it to imply somebody else is becoming Mr. Clean. I don’t want to fool myself repeatedly keep washing the pot and the kettle to difference between them which is blacker. Just the common sense says they both are equally black. But every time when the election comes kettle and the pot keep claiming they are the Mr. Clean.

      On referendum, that what New King may select

  • 0
    0

    ” If there were any ambiguity about the meaning of constitutional provisions relating to presidential powers on any subject, any good lawyer with fidelity to professional ethics should have advised the president to do the correct thing, that is, to seek the advise of the Supreme Court, before taking action on a matter that has massive uncertain, unpredictable, and destabilizing political consequences.”

    Dear Professor Uyangoda, I agree with you 100% here.

    How do you know, however, if the President did not seek legal counsel before all this? From the way his party is acting they seem very confident. Could they have been all so blind? Is it some sort of a ploy?

    Secondly, you have not addressed article 33A, which seems to give the President power to dissolve parliament.

    Although the Supreme court is the final authority, it is by no means infallible, as evidenced by the dissenting opinions sometimes of the judges. I have the right to personally hold a different view to that of the SC, even dissenting SC judges do that.

    Stating that “And this is the historic moment of destiny for our Supreme Court not to fail the citizens of Sri Lanka and their prayers.” simply betrays your bias, so be it.

    To “Fail” would be to rule on the side of the President , to “Not fail the citizens” will be to rule on the side of the UNP, TNA, JVP and other parties. That is an opinion, which you hold but please accept that constitution that guarantees the right for me and others like myself to hold a different view especially in a muddled case like this.

    Those who value the constitution have to be willing to accept the opinions of others without trashing them, a skill that is rare in our political sphere and on Colombo Telegraph as well, where any Pro- MR statements are met with thumbs down votes.

  • 0
    0

    GL Said in Parliament with 19th amendment, President’s both hands were tightly tied with regard to the dissolution of the parliament until for four and half years.

  • 0
    0

    Is this free legal advise to yahapalanista petitioners? From a former insurgent who was tasked to arrest a sitting PM by force (but abandoned it betraying his group)? Lol

    • 2
      0

      Hela

      “From a former insurgent who was tasked to arrest a sitting PM by force (but abandoned it betraying his group)?”

      It’s the sh***y prime minister who was closely connected to the JVP and went all the way to Geneva to betray this island to the west.
      It was the same sh***y prime minister who hired LTTE to rig the elections.

      I envy your ability to selectively remember crucial events.

  • 1
    0

    Some commentators have very consciously refused to understand what Prof.Uyangoda has written.Some are not competent enough to understand the relevant constitutional provitions in their entirety due to their prejudices.’Political motivation is sometimes blind” they said.

    I am sure our learned judges are in a position to separate truth from falsehood.
    Jagath Siriwardana

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