29 November, 2020

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The Innocent Need Not Fear The Law – Impartial Law, That Is: Australia’s Example

By S. Ratnajeevan H. Hoole

Prof. Ratnajeevan Hoole

Good News

Australians and the world had much to celebrate. More than 26,000 Australian uniformed personnel were sent to Afghanistan to fight alongside US and allied forces against the Taliban, Al-Qaeda and other Islamist groups  Australian troops inducted into the Afghan War as allies of the US after the 9/11 attack in New York in 2001, were accused of massacring Afghans civilians. That is bad. However, the good news is that in Australia, the accused killers are not being celebrated as heroes but are being charged

Australia and Sri Lanka

Sri Lanka and Australia bear nominal similarities. Our population is about 21.67 million; Australia’s about 24.99 million. We are both democracies. Australia extended its adult suffrage to all in 1967 regardless of ethnicity. We  extended our restricted suffrage to hill country Tamils much later in 2003 with the passage of “The Grant of Citizenship to Persons of Indian Origin Act.” 

What is common now is that Sri Lankan troops and Australian troops stand accused of war crimes. But parallels end there. How we have handled war crime accusations is riddled with common features and major differences. 

Handling War Crimes Accusations

One common feature concerns the real heroes – the whistle-blowers. Our own soldiers filmed their fellow troops raping the dead bodies of LTTE-women brutally murdered, and circulated them to reach the Human Rights Council. Likewise in Afghanistan too, it was troops who brought out the ghastly tales of what their comrades had done – new patrol members were coerced to shoot a prisoner in order to achieve his first kill, in a practice known as “blooding” reports AFP, adding that once troops killed a six-year-old child in a house raid and in separate incident a prisoner was shot dead to save space in a helicopter. The 400+ page report reveals the culture of blood-lust among Australian troops headlined CNN.

The alleged scale of Sri Lankan killings is vastly different – more than 39 by Australians and over 40,000  by Sri Lankans according to the UN (while the book Palmyra Fallen by Rajan Hoole through examination of data including family size calculates the figure at over 100,000).

Like our government’s, the Australian government’s first instinct was to scare those who would talk about it.  Australia spent years trying to suppress whistleblower reports, with police even investigating reporters writing about those accounts. 

Likewise in Sri Lanka, Imtiaz Bakeer Marker, MP, informed Parliament that the government is preparing to arrest 200 journalists and social media activists. Moreover, just as Britain’s Channel 4 brought the cruel images into our homes, in 2017 public broadcaster ABC published the Australian allegations. In response, as AFP reports, “Australian police launched an investigation into two ABC reporters for obtaining “classified information.” ABC’s Sydney headquarters were raided last year, before dropping the case. Recall our NGO people going to Geneva and Paikiasothy Saravanamuttu and Jehan Perera getting a grilling on their return.

Good sense however prevailed at last in Australia. In a proper democracy, facts cannot be suppressed for too long because there is a free press.  In Sri Lanka, our press is often too scared to report after what happened to Keith Noyahr and Lasantha Wickrematunge. Our press is yet to report on Australia’s crimes, a major story. Alternatively, much of our press takes a nationalist line ridiculing those who call for justice. Not so in Australia. An inquiry was launched.

In Sri Lanka however, the whole country seems communalist going by recent election results. In the height of the election campaign, even the opposition seemed to reflect the communalism of the government in opposing war crime trials. As Sinhalese fight shy of their democratic duty to call for accountability, to Tamils it seems from that that there are no good Sinhalese left. It therefore urgently devolves on the government to recognize the cleavage its politics is causing and reverse course. 

If Sri Lanka persists in resisting accountability, it is likely that in the present rights milieu, we will ultimately be cornered and forced into trials by the world – if not soon, at least in time. Or the entire human rights regime we have pushed forward with the UN would lose value as a tool of those in power. 

After a year-long investigation, Chief of Defence Force, General Angus Campbell (Chief of Army since May 2015) on Thursday (19 Nov.) admitted there was credible evidence that his special forces unlawfully killed at least 39 Afghan civilians, prisoners, farmers and children, recommending the matter be taken up by a prosecutor investigating alleged war crimes. As AFP reported, Campbell announced “Some patrols took the law into their own hands, rules were broken, stories concocted, lies told and prisoners killed.” The pattern is all too familiar to us. Just imagine our President Gotabaya Rajapaksa or Army Commander Lieut. Gen. Shavendra de Silva making similar admissions. It would transform how the populace views the state, and promote reconciliation.

The office of Afghan President Ashraf Ghani stated that Australian Prime Minister Scott Morrison had “expressed his deepest sorrow over the misconduct.” While AFP mentions that Australian officials dispute this account, CNN does not mention the dispute and gives Prof. Ghani’s account as fact.

In this context,  I met Prof. Ghani in Afghanistan during the 2017 Forum of Election Management Bodies of South Asia (FEMBOSA). We hit it off because of our shared university backgrounds. He was at the head of the table at the state dinner and asked for me to sit on his right, continuing our discussions. I had asked for a vegetarian meal and by mistake the rice had chunks of lamb. In Buddhist Sri Lanka I am usually given “vegetarian” food with Maldive fish and my favorite fried brinjal is ruined for me. I have been in countries where I was thoughtlessly told to remove the meat and eat the rest. Prof. Ghani, however, asked for a new special dish to be brought. That is culture; multiculturalism. I believe his account which fits with Morrison’s announcing the appointment of a special investigator to prosecute the alleged war crimes and Campbell recommending that distinguished service medals awarded to special operations forces who served in Afghanistan during 2007-2013 be revoked. An independent panel was also set up to drive cultural and leadership changes within the armed forces. The Australian government is taking a stern view against the culprits, and is a sound example for us in Sri Lanka to emulate.

Sri Lankan Mendacity

We must  stop denying the massacres. Hundreds who surrendered have disappeared. The International Truth and Justice Project has listed 293 such persons. As JDS Lanka reported, in several instances  the military confirmed LTTE cadres had surrendered to the army, including in 2012 when a Sri Lankan Army Court of Inquiry acknowledged that the military captured LTTE cadres and that 11,800 cadres had surrendered to the military. The BBC cites video evidence on the surrender it calls compelling.

Lying is so endemic to our government that officials inured to it fail to recognize when they make ridiculous claims. When responding to an RTI request after the military had conceded accepting LTTE-ers surrendering, the Information Officer of the Sri Lanka Military, Brigadier Sumith Atapattu, stated, “LTTE members have not surrendered themselves to the Sri Lanka military during the last stages of the war and they have handed themselves over to the Sri Lankan government.”

Former Minister of Rehabilitation and Prisons Reforms, D.E.W. Gunasekera in July, 2010 admitted that he had met the  “widows” of top LTTE-ers V. Balakumar and Yogaratnam Yogi who had been in the army’s protective custody; calling them widows, he inadvertently admitted to their husbands being dead. 

And then, as the BBC reported on 20 Jan. 2020, “Sri Lanka’s president has acknowledged for the first time that more than 20,000 people who disappeared during the country’s civil war are dead.” The conclusion on  government mendacity and how the 11,800+ died dictated by commonsense is inescapable.

India, the LTTE?

What of India and the LTTE owning up to their killings ask those who defend our government. Where there was real crime, the Indian army has presently carried out disciplinary inquiries. For example, as recently as September 2020, NDTV reported  that soldiers involved in a controversial encounter in which three terrorists were claimed to have been killed in Jammu and Kashmir on July 18 have been indicted by the Indian Army. After inquiry, finding that troops exceeded powers vested under Armed Forces Special Power Act, disciplinary action followed. That is another example for Sri Lanka to emulate, sans the exoneration on appeal, or a pardon after conviction as is our template. We are naked but do not know it.

Why should India not apologize for the killings during 1987-1990? The answer is that she should for actions where criminality is undeniable. However, crimes committed in the course of military confrontations are hard to investigate and as far as we know neither the Indian nor the Sri Lankan Army had investigative mechanisms in place then. It would have been better for everyone if they had. The LTTE was itself callous with regard to civilian welfare and in documented instances connived at civilian deaths for propaganda effect and recruitment.  

India came at Sri Lanka’s invitation to preserve the integrity of the Island and left promptly when she was betrayed by Sri Lanka and asked to leave before her job was done. Our government thereby revived the LTTE  and facilitated the return to war.

That brings up the question of why I  do not ask for trials against and apologies from the LTTE for its crimes pointed out by the UN and many Tamils. After the government had killed the very people to be charged and to be asked to apologize, there is no one to be tried or apologize.

In contrast, with persons disappeared after surrendering to the Sri Lankan Army before witnesses and family, there is no excuse for Sri Lanka. The country will be better defended at far less expense if the human qualities of the security forces are improved with the cooperation of the UN and ICJ, and accountability mechanisms put in place.

Einstein’s Thought Experiment

Just imagine Gotabaya Rajapaksa and Shavendra de Silva apologizing to those massacred by our forces, and calling for medals being taken back from our murderous  soldiers! That is reconciliation!

Instead, soldiers accused of war crimes here receive ambassadorships and high government office. What a horrid example! Indeed, our government is vainly expending effort trying to stop through judicial orders the relatives of the dead being remembered in religious ceremonies, even when the courts rule that they have no authority to do that. Every opportunity at reconciliation is being frittered away.

Fearing the Law

For truly innocent people, there is nothing to fear from the full application of the law. If our accused troops massacred no one, they should be the first to ask for a war crimes trial to clear their name. All will concede that – like President Donald Trump having a right to say despite the evidence that the 2020 election was rigged, and being entitled to his day in court – our accused soldiers too have the right to say that they killed no one and allowed their day in court.

The resistance to that normal process shows that they have something to hide.

We Sri Lankans are conditioned not to trust the law. Every experience points to the law being politically biased. People charged and convicted under one government are mysteriously exonerated on appeal under another government. Others convicted under one government, are pardoned under the next. Most in private admit not trusting our legal system.

The Election Commission and the Law

There is really no law to speak of in Sri Lanka. I have documented many instances where the police and the Attorney General have blocked several election complaints from moving forward. We use laws as a tool, deciding to prosecute or not based on influence and political colour.

A good example is a complaint from last Genera Elections by the EPDP against Jaffna’s SLFP leader Angajan Ramanathan, about propaganda meetings at temples and using road development projects, projected as due to personal effort. As usual the Commission took its time and the complaints seemed to have vanished. Then the EPDP wrote again, alleging that the Commission had done nothing, and threatening to take action against the Commission for covering up. 

The matter came up as a Commission paper at a recent meeting. It said that the matter had been passed on to the police and the police had responded that they had investigated and the reported incidents had not occurred. This contradicted independent press reports. We decided to ask the police to check again carefully.

Upon hearing this, EPDP personnel had inquired from the DIG concerned. He allegedly responded that the complaint never came to them and that they never issued a report.

I asked Commission-Secretary for the police report. He responded that he does not have a copy but the Commission Paper came from the Legal Division.

If confirmed, very serious questions are raised over how a Commission can be run when internal documents cannot be trusted. The new Commission, when it takes office, would do well to investigate this if election laws are to have any meaning beyond showing the world that there are laws that are in force rather than laws for show. My experience is it’s the latter.

With real laws, our soldiers have nothing to fear. Sri Lanka needs to look outside for standards or we will end up as a failed state the way we are heading. The Australian example is a good way to start.

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Latest comments

  • 11
    4

    Thank you, Prof. Hoole for the excellent presentation.

    • 2
      2

      Wrong comparison and nonsense! Allied forces including Australia are not supposed to be in Afghanistan in the first place. They went looking for BinLanden in Afghanistan, but was found and killed in Pakistan years ago. And they have changed their original objective and are STILL there by dragging on “war on terror”. No end in sight. Have they found WMD in Iraq YET??????
      Other western troops have also been accused of all kinds of crimes. But their governments are protecting them.

  • 9
    2

    “But CIVICUS said “the most alarming deterioration in civic space [across the Pacific] is occurring in Australia, which has been downgraded from ‘open’ to ‘narrowed’”.
    .
    “Australia has seen the recent criminal justice examples of the prosecution of whistleblower Witness K, who exposed Australian bugging of ally East Timor’s cabinet room under the guise of a benevolent aid project, and the secret trial of Witness J, who was tried, convicted, and sentenced on national security charges in complete secrecy.”
    For some more on abuses (but not all) see:
    https://www.theguardian.com/world/2019/dec/07/australias-civil-rights-rating-downgraded-as-report-finds-world-becoming-less-free

  • 13
    2

    Ratnajeevan Hoole is at best when he writes about human rights, reconciliation and justice. He claims “When responding to an RTI request after the military had conceded accepting LTTE-ers surrendering, the Information Officer of the Sri Lanka Military, Brigadier Sumith Atapattu, stated, “LTTE members have not surrendered themselves to the Sri Lanka military during the last stages of the war and they have handed themselves over to the Sri Lankan government.” is a ridiculous reply. Yogi, Balakumar, Ratnathurai and several surrendered to the Army on the evening of May 18, 2009 at Vadduvakal. They were taken by the army in CTB vehicles for a “short inquiry” after that they will be released soon. However, none of them showed up later. The conclusion is irresistible that they have been executed on the orders of some high-ranking officer. Sarath Fonseka says he knows the person who gave the order to shoot and the officer who carried out the order. Sadly the brave soldier is not naming those involved in the henious crime of murder. Why?

  • 17
    3

    It is reliably learnt that the Sri Lankan military brass is very angry with the Australians for committing their war crimes in a negligent manner and getting caught, and then making it worse by announcing to the world that they are launching an investigation to punish their elite soldiers. They feel this unfortunate development is sure to draw the attention of the international community to other unresolved war crimes as well. They anticipate calls by UNHRC and other international human rights organizations to investigate their own war crimes to gather momentum in the coming months. But what the Sri Lankan government and its armed forces fail to understand is that it is their refusal to investigate and take accountability for the war crimes committed that is damaging to their reputation and standing in the world. Whereas the Australians feel by launching an investigation and punishing the offenders, they’re actually strengthening their armed forces and enhancing the prestige of their soldiers. It takes character to admit one’s mistakes.

  • 8
    5

    https://www.theguardian.com/australia-news/2020/jul/24/asian-australians-threatened-and-spat-on-in-racist-incidents-amid-coronavirus
    The long arm of the law fails to protect victims of racism.
    *
    https://www.theguardian.com/australia-news/2020/nov/21/australian-special-forces-soldiers-incensed-brereton-afghanistan-war-crimes-inquiry-clearing-commanders
    The big war criminals seem to getaway with it. What follows is a pathetic defence of the flawed inquiry that netted a few small fry. That too after the targets created a big stir.
    https://www.theguardian.com/australia-news/2020/nov/22/australian-war-crimes-allegations-defence-chief-says-commanders-will-be-held-accountable-case-by-case
    *
    Australian policy and practice in detaining ‘illegal immigrants’ are among the most cruel in the world.
    “Amnesty International, the Australian Human Rights and Equal Opportunity Commission, Human Rights Watch, and the United Nations. Journalists are forbidden from entering the detention centres.” So much for openness.
    *
    Let us not glorify a country which is still racist at heart.
    As for India’s handling of its police and army brutality there is plenty of information that those who commend India’s penal system choose to ignore.

    • 4
      4

      You’re straying from the theme, SJ and employing a classic ploy of pointing out one flaw to diminish the broader value of the Aussie admission of there being “credible evidence that Australian special forces unlawfully killed at least 39 Afghan civilians, prisoners, farmers and children, recommending the matter be taken up by a prosecutor investigating alleged war crimes.”

      The authorities in Sri Lanka have taken deception, denial and mendacity to the highest level. I think Hoole illustrates this adequately in this article, don’t you think?

      • 2
        1

        I am well within the theme, ES.
        We are told about Australia having an impeccable system of justice.
        It is exactly that which I questioned.
        Do you accept that, as the Guardian said, those who carried out orders to kill were chosen for punishment while those who gave the orders were spared.
        A woolly offer to look into that aspect was made after the former protested, and the media took notice.
        I only elaborated to say that sparing the real offenders was no slip but part of a mindset.
        *
        Go through the article to find who strayed from the theme and how far.

  • 11
    2

    “LTTE members have not surrendered themselves to the Sri Lanka military during the last stages of the war and they have handed themselves over to the Sri Lankan government.”

    Pray, what is the distinction? If this is the kind of nitpicking drivel that government spokesmen spout, then there is absolutely no hope for this country.

  • 7
    3

    That is why we call it “DEMOCRAZY” , in Lanka. Now that we have 20 A , we may not have to deal with any of this , near future. Obama in his best selling memoir mentioned ” UN failed in preventing the human SLAUGHTER took place in Lanka”.

    • 0
      1

      Chiv,
      .
      to their eyes ( their means Rajapakshes), they are not human slaughter. This would remain so until one of Rajapakshes men would be met with the kind of attacks. I though a sinhalse, I truly believe, if Gadafi, Sadam and the like families ended up facing the karma, why not Rajapakshe ?::: Wait and see..

  • 10
    0

    It is sad that Buddhist Sinhala are afraid to stand for human rights violations or war crimes or human slaughter by their Governments whether it happens to ordinary Sinhalese or ordinary Tamils or ordinary Muslims. Human slaughtering happened in 1958 (Tamils), 1970 (Sinhalese), 1977 (Tamils), 1983 (Tamils), 1989 (Sinhalese), 2009 (Tamils) 2019 (Muslims).

    • 5
      0

      1970 (Sinhalese): It should be 1971.
      You forgot Aluthgama (2014) and Kandy District (2016)
      Tamils were at the butt end of a civil war from 1983 to 2008. (There were also killings of Sinhalese and Muslim civilians by Tamil militants.)
      *
      There was the well attended march to Kataragama in 1992 protesting human rights violations by the UNP regime.
      The people ditched the UNP in 1994 in return for its killing of the innocents. The UNP never really recovered from that clout.

    • 0
      1

      Ajith,
      Sinhalayo who gave citizenship to Dravida laborers were not that crazy to kill or harass Tamils just for nothing. Although Tamil Diaspora carried out their vicious anti-Sinhala propaganda campaign blaming Sinhalayo it was Tamils who started anti-Sinhala riots after British left. When provoked by Tamils, Sinhalayo reacted.
      Tamil leaders in the North who supported terrorism should apologize to Sinhalayo for the heinous crimes committed against Sinhalayo if they want reconciliation. Otherwise talking about reconciliation is a waste of time.

      • 1
        0

        Eagle Brain Dead Blind Eye

        “Sinhalayo who gave citizenship to Dravida laborers were not that crazy to kill or harass Tamils just for nothing. “

        Who are these Sinhalayos?
        Who did give Sinhalayos citizenship?
        You have a problem with facts, dates and events. Why don’t you pull your head from wherever it is now?

    • 1
      0

      Ajith,
      .
      as you added above, Rajapakshes woudl not care much about the srilankens. Their only aim is to loot the state and abuse the power for their own survivals. Unfortunately. human shields are being made by them with the direct mediation of so called srilanken buddhist monks (aka saffron clad fake monks). Srilankens will never be able to see it beyond.
      :
      Not just sinhalese,but tamils and muslims too have not acted properly in the recently held elections. Most of all muslims and their representatives betrayed their own community. I really dont know why people down there in my home country behave like DEAF and BLIND ?

      • 0
        1

        Mr. eLM (eternal Loose Motion),
        .
        Have you considered the possibility of YOU are DEAF and BLIND……?

  • 4
    2

    Jeevan says, “Just imagine Gotabaya Rajapaksa and Shavendra de Silva apologizing to those massacred by our forces, and calling for medals being taken back from our murderous soldiers! That is reconciliation!”

    Yeah, just imagine.

    Any bets on whether Shavendra will take back Gota’s medals, or whether Gota will take back Shavendra’s medals?

    Or will they will rip them off each other’s lapels concurrently, surrender (oops, hand themselves in) to the authorities and then Gota will pardon both?

  • 1
    2

    his comment was removed by a moderator because it didn’t abide by our Comment policy.

    For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2

    • 0
      0

      CI
      “his comment was removed by a moderator because it didn’t abide by our Comment policy.”
      Sure of the gender?

  • 1
    2

    This comment was removed by a moderator because it didn’t abide by our Comment policy.

    For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2

  • 1
    2

    —“The Grant of Citizenship to Persons of Indian Origin Act”— No Tamil has ever applied for Sri Lankan citizenship, but idiotic successive Sri Lankan governments have granted Sri Lankan citizenship to them willy nilly due to threats from India.

  • 2
    6

    The situation in Sri Lanka is completely different. Sri Lankan war heroes fought in their own mother land to thwart the attempted invasion of parts of Sri Lanka by India created-trained-armed Indian LTTE Tamil terrorists. The bogus accusations have been made by bitter looser LTTE terrorists and their backers against war heroes. Even with their own choice of judges, LTTE and their backers are unable to go to court due to their recruitment of child soldiers, suicide b*mbers, utter barbaric attacks on innocent Sinhalese, drug smuggling, human smuggling, money laundering, etc, etc, etc.
    If you don’t want war crimes, then don’t start wars. Simple as that.

  • 1
    3

    Instead of blaming Sinhalayo for nothing people like Prof. Ratnajeevan Hoole should play an active role to eliminate human rights violations committed by high caste Tamils against fellow Tamils of low castes.

    • 1
      0

      But EE, if you have a brain the size of a needle head, you should equally raise the question, why we sinahalya to bother about human rights violations committed by high caste Tamils against fellow Tamils of low castes.?

      Today s problem is clear to us and international community that srilanka should finally bring a solution to the long standing ethnic issue of the fallen nation. If anyone would make every effort to paint the picture in favour of some agendas, we would not reach an inch of progress towards sustainable peace and harmony in this country or not ?

      Your kind of questons, could rain from those SPENT enough within MULLERIYA or ANGODA – but you shamelessly continue your unique question as if one would not only walk on a curve.
      :
      Get well EE, give a us break !

  • 4
    0

    “That brings up the question of why I do not ask for trials against and apologies from the LTTE for its crimes pointed out by the UN and many Tamils. After the government had killed the very people to be charged and to be asked to apologize, there is no one to be tried or apologize.”
    *
    There are many. Some are now part of the government.
    There are those who were the overseas arm of the LTTE that generated funds and channelled arms to the LTTE and continue to be advocates of the LTTE’s line.
    *
    Even otherwise, charging the offenders posthumously or in absentia is all the more necessary to bring out the facts, especially when only one party seems to be put in the dock. It will also be a deterrent to those pushing the LTTE line here and abroad.

  • 1
    0

    Not true.

    Only the top level LTTE leaders died in 2009. The larger population of Tamil expatriates who financed LTTE terrorist activities are still around and active. What of likes of Ananthi Sasitharan? The woman has now forgotten all dastardly acts her husband did. The Tamil expatriates contributed money to Eelam project knowing very well it was being used to slaughter innocent Sinhalese civilians. Except for a handful of individuals like DBS Jeyaraj not one of them wanted LTTE to let go the Tamil civilians it was holding hostage. Deaths of these civilians are on their hands. Even now the likes of Visuvanathan Rudrakumaran are lamenting that international community should have enforced a ceasefire instead of asking LTTE to disarm. People living in glass houses should not throw stones…

    • 0
      2

      nn
      Be fair.
      One cannot be blamed for the acts of the spouse.
      Whether Ananthi’s husband was guilty of war crimes has to be established.
      Being a member or a supporter of the LTTE does not make on a war criminal.
      The logic that makes any member/supporter of LTTE a war criminal will make supporters of the government as vulnerable, especially ones who still deny war crimes or worse justify them.
      The deaths of civilians are collectively on our hands, as we failed to do enough to stop the war.
      We have let down several generations to come.
      It is not easy to accept fault; and temptation is strong to make excuses for ourselves to avert a feeling of personal guilt.

  • 1
    0

    SJ: my comment was for Hoole’s statement “why I do not ask for trials against and apologies from the LTTE for its crimes pointed out by the UN and many Tamils”.

    Anyone who knowingly supports any kind of criminal activity shares responsibility for the crime along with the actual perpetrators. All members/supporters/financers/advisers of LTTE are responsible for crimes of LTTE whether or not they took part in terrorist activity themselves.

    Likes of Ananthi and Rudra are guilty by association.

    Expatriate Tamils who supported LTTE saw nothing wrong in LTTE using Tamil civilians as a human shield. They are as much responsible for the death of these civilians as anyone else. Perhaps it is that guilt that drives them to be such vociferous advocates of human rights now. That’s why Hoole’s excuse “it is not possible to pinpoint specific individuals” is a lame excuse. The organizations that campaign for justice today are the very same ones that said nothing against human shields back in 2009.

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