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Sub-Judice

Hits: 2400 | Published Date: 22 Nov, 2012
| Speech delivered at: 31st Sitting- Tenth Parliament
| Speech Delivered by : Hon. Khemraj Ramjattan, MP

Mr. Ramjattan: The matter upon, which I stand here to speak on, is one that is of utmost importance to this National Assembly, to our Constitution and, quite frankly, to our country as it is a Republic today and, of course, more directly to all Members of this National Assembly. I cannot overstate the significance and importance of this very important topic that we are talking about. I want to indicate that indeed it goes back to, largely, research as to what is a concept well-known in the House of Commons in England and also the House of Lords in England which were the places of origin of what is called Standing Orders, conventions, privileges, immunities and powers of Parliament, and all of those concepts. It is important that we – to give the majesty of our republican National Assembly here – do nothing to delimit its powers, privileges and authority on any question that the majority in this Parliament seeks to promote.
It is the House of Assembly, the representatives here, that earlier on voted that we in the Parliament determine, deliberate, on the issue of this motion. When the Hon. Attorney General got up to speak and to make his inadmissibility objection at that point I thought that it was wholly untimely, largely because the vote was that we in this Parliament will proceed with this motion and to a certain extent, if not explicitly, it was made clear that it is admissible for us to proceed ahead with it. As regards the question that it is inadmissible and it cannot now be determined, I think that the Hon. Attorney General missed the boat when he was so untimely. I wish to make that as a preambular argument.
There is another argument that the learned Attorney General indicated that, again, seems out of place and it is that our Standing Orders are not law; our Standing Orders are something less than law. I wish, however, to remind him that the Constitution Act that brought the Constitution into being – all the articles of our Constitution – indicates in section 9 thereof that Standing Orders are here to stay and it shall be the law governing our Parliament. I wish to quote it. This is our Constitution and our Constitution, of course, could not have been brought in without an Act of Parliament and that Act is cited as the Constitution of the Cooperative Republic Act 1980. The Constitution is merely the schedule to this Act and it is quite clear. This is what section 9 of that Act states. Section 8 deals with Parliament. Section 9 now talks about how we govern this Parliament here, which is this National Assembly.
“The rules and orders of the existing Assembly…
That was the Assembly just prior to the passing of this Act.
“…as enforced immediately before the appointed day shall, until it is otherwise provided  for under Article 165 and Article 173 of the Constitution, as the case may be, be the rules  of procedure of the National Assembly…”
Of course, at that time there was the Supreme Congress of the People, and all of that, which has now been abolished.
“…and shall be construed with such modifications, adaptations, qualifications and   exceptions as may be necessary to bring them into conformity with the Constitution.”
Our Standing Orders have got what is called the sanctification of a Parliament and a Parliament that indeed has not only this National Assembly, but a President assenting to it. If we do have Standing Orders by this Constitution Act indicating that the rules governing Parliament are called Standing Orders, I cannot see how it is that our Attorney General is going to say that we do not have what is called law governing the procedures of this Parliament. It has the force of law.       [Mr. Nandlall: Find out where it says that.]         There is nowhere that says it does not, and you must understand that.
If that Act could bring into the fore the entire Constitution, why can that Act not, by section 9, say that indeed Standing Orders are what we are being governed by? We are being governed by them.
I also want to bring to the attention of this honourable  House that my learned friend, apart from being very misconceived in his argumentation about the sub judice rule, with which he wanted to make this motion inadmissible, was saying that there is something in the Standing Order that he now wants to use to gag all of us.  He used this rule, called the sub judice rule, to state that we, in the National Assembly, cannot speak because there is something in the court, yet he quoted the article in the Constitution that talks about the right to speak. He is urging this National Assembly to state that because Mr. Rohee has the right to speak, under article 146, he should speak, but where the sub judice rule is not explicitly stated as a qualification he wanted all of us not to speak. He wants to gag all of us, but by virtue of a rule in a Standing Order that he was saying that it is not really law. This thing is riddled with what is called self-contradiction by the Attorney General.
I want to indicate to you, Sir, that our Standing Orders are rules that substantively govern the exercise, the discipline, the organisation, and the management of this National Assembly and we must respect those rules. If we are going to use the Constitution, now, conveniently to say that there are exceptions to freedom of expression, which do not qualify, why does he not say that there is nothing in the qualifications that states that sub judice prevents people from speaking? He does not.
I have gone through the Erskine May Parliamentary Practice in relation to this sub judice rule and it, which is the authority, which we call that the bible, has on several of its pages that it is at the discretion of the Chair, that is the Speaker here – I will quote the passage just now – and there is a good reason why it is at the discretion of the Chair to begin with. Matters of national importance can be gagged by virtue of a simple application of the rule and not understanding its origins and the purpose behind it. We had argued this thing very extensively when we had wanted to bring a motion for the investigation of Colonial Life Insurance Company Limited (CLICO). The Government side was in the majority at that time and indeed it was a rule by that Chair that it will not deal with the matter because there was a CLICO litigation in court. However, assuming now that we want to bring to the National Assembly’s attention matters of national importance, quickly the Attorney General ran to the court, filed an action - an action that obviously would have absolutely no merit; it is vexatious as the very first one that he brought in relation to the Committee of Selection – and then comes to this National Assembly when we are about to deal with the motion…
Mr. Speaker: One word of caution, Mr. Ramjattan. Even though I am a named respondent in that matter, I would ask that we refrain from classifying it at vexatious or otherwise. It is pending. I and the Leader of the Opposition, I think, are the ones who are entitled to describe it as such because we are named as the respondents but, that aside, let us avoid the adjectives…
Mr. Ramjattan: Whatever adjective I will use it could very well be one that is without any substance and then Members could come into the National Assembly and use it to gag all of us. What happens then? That is exactly what I am saying: That flawed and misconceived applications can be brought which can then be regarded as shams to the extent of blocking, in this Parliament, in this National Assembly, motions from being debated, Bills from being brought, whatever it is. Hence, the actual House then is stultified, stifled, from carrying out its work and that is what I am saying: It could never be the purpose of this sub judice rule to gag then entire National Assembly from proceeding on its debate. When the learned Hon. Attorney General indicated to this honourable Assembly that the sub judice rule is priority number one, all of us are gagged, if there is a ruling that indeed that be so, but his right to freedom of expression for Mr. Rohee under, article 147, overrides all of that. It is contradictory to the core and to that extent I want not to allow us, by virtue of that kind of circuitous argument, to say that we ought not to hold that this motion is not admissible. It is very much admissible.
There is, also, a larger principle that I wish to draw to the attention of the National Assembly. That is, because we are a Republic now we must give a status that is equivalent to the powers, that be, in relation to the House of Commons on matters of this nature. Our Standing Orders, on which I have argued already, are very much law that govern this Parliament which means that we must adhere to those Standing Orders. The Standing Orders indicate that where we are silent about certain usages and practices we must go back to what is in the House of Commons. What is it that is in the House of Commons now that we have a silence on this convention of ministerial responsibility?
I went through very thoroughly, at the last debate, quoting Diana Woodhouse on “Ministers and Ministerial Responsibility”, that indeed it is a convention that when under the stewardship of a certain Minister things have gone wrong the Minister must resign, but more than that, when there is  a no confidence motion being brought against him, it is a double whammy.  It not only has the atrocities that occurred under his watch the basis for it, but we additional brought a no confidence motion against him, and as you, Mr. Speaker, even mentioned in your ruling that in any other Commonwealth country there would have been a resignation. What that means, by the Minister not resigning or his President not dismissing him, is that a command of this National Assembly is being violated. It is a command by virtue of it being a resolution. Otherwise this larger principle that I talk about would be that in this Parliament we are going to move motions, we are going to make Bills and we could very well have nothing happen, so what then happens to the people’s representatives in a majority situation like this? It means nothing. Is that what we want in this National Assembly to see as  it being just a façade, so we do not have the power if we want to, as a majority here, to state that “Look, Mr. Minister, certain things have happened under your watch and of course there is  a no confidence motion”? It is not as if it is breaching the Constitution, by virtue of the argument as proposed that the President has appointed him, only the President can disappoint him. No! We in this country also have solid authority that we could expel, withdraw, any Member once indeed a motion is to that effect.                                  [Mr. Neendkumar: How laughable.]             How laughable.
[Ms. Teixeira: Why did you not do that for all [inaudible]…]            My dear, they quoted a lot of the cases out of… It is the case of Jagan vs Gajraj. We were running all over the Caribbean and we have the authority here in Guyana, decided by one of the most brilliant judges we ever had, Chief Justice Luckhoo, and what he said at that point in time that caused the issue in this National Assembly was that the two Jagans did certain things that constituted what the Members of that Parliament did not like and the Members of that Parliament then moved a motion for the withdrawal of those Members, clearly out of the place.          [Mr. Nandlall: What was the year of that case?]           This case was in 1963 and we, at that stage, had what was called a colonial legislature. Today we have more a republican legislature and there is section 9 of what is called the Constitution Act, stating that Standing Orders are applicable.
In that case…       [Ms. Teixeira: Chalk and Cheese.]          It is not chalk and cheese. That is why you clearly steered away from the authority and you want to go quoting from the case of Sabaroche, a Dominican or St. Lucian case. You did not want to quote your own case and this is what it says.         [Ms. Teixeira: In 1963 there was a first past the post system.]         What “first past the post”? The representatives were duly elected here, Madam Gail Teixeira, so not because it was first past the post or proportional representation (PR).
Mr. Speaker: Hon. Member, Ms. Teixeira…
Mr. Ramjattan: This is what the learned Chief Justice then ruled:
“The Legislative Assembly, having the power under its Standing Orders, can regulate its  internal procedure relating to conduct and is the sole judge of the occasion and the mode  of exercise of its privileges and power in that regard. Without statutory…
This is number 3.
“…authority the Legislative Assembly has no power to punish a Member for misconduct  by way of committal but has the power without statutory authority to order his  removal…”
It is to expel, suspend him and all of that.        [Ms. Shadick: That is if he does something in the House.]        I am saying that even if he did something outside of the House… He is doing something in the House. We ordered a no confidence motion and he is violating it. That is what we are talking about. You seem not to understand that the convention is being violated and you just absolutely do not understand that.      [Mrs. Backer: She is pretending not to understand.] Yes. That is what they are doing - they are pretending.
“What was complained of by the Speaker if held to be well founded can necessitate his  powers to do just as he did.”
[Mr. Nandlall: What did he do?]        That was to withdraw him from Parliament.                      [Mr. Neendkumar: What did he do?]         He did a very unkind act to the Speaker and we are saying that what Mr. Rohee is doing, by not resigning, is also a violation of this National Assembly and that is what you must understand. You seem not to want to understand that. All these things we talked about when we debated that there is a no confidence motion and you are not going to go back there.
This is it - Number 4 ruling of the Court of Guyana:
“The Legislative Assembly has the power to enquire into the question of privilege  brought to its attention by the Speaker and to exercise its powers in connect therewith.  The Assembly has power to suspend…”
It is for a limited purpose in this case. It has that power to exercise in relation to the…
Mr. Speaker, it comes out of the inherent jurisdiction of this National Assembly to have powers so that it can conduct its business. You do not have to run to some other piece of law. Without anything else, this National Assembly has that power and when the Member was quoting so many cases, the Chief Justice, … Whenever there was a lawyer by the name of Joseph Oscar Fitzclarance (JOF) Haynes, Queen’s Counsel, arguing there will be lots of cases being quoted. Mr. JOF Haynes was arguing this; and indeed, very extensively, all of the privileges and immunities, and all of that, were dealt with in this case. What was stated? They went through a set of cases that said…          [Ms. Shadick: “Within these hallowed walls…”, within here.]   That is right. “Indeed in this House of Parliament power should be over Members otherwise the House would sink into utter contempt and inefficiency without it.” That is what we are talking about. It is without these inherent powers - it is not the power that has to be got from some statute or the Constitution - it could be very contemptuous. It could be a very inefficient House and that is what we are talking about.
When the learned Attorney General indicated that there was no law, the Legislative Assembly, being the legislature has the power inherent in it. How does it conduct that?  It does it generally by a majority vote on the issue. That is what it does, so it does not have to talk about, necessarily, what was the rationale for that. Even the Constitution states this: That without any reason or anything of the sort, if we bring a no confidence motion against all the Ministers over there they are obliged to resign in ninety days. The Constitution provides for that. Indeed, if the Constitution provides…  [Interruption from Government Members.]
Mr. Speaker: Order! Allow Mr. Ramjattan to address… I am not hearing him. I need to hear Mr. Ramjattan.
Mr. Ramjattan: If the Constitution makes provision for the whole I cannot see why we cannot have the no confidence motion in relation to one. We do not want to bring that on. It might come in due time. [Interruption from Government Members.] You can call the elections. Why do you not want to call it? You can call the elections.
Mr. Speaker: Hon. Members.
Mr. Ramjattan: It is getting very disorderly here now. You all are getting very disorderly over there.
Mr. Speaker: Mrs. Backer, are you inviting them to continue in that vein?
Mrs. Backer: It is obviously…
Mr. Speaker: That would be to pay gross disrespect to the Chair, again. Could we have Mr. Ramjattan complete his presentation, please?
Mr. Ramjattan: The platform on which the conduct and management of our affairs, no confidence motions, and thereafter, whatever we would like to see as being effectively ensuring that no confidence motion we can bring in this House. The Constitution makes provision under a certain article that any motion be brought here.
It is stated in article 171…I want it. Although he is on television a lot these days, he is not quoting these provisions, our Attorney General.
Article 171 (1) – Introduction of Bills, etc.:
“Subject to the provisions of this Constitution and of the rules of procedure of this  National Assembly, any member of the Assembly may introduce any Bill or propose any  motion for debate in, or may present any petition to, the Assembly...”
Any Member can bring any motion to be introduced for debate in this National Assembly.
If we brought, as we did, a no confidence motion and now we are bringing a motion to give it teeth so that, indeed, he could be gagged – I will use that word because that is what we want – we are stating that we can so bring the motion. It is admissible. The fact is that article 171 is not only subject to the Constitution, Mr. Speaker. Let me read it again so that the Hon. Attorney General will listen. “Subject to the provisions of this Constitution and the rules of procedure of this National Assembly, any member…” It is so clear that it is subject to the rules of this National Assembly.
We want to make it clear,  that if today we do not ensure that this National Assembly has inherent in it all of these powers we are going to denude this National Assembly of that which makes it of such majesty. We are going to, in a sense, dilute, water down and neuter it to the extent that it will have no power, especially with a majority in the Opposition, to do anything. There is a scenario whereby to shut this motion out when the Constitution provides for it is clearly something that ought not to be ruled in favour of the Attorney General.
He talked about the privilege that his Hon. Minister of Home Affairs has to speak, but this is on a collision course, with the command of this National Assembly by a majority resolution. I want to state that, indeed, it is new ground. It is new territory. It is new seas that we are chartering here on, but it must be understood that when we, in a sense, distil what we have before us, it is the privilege of the Hon. Minister as against a command of this National Assembly.
We are stating, by virtue of what we are, in the limited way, talking about, that we can restrict Mr. Rohee as Hon. Minister of Home Affairs from speaking because of that no confidence motion. We are not in any way indicating…, and we make that quite clear. The concept of what is called…and to answer your question… We wanted to indicate that this due process…We are not abusing his due process here, Mr. Speaker.
Mr. Speaker: You mentioned just now, Mr. Ramjattan, that there is a privilege versus a command.
Mr. Ramjattan: That is right.
Mr. Speaker: You recognise that there is a privilege.
Mr. Ramjattan: I recognise the privilege, but that command is also a privilege.
Mr. Speaker: Agreed. That is where my question about due process comes in. The removing or vacating of that privilege, is it by a command?
Mr. Ramjattan: It is and I urge this National Assembly…
Mr. Speaker: Is the privilege holder entitled to any right of hearing or anything of that nature?
Mr. Ramjattan: Once it is a motion brought and is passed by a majority, just as what happened in the case of Jagan vs Gajraj, he has to abide by it. He went to the court. The two Jagans then, Deryck and Cheddi, famous men, one a Speaker, went to the court for an injunction and it ruled them out of place: that it was inside of this Assembly, go and get your remedy. Do not come to the court.     [Mr. Hinds: What year was that, Sir?]      That was 1965. Only the other day, in relation to the Committee of Selection, my learned friend ran to the court again and said that the National Assembly was wrong. What did the Chief Justice rule? The Chief Justice ruled that his entire application, motion, and whatever it was, was misconceived and flawed.
Let me just read what Mr. Chang said about it.      [Mrs. Backer: You better read slowly.]       Let me read slowly.  It is at page 29:
“This court holds that the motion of the Attorney General is legally misconceived in that  the Affidavit contains no allegations supporting any breach. In other words, the court  finds that the facts that the Attorney General wants to deal with in his Affidavit are  legally incapable of supporting his claim.”
What did Mr. Chang rule? Mr. Chang, Hon. Chief Justice, ruled that indeed he should come here and deal with that issue. This is a matter for Lex Parliamenti, as Erskine May Parliamentary Practice mentions. You do not just run out, because of what? It is because of the concept of separation of powers. Our learned Attorney General, of recent times, however, wants to govern by lawsuit. He wants to govern by lawsuits. He wants to gag us. He wants to let the courts rule that this is wrong, and that is wrong, and we are all wrong and that is not what we are going to allow in this Chamber.
What I want to make as a special argument here is that we are not abusing the Minister’s due process. In this Assembly, just as how Dr. Jagan and his brother were indeed stopped from speaking in this National Assembly, by logic, it necessarily means that when a Member is suspended, that Member cannot talk.  The Member does not have a right to speak. If the Member can be suspended and does not have a right to speak, that Member cannot come and use the Constitution and say, “My right to speech is being denied and I should come in back the National Assembly.” When by that majority those Members were told to withdraw, the court even ruled that if the motion was that they could be expelled, they could have been expelled.                        [Ms. Shadick: It was for misbehaving in here.]          Yes. We are saying that by virtue of him not resigning, he is misbehaving because he is breaching a resolution that called for his no confidence. You seem not to understand that. There is a no confidence in him, which automatically should mean that he goes away, but no, you want to confront…                          [Ms. Shadick: Bring the charges.]         This has nothing to do with charges. As I indicated in my speech on the last occasion, this is a question in the political realm; it is not the juridical realm; it is not under the criminal law realm. We, in this National Assembly, can deal with the questions as to whether we want him out or, at least in this case, to gag him and if indeed this motion is passed, he will be gagged. Then it becomes a resolution and hence a resolution, he has to abide by it. Otherwise, all of the resolutions that we pass will mean nothing. This is what we have…      [Ms. Shadick: A resolution does not have the force of law.]      A resolution, effectively, must be abided here and in this Lex Parliamenti it has the force of law to the extent that we can ensure its adherence.
I want to also make this argument, because it has been spouted all over the place, that the Constitution does not state that we can pass a no confidence motion or a motion of this nature. I want to say that the Constitution never prohibited it. Why is that argument not being acted upon? The Constitution is not going to be a huge document with all of the rules. It will have the general principles. What is being argued by the Hon. Attorney General is: Where in the Constitution does it say so? Well, I want to counter where in the Constitution it does not say so. Where does it say so? There is section 9 which indicates that where these things happen. We can go back.
My learned friend Mr. Nagamootoo indicated that only two days ago in Egypt – not very well known for very democratic traditions – that last week the Minister for Transport resigned after a train accident.        [Mrs. Backer: He was not driving the train.]         He was not driving the train. We mentioned all of the cases from Diana Woodhouse, about Lal Badadur Shastri, under Nehru, as the Prime Minister. There was a train accident and he resigned. There were some many accidents under Mr. Rohee and he does not want to resign.
I want to emphasise what this case has mentioned and where our learned Attorney General is in every respect running away from it. It is that we, this National Assembly by a certain motion, can expel, remove, withdraw, and do all of those things. As I said, the logic here is that we, in this Parliament, on a majority, can do so. That is why they cannot take the new dispensation too. That is why. We are not acting unreasonably or capriciously. We had indicated in a debate, which lasted some twelve hours, why it is that the majority of this House does not have the confidence of the Minister and we stated them all, but still the convention which is supposed to apply…
There is also an additional point. My learned friend is indicating that conventions do not apply where there are written Constitutions. Well, again, in my speech on the last occasion, I quoted Professor Fiadjoe and Professor Phillips who indicated that notwithstanding there is a written Constitution there is nothing in the writing that excludes conventions. Nothing! All of a sudden, because he wanted to make the distinction, he made the distinction that in England there is not a Constitution, which is in writing, so it applies there, but here there is a Constitution. What kind of distinction is that? What kind of distinction without a difference is that? We must not go away thinking that it is because we have a written Constitution it excludes convention.
Conventions are but what is called the lubricant to ensure that there is better governance for the Westminster machinery and this is a Westminster democracy because of its origins, notwithstanding there is a written Constitution.
Here is the fundamental point, Mr. Speaker. When there is a Minister or any Member for that matter not wanting to act on convention and then being disobedient and defiant in the face of conventions the Minister or Member brings to crisis level the National Assembly. It creates disharmony and rancour, and that is why conventions came so that the business of the House can go along pretty nicely by the Minister removing himself.  There is now being created a logjam, a confrontation, and it is said that it is the majority. No! That is why it was regarded as a lubricant by a famous politician whom I quoted. It was a famous politician out of England. I cannot remember his name, but he said that it was the lubricant that ensures that the machinery works. It does not have to be written anywhere. It is a convention and the majority of the House has no confidence in him. The Members over there ought to tell him to go, but they want confrontation and that is what we are ending up here with - we have to debate, deliberate, cuss down each other and whatever it is.                                                                                                                                                     
The Members over there, obviously, do not understand the underpinnings of convention and the underpinnings and the philosophical rationale behind it, which is “please go.” The majority of the House does not want the Member. It is in that context… just as Dr. Jagan and his brother, when they defied the House, the Speaker asked for a motion and it suspended them. It is exactly what we are doing here. He wants to speak and I am saying that in that context we can come with this motion to ensure that that defiance is brought to a halt and we are entitled to do just that. This is something that is very much admissible.
I want to, in ending, indicate that Erskine May Parliamentary Practice, Twenty-first Edition at page 326…      [Ms. Shadick: That is an old book. You need a new edition.]         It is a very expensive book, but it is my book.     [Mrs. Backer: It is not a photocopy.]       I have not photocopied it.  That is Ramjattan’s book.
  “Matters awaiting judicial decision
The House has resolved that no matter awaiting or under adjudication by a court of law  should be brought before it by a motion or otherwise.”
It goes on to state:
“This rule may be waived at the discretion of the Chair. Exceptions have, for example,  been made on matters before civil courts which relate to Ministerial decisions or concern  issues of national importance, matters which have no likelihood of coming before the  courts in the reasonably foreseeable future…”
Listen to this:
“…matters which have no likelihood of coming before the courts in the reasonably  foreseeable future...”
[Mr. Nadir: You are defeating all of your arguments.]        We are not defeating the arguments. We are saying that - if you did not listen to me Mr. Manzoor Nadir - it could be waived.
“… and matters which, though touching upon issues which are sub judice, are unlikely to  be affect any  judgment.”
I want to bring this point…. Mr. Chang is not going to be in any way prejudiced by what we say here. He is the Chief Justice and, just as Chief Justice Luckhoo did, and he might very well say that that motion could be entertained in this National Assembly and it can very well be that again it was another misconceived motion, just as the Committee of Selection’s motion.
Additionally, there are a number of instances, at page 378, where successive speakers have exercised their discretion to allow matters to be discussed, notwithstanding them being in the courts of law in England, because, of course, on one rung, they have considered that as no substantial risk of prejudicing the proceedings which would arise.
As I have indicated, in my preambular point, that Government side over there can block everything that the Opposition brings. That is what it wants to do by bringing this sub judice rule or that adjudicating of matters before the court. If I may say so, I want to believe that that was the reason why it was brought because, as was said by a Senior Counsel, it was a sham.
Erskine May Parliamentary Practice, Twenty-first Edition, has a number of classical examples where this sub judice rule, or that which my learned friend is talking about as to making this motion inadmissible, can apply to waive it. He did not say anything about Erskine May Parliamentary Practice, I noticed. We must bring the total picture to this House. We must not indicate that that there is a Standing Order that states so and then literally defeat that argument by saying that Standing Orders are not law and then want to quote the Standing Orders to gag the whole National Assembly. I cannot understand that.
Mr. Speaker, this motion is very much admissible and I wish that you so rule as regard it.
Thank you very much. [Applause]

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Designation: Second Vice President and Minister of Security
Profession: Attorney-at-Law
Speeches delivered:(25) | Motions Laid:(4) | Questions asked:(8)

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