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Promoting the use of habeas corpus should be vigorously pursued in Myanmar as a remedy for arbitrary arrest and detention, argues the International Commission of Jurists.

This article was published in Frontier Magazine on June 30th. http://frontiermyanmar.net/en/habeas-corpus-plea-action 

By DANIEL AGUIRRE | FRONTIER

“I’ve been in jail for almost a year and I don’t know what I am charged with,” a detainee in Yangon told the International Commission of Jurists earlier this month.

Another complained that when he was arrested, “the police had no warrant and did not inform me about my crime”. Neither detainee had enjoyed the human right to challenge the lawfulness of their detention.

Such complaints are common, as the ICJ has said in its new Handbook on Habeas Corpus in Myanmar. The ICJ’s analysis shows that, notwithstanding some reform, security forces often arrest and detain people without following proper procedures, in violation of Myanmar’s national laws and international human rights obligations. There continue to be multiple cases of arbitrary or unlawful arrest and detention in the country, sometimes used to suppress political dissent.

Reintroduced in Myanmar under the 2008 Constitution, habeas corpus has been described as “the great writ of liberty”. It affords anyone detained, or their representative, the right to challenge the legality of arrest and detention before a court. It is a key legal device to prevent unlawful detention, torture or enforced disappearance.

Habeas corpus puts a duty on the courts to review the lawfulness of detention and on the security forces to prove they acted within the law. If detention is unlawful, the court must free the detainee immediately. Under international law, it is applicable at all times to anyone (not just citizens) under any form of detention, including during a state of emergency, even in countries, such as Myanmar, that are not yet state parties to relevant international treaties.

It is crucial that this writ be used to ensure that nobody is detained without due process or solely for lawful political dissent, as is the case for many political prisoners.

Although articles 296(a) and 378(a) of the 2008 Constitution guarantee the right to habeas corpus, the ICJ could not find a single case in which the writ had been used to overrule an unlawful arrest or detention.

Another tool for protecting detainees’ rights is Section 491 of the Criminal Procedure Code. It allows High Courts to summon and release wrongfully detained prisoners. However, Myanmar judges and lawyers said it has not been used in decades.

When Myanmar’s military rulers began cracking down on political dissent and imposed authoritarian rule, they naturally got rid of habeas corpus. Despite its reinstatement, habeas corpus remains politically sensitive, as it requires the judiciary to review and rule upon the actions of the security forces.

The ICJ has observed and documented several cases where the failure to comply with due process rights could have been challenged through habeas corpus proceedings. For example, the detainees who spoke with us this month have never been properly charged and their alibis never properly examined in court. Others are arrested solely for exercising their right to freedom of expression. We have monitored a number of manifestly unfair trials.

However, Myanmar lawyers remain reluctant to petition for the writ of habeas corpus to challenge the actions of government agencies. Their hesitation is partly the result of the systematic dismantling of Myanmar’s legal system, which has rendered judges, lawyers and government officials unfamiliar with international standards. Few have ever seen the writ of habeas corpus used properly. In addition, the Myanmar judiciary remains drastically under-resourced and requires capacity building.

Another practical obstacle is that only the country’s Supreme Court can hear habeas corpus petitions and it is based in Nay Pyi Taw, a situation that discourages many lawyers from incurring the costs and logistical difficulties involved. Contrary to international standards, the constitution suspends the writ during declared emergencies, which means that it cannot be used in the places that need it the most. Moreover, lawyers claim that the petition process can take months, when international standards call for it to be simple, expeditious and free.

In addition, many lawyers say that habeas corpus is not useful to protect their clients because Myanmar’s judiciary is not yet independent. Indeed, the ICJ’s research shows the courts are often unwilling or unable to challenge the government and the military. Until the courts are able to enforce judicial procedures such as habeas corpus, the rule of law and human rights will remain elusive.

Lawyers must bring habeas petitions on behalf of their clients. Not only does this create a record documenting purported human rights abuses, but it will also increase pressure on judges to rule on petitions. The courts must fulfil their role as guarantors of the constitution and human rights.

The new government and the judiciary have committed to the rule of law and human rights. Promoting the use of habeas corpus will help protect the rights of people in Myanmar and strengthen the independence of the judiciary, as well as the rule of law in the country. It is already on the books and it should be vigorously pursued as a remedy for arbitrary arrest and detention.

Re: Burma Responsible Investment Reporting Requirements

We write in response to the public reports submitted by U.S. companies in compliance with the Burma Responsible Investment Reporting Requirements (“Reporting Requirements”) issued by the US Department of State.

Composed of 60 eminent jurists and lawyers from all regions of the world, the International Commission of Jurists promotes and protects human rights through the Rule of Law, by using its unique legal expertise to develop and strengthen national and international justice systems. The ICJ appreciates the U.S. government’s efforts to promote responsible investment in Myanmar and to ensure that U.S. companies are responsibly managing their business activity in the country. We support your decision to continue to sanction businesses under the National Emergencies Act barring U.S. individuals and companies from investing or doing business with people linked to human rights abuses under the army’s military rule.

The ICJ urges caution over the United State’s recent decision to allow for an exception to the sanctions regime for people who have already been documented as having links to the military regime and implicated in human rights violations.1 This caution reflects the ICJ’s work with the Directorate of Investment and Company Administration, the Attorney General’s Office, and the Union Supreme Court of Myanmar, as well as civil society organizations, to strengthen and support local efforts at ensuring that investment protects and promotes the rule of law, human rights and the environment. In this regard, the ICJ has visited and researched on the human rights and environmental impacts of investments in the 3 Special Economic Zones (“SEZ”), as well as other non- SEZ sites, in the country.

We believe that future reporting must be strengthened to ensure that U.S. companies comply with the Reporting Requirements, conduct due diligence and disclose adequate information transparently about the impact of their business practices on human rights in Myanmar. This is especially crucial in light of significant reporting gaps in July 2013. Failure to strengthen the requirements will undermine the goal of the Reporting Requirement to be a tool for promoting investment that reinforces those political and economic reforms that are compliant with the rule of law and human rights and help to empower civil society.

The full document will be available on the ICJ webpage at: http://www.icj.org later today. The full document is attached here: Myanmar ICJ Letter to US State Dept 25Jan2016

Judicial Accountability: 2015 Geneva Forum of Judges & Lawyers

More than 40 senior judges and lawyers from all parts of the world – including Myanmar – have made an important contribution to efforts to hold judges accountable for involvement in human rights violations and judicial corruption, by participating in the sixth annual ICJ Geneva Forum of Judges & Lawyers.

The Geneva Forum is organized annually by the ICJ’s Centre for Independence of Judges & Lawyers (CIJL) and brings together judges, lawyers and prosecutors from around the world, together with UN officials and representatives from international professional associations of legal professionals, as well as academics and other experts.

This year’s Geneva Forum (14-15 December) formed part of a larger CIJL project to promote judicial accountability, through sharing of knowledge about relevant international standards and international and national good practices, between the judiciary, other legal actors, and governments and civil society around the world.

The focus of the project is on judicial involvement in human rights violations such as unjust executions, prolonged arbitrary detention including imprisonment after deliberately unfair trials, judges providing impunity to perpetrators or enforced disappearance and torture, as well as judicial corruption that leads to human rights violations.

Victims of such violations have the right to remedy and reparation, including in relation to the role of judges, and society as a whole should be able to be confident that those responsible for such judicial misconduct will be held to account.

For more information see: http://www.icj.org/judicial-accountability-2015-geneva-forum-of-judges-lawyers/

Article by by  | 02 Nov 2015

Burma citizens are experiencing an unprecedented degree of economic and political freedom, but the balance of power has changed little.

http://bigstory.ap.org/article/ad5147753401412fac8d88324b610952/myanmar-reforms-have-long-way-go-change-power-balance

RANGOON — The sweeping reforms Burma announced in 2011 after a half-century of crushing military rule seemed too good to be true to much of the outside world. And to some degree, they were.

Burmese citizens are experiencing an unprecedented degree of economic and political freedom, but the balance of power has changed little. Most of those in charge are former military men who have just swapped their khakis for suits and longyi—the sarong-type skirt traditionally favored by both men and women in Burma.

Opposition leader Aung San Suu Kyi, whom the junta kept under house arrest for years, now tours the country stumping for votes. But even if her National League for Democracy wins the Nov. 8 election in a landslide, the odds are that the generals and their cronies will continue to dominate both politics and the economy.

Many familiar with Burma’s government say that while it has made significant reforms in the past five years, it still faces a long journey to achieve a stable, prosperous democracy.

“This is a huge improvement and we have to keep it in context for what it is,” said Daniel Aguirre, legal adviser in Rangoon for the International Commission of Jurists. But he adds, “The prevailing narrative of ‘open for business and everything’s fine’ is completely, way off.”

For the full article see: http://bit.ly/20pRFF2

This Myanmar Case Study will demonstrate the connection between an inadequate regulatory system—where land law is incomplete or ignored and the judiciary does not provide access to remedy—and land related human rights violations. In the context of ethnic and religious violence, these violations increase conflict. Using examples of several large-scale investment projects in Myanmar, the Case Study shows that inadequate regulation and an ineffective judiciary result in forced evictions and other land related human rights violations. These can indicate further rights violations and potential conflict.

GOVERNANCE OF TENURE: INADEQUATE LAND LAW

Myanmar’s land law does not adequately prevent human rights violations against the rural people who comprise 70% of Myanmar’s population. Myanmar’s constitution makes the State the ultimate owner of all land. New Laws enacted in 2012 such as the Foreign Investment Law (FIL), the Vacant, Fallow and Virgin Land Law (VFVL) and the Farmland Law aim to increase investment, encourage large-scale land use and promote agricultural income. These laws undermine land tenure security to promote development. More than half of Myanmar’s people do not have land title under these new laws and instead rely on customary land rights and shifting cultivation on communal lands. Communities engaged in traditional farming practices or other communal activities occupy much of the land declared VFV by the government.

The land law remains a patchwork of at least 34 new and old laws governing different aspects of tenure. This patchwork creates overlapping legal regimes that have their own implementation committees. As of yet, Myanmar lacks an Umbrella National Land Use Policy and consolidated National Land Law, although a drafting process is currently underway.

Myanmar lacks detailed procedures on land acquisition, relying primarily on the colonial era Land Acquisition Act of 1894. The Act lacks modern common law substantive and procedural protections and reference to recent international standards. (It has, however, been recently updated to increase fines and jail sentences for those who interfere with government officials.) Its application is inconsistent and the procedure lacks transparency. While the law sets out procedures for undertaking preliminary investigations, notification, and objections—which would help mitigate land related human rights abuses—in practice these procedures have rarely been followed.

Inadequate compensation is a common complaint. When people are relocated, they are not compensated at market value for the land. Instead they are given alternative homes that inadequately compensate for lost livelihood. Even compensation provided for crops is allegedly insufficient. This is despite requirements in the 1894 Land Acquisition Act for fair compensation at market value.

Villagers lack access to justice, as no formal means are available to appeal decisions. Myanmar’s judiciary is not independent from political and executive branches of government, and lacks the resources or the capacity to deal with complex land cases. Decisions by the implementing bodies related to various land laws, such as the Farmland Management Body and VFV’s Central Committee, are often considered final. This means that in practice lawyers do not challenge their rulings and that the judiciary does not fulfill its role in overseeing executive decisions.

In Myanmar, there is still ambiguity about the roles of environmental impact assessments and environmental management plans. The Environmental Conservation Law enacted in 2012 requires significant refinements. Even though impact assessments are required for all major development projects under the Foreign Investment Law, the precise environmental and social standards expected for investors have yet to be articulated. The procedures for impact assessments remain in draft form.

Investors continue to be granted land obtained illegally or under uncertain circumstances. Many local communities suddenly find themselves trespassing on land they have farmed for generations. Those living there and in the surrounding communities are routinely charged with trespass while their environment and livelihoods are degraded. This is bound to cause local conflict. In conflict zones, this situation exacerbates existing tensions.

LAND RELATED HUMAN RIGHTS VIOLATIONS: MYANMAR CASE STUDIES

Inadequate land tenure and land regulation in Myanmar result in land related human rights abuses as people are relocated to make way for large investment projects. Forced evictions and environmental degradation result in a variety of economic, social and cultural rights violations as people lose access to land, livelihoods and housing. Their civil and political rights are violated in turn as they lack access to justice, a right to remedy and basic fair trial rights. They are often wrongfully charged with trespass and imprisoned for protesting, violating their right to free expression and assembly. Where violations occur in conflict zones or areas of ethnic/religious tension, militarization occurs and conflict escalates, disproportionately affecting vulnerable communities.

The Myanmar Stark Prestige Plantation (MSPP) project is a palm oil plantation joint venture between the Myanmar company Stark Industrial and the Malaysian company Prestige Platform Sdn Bhd in Tanintharyi Region, southeast Myanmar. The plantation has been granted 40 000 acres and approved by the Myanmar Investment Commission. Villagers have reported uncompensated land expropriation. MSPP has responded by stating that the land was declared legally vacant before the company entered.

In Myanmar villagers lack such documentation but are required by the 2012 Farmland Law to demonstrate the legality of their tender. In absence of documentation, the government may label land ‘vacant, fallow, or virgin’. Even where land is unoccupied, it is often used in traditional shifting cultivation practices, which is not acknowledged under the 2012 Vacant Fallow and Virgin Lands Management Law. For MSPP, villagers allege their land was allocated as VFV to the company without consultation. The area is controlled by ethnic armed group the Karen National Union (KNU), stoking tensions further.

The Ban Chaung coalmine is located in Tanintharyi Region, southeast Myanmar. The KNU has given permission to Mayflower Mining Enterprise to operate only within a sixty-acre area, while the government has permitted more. In Ban Chaung, an area marked by ethnic conflict, it is normal for farmers to have their land rights unacknowledged, and for ‘VFV land’ to be owned or used by local villagers. There are conflicting claims based on a variety of tenure arrangements that are not recognized by the government. Villagers allege the mining companies are responsible for land grabbing, environmental damage, and health and safety concerns and that companies misrepresented community consent for the project. Community members have engaged in several acts of protest against the mining operation, and have petitioned both the KNU and government officials to have the mine closed.

Both Ban Chaung and MSPP bring up issues of lack of informed participation and consultation for affected communities. Where the government allows business activities to effectively push villagers off their land without access to legal or other protections it amounts to forced evictions.

The Letpadaung copper mine is a joint venture between Chinese company Myanmar Wanbao and the military-owned Myanmar Economic Holdings Limited. In order to make way for the mine the government forcibly evicted thousands of people, depriving them of their main source of livelihood, after nationalising their land in 1996 and 1997. The government used colonial-era land laws and provisions of Myanmar’s Code of Criminal Procedure to push people off land they farmed and to evict entire villages with no compensation, consultation or legal remedies.

Further forced evictions were carried out for the Letpadaung mine between 2011 and 2014. In this case the government deliberately misled people, telling village meetings that they would be given compensation for damage to crops while not mentioning land acquisition. Residents have complained for years about unlawful land confiscations and environmental damage caused by the mine’s operations. In November 2012, dozens of protesters, including monks, were severely burned when riot police allegedly used white phosphorous to disperse them.

The land related human rights abuses at Wanbao’s mine should have been prevented by a regulatory system that demands thorough Environmental and Social Impact Assessments (ESIAs). ESIAs are important before a project is approved in order to identify potential impacts, assess alternatives, and avoid or mitigate serious human rights and environmental violations. Typically, they would lead to the formulation of environmental and social management plans to be applied throughout the duration of a project to identify specific risks and deal with them effectively. Proper ESIA regulations should reveal land related human rights abuses that indicate potential for conflict.

Although Myanmar lacks legislation on ESIAs, Myanmar Wanbao conducted and published its own on 25 June 2014. According to the company’s website, the Letpadaung project “will play as a role model in environmental conservation sector of the Union of Myanmar”.

Myanmar Wanbao’s ESIA outlines its commitment to local laws as well as international standards on law enforcement in securing its operations. The company has acknowledged the concerns associated with project security in weak governance zones. Wanbao has repeatedly claimed that it has gone beyond its legal requirements. Despite the continued allegations of human rights abuse at the Letpadaung mine, Wanbao is yet to demonstrate that it has conducted due diligence and undertaken the remedial measures outlined in its ESIA. This demonstrates the importance of a regulatory system in which the government of Myanmar monitors the implementation of ESIAs to ensure that these are meaningful commitments and not just exercises in public relations.

LAND RELATED RIGHTS ABUSES AND INCREASED VIOLENCE AND CONFLICT

Myanmar is undergoing rapid economic change fuelled by investment, both foreign and national, with ramifications beyond economic growth. Investment requires access to land. The government wishes to provide land for investors. The problem is that many people in Myanmar do not have formal land tenure, rely on customary land use and dispute resolution, or have had their land confiscated without due process. Much of the land sought after by investors is located in conflict zones characterized by ethnic tension. Land confiscation and forced evictions have resulted in a wide range of human rights violations. Where this takes place in conflict zones, violence has increased.

The Myanmar military has been at war with dozens of ethnic groups for decades, fueled by competition over natural resources and minority demands for more autonomy. In these areas there is a history of discrimination, abuse and impunity against ethnic villagers resulting from anti-insurgency campaigns. This includes gender-based violence against ethnic women, forced labour, and other serious human rights violations. The fighting between the Myanmar military and ethnic armed groups shows how unregulated investment and forced evictions have inflamed the wars.

For example, the Myanmar military and the Kachin Independence Army (KIA) fought in 2011 near the Taping hydropower dam after negotiations over revenue between the KIA and the investor broke down. Likewise, in the northern Shan State the Myanmar Army has secured territory for the construction of dual oil and gas pipelines led by the state-controlled China National Petroleum Corporation. The impact of these development policies and the accompanying military campaigns against Myanmar’s ethnic civilians has been severe. More than 100,000 Kachin, as well as Shan and Ta’ang, have lost their homes and livelihoods since 2011. Thousands have fled into China.

The proposed series of Salween River Dams run through several different ethnic areas of Myanmar where armed groups contest governance. The Salween River dams will displace dozens of villages and thousands of residents. The Hat Gyi dam in Karen State, for example, may displace 30,000 people. The Salween River Dams have increased militarization and tension between the Burmese Army and non-state armed groups. Repeated calls from civil society to halt the dam projects in order not to jeopardize the peace process have been ignored.

For projects like Salween River Dams, the government maintains authority to use its powers of eminent domain on behalf of corporations if it deems such corporate projects to be in the public interest. The 1894 Land Acquisition Act, and the now defunct 1953 Land Nationalization Act do not have provisions adequately protecting communities’ rights to informed participation.

Unregulated investment in cooperation with the Myanmar Military has directly contributed to conflict. Dams, pipelines and mining projects have been used as a wartime tool to encroach on ethnic lands and dominate local populations. Investment should be delayed in Myanmar’s war zones until durable peace agreements are established.

LAND LAW REFORM

Myanmar has attempted to attract foreign investment by making land available. But without proper environmental and land laws, as well as an effective judiciary to enforce these laws and provide appropriate judicial remedies, these development projects can violate human rights and increase conflict.

Law reform requires two crucial components. First, it must prevent violations before they occur. This includes creating the obligation to undertaken environmental and social impact assessments, particularly human rights impact assessments, and to uphold the rights to informed participation of affected communities. Myanmar must also develop land law that recognizes customary land tenure.

Second, the legal regime must ensure there are robust procedures to ensure justice and effective remedies for those harmed by development projects by strengthening the ability of courts and administrative bodies to hear such cases. Courts or tribunals must provide justice for the victims of forced evictions and other land related human rights abuses before they escalate and contribute to conflict.

Myanmar is currently drafting a National Land Use Policy in conjunction with civil society consultation. There remain uncertainties over how the policy will affect the drafting of a new land law. Ideally, the NLUP will be an umbrella policy under which all laws, rules and procedures conform to the NLUP. While the development of an NLUP itself is a welcome commitment, clearer terms for land laws—and land related rights issues—are required. Legislative reform will be costly and will require restructuring a national network of committees and institutions. Much depends on how this policy informs the drafting of a new law.

Domestic environmental legislation must protect the environment and human rights through ESIAs, address forced evictions and resettlement, and require public consultations with potentially affected communities. Investment permits should be approved only after such strategic assessments are undertaken and the results are publicly and transparently disclosed.

Strengthening the rule of law to prevent land related human rights abuses requires an independent judiciary. Myanmar needs judges and lawyers who are able to operate independently and impartially to provide proper jurisprudence and, importantly, change the public’s poor perception of the system. This requires a systematic and concerted effort from the entire government and in particular from the powerful executive and legislative branches of the administration. It will also require the allocation of significant resources towards training and capacity building for present and future judges and lawyers.

Myanmar’s inadequate land regulatory system and lack of an effective, independent judiciary indicate that future land related human rights abuses and further conflict are likely. Reform of the legal system is underway and the role of civil society will be crucial in determining whether future law protects land tenure and avoids further human rights violations. The reform of the Judiciary is a long-term project. In order for it to provide access to justice for land related human rights violations it will need to assert independence and develop adequate institutional resources. This regulatory void provides an uncertain environment into which investment now flows, bringing economic development but also human rights violations. This situation may lead to further conflict, especially in ethnic areas where control of resources underpins conflict.

The ICJ conducted a two-day workshop on “Business and Human Rights” in Kyauk Phyu, Rakhine State on 30-31 May. The event was attended by 40 participants representing civil society organizations in Sittwe, Kyauk Phyu, Ann and Ponna Kyaunn. 

It also included members from the township and district courts, township police force and members of parliament, focused on investment in Rakhine state in the absence of credible and transparent mechanisms to prevent human rights abuses.

The workshop occurred against the backdrop of myriad longstanding human rights issues in Rakhine State, including the humanitarian crisis confronting the state’s Rohingya population.

The State has also witnessed ongoing government repression of the State’s ethnic Rakhine population in response to demands for autonomy and their opposition to unregulated development of the State’s ample natural resources, including extensive gas deposits, at the expense of their livelihoods and rights.

The development of gas fields in the State has been fraught with human rights violations, including of forced labour and forced eviction of thousands of farmers from their lands.

As discussed during the workshop, since Myanmar’s relative opening up, the government has continued to invite and approve of foreign investors to develop resource extraction projects in Rakhine State, while locals resist the potential harmful effects of such projects on their livelihoods, properties and environment.

In 2013, hundreds of villagers protested against the adverse impacts of the Shwe gas pipeline construction – a large scale natural gas project developed by Daewoo International of South Korea in a joint venture with Myanmar Oil and Gas Enterprise.

Daewoo has once again ventured into Rakhine State, proposing a coal power plant in Kyaukphyu township, that could have adverse effects on the economic and environmental landscapes in local communities.

During ICJ’s previous trips to Sittwe and Kyaukphyu, local civil society activists had asked for information on responsible investment and national and international standards relating to displacement, land confiscations, and environmental and social impact assessments.

In the first day of the workshop, U Kyaw Min San, ICJ’S National Legal Adviser, led the discussion on fundamental citizen rights guaranteed in Myanmar legislation as well as an analysis of the land laws in Myanmar.

Daniel Aguirre, ICJ’s International Legal Adviser, gave an overview of international human rights law and the role of States and business corporations in protecting and respecting economic, social and cultural rights.

Vani Sathisan, ICJ’s International Legal Adviser, provided a legal analysis of Myanmar’s law on Special Economic Zones (SEZ), highlighting how the law fails to guarantee the protection of human rights and the environment while providing tax reliefs and exemptions, as well as land leases, to win over investors and developers.

On the second day, Daw Tin Tin Wai, Private Sector Policy Officer from Oxfam GB and a Campaign Officer from EarthRights International shared their experiences from Dawei SEZ and Thilawa SEZ, respectively.

They shared that lack of consultations with local communities and large-scale land confiscations through intimidation and threats occurring in the two SEZs reflected flaws in the government and judiciary to protect human rights and provide for access to remedy.

The workshop included a group discussion among the participants focusing on the role of local and international non-governmental organizations in Kyauk Phyu, Ponna Kyunn and Sittwe, the current situation of Kyauk Phyu SEZ and Ponna Kyunn industry zone and land issues related to such development projects.

Hayman Oo, ICJ’s Legal Researcher, facilitated the discussion, which served to highlight the specific themes around which the CSOs were organizing their advocacy and research.

At the closing dinner, U Kyaw Min San extended the ICJ’s appreciation to all the local CSOs for their participation and active engagement, and reiterated the ICJ’s support to work with community-driven organizations to work on recommendations to the government and businesses on transparency, prior consent and consultation, and compensations, and to push for a more rights-compliant approach to investments in Kyaukphyu.

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http://www.icj.org/myanmar-icj-held-business-and-human-rights-workshop-in-rakhine-state/

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