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The local constitutional conundrum wrought by the cocktail of the unforeseen results of the recent general election; the nominations to the Senate of at least three individuals ineligible under existing law; and the charmed creation of an Opposition leader from among the ranks of the governing administration continued apace last week. It was all to be added to by the news that three interested parties had filed a petition against Barbados before the Inter-American Commission on Human Rights challenging the legitimacy of the statutory provisions in our Sexual Offences Act that criminalize buggery between consenting partners and serious indecency. The latter is an offence that, on a literal interpretation, covers almost any imaginable sex act-

An act of “serious indecency” is an act, whether natural or unnatural by a person involving the use of the genital organs for the purpose of arousing or gratifying sexual desire.

Needless to say, it is rarely prosecuted when it occurs between consenting adults.

The incongruity of the appointment of His Grace the Bishop Joseph Atherley MP as the Leader of the Opposition, given the substance of his recent electoral campaign, was brought home forcibly this week with the disparate views expressed by the Opposition leader and his nominated Senator during debate in the Lower and Upper Chambers with regard to the provisions of the Constitution (Amendment) Act 2018.

The appointment of a formal Opposition leader so as to give the façade of bipartisan parliamentary consideration of legislation is not a credible substitute for an Opposition party enabled by trained research assistance and other administrative support. However, in light of the express text of the Constitution, the Governor General had little option but to appoint Bishop Atherley, once he had declared his intention of not supporting the Government and once that assertion accorded with her judgment According to section 74 (2)-

Whenever the Governor-General has occasion to appoint a Leader of the Opposition he shall appoint the member of the House of Assembly who, in his judgment, is best able to command the support of a majority of those members who do not support the Government…

As for the constitutional amendments themselves, two were of course necessary to enable the governing administration to have in Parliament those whom, in its considered opinion, are best able to articulate its policies in the Upper House. Few would begrudge the new administration this right, especially given its overwhelming support by the electorate. And I am not among those who believe that the Constitution is unalterable. After all, even the document itself creates the means for its own alteration.

However, one would reasonably expect in the interests of civic engagement and trust that any fundamental changes would be made subject to public discourse after the case for their revision has been clearly put. I do not imagine that the amendment relating to the residency requirement of a senator would qualify as a fundamental alteration at the present day, although the level of entrenchment of that particular provision might legitimately raise an eyebrow as to the framers’ rationale.

Less so, however, is the amendment relating to the proscribed dual nationality of the parliamentarian or, as it is so euphemistically put in the Constitution, one who is “by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign Power or State…”

A similar provision is located within most of the regional Constitutions. For example, section 48(1) of the Trinidad & Tobago Constitution 1976 states-

No person shall be qualified to be elected as a member of the House of Representatives who-

  • is a citizen of a country other than Trinidad and Tobago having become such a citizen voluntarily, or is under a declaration of allegiance to such a country…”

and section 40 (2)(a) of the Jamaica Constitution provides-

“No person shall be qualified to be appointed as a Senator or elected as a member of the House of Representatives who- 

is, by virtue of his own act, under any acknowledgment of allegiance, obedience or adherence to a foreign Power or State…

The reason for this disqualification seems to be a secular version of the axiom that “no man can serve two masters”, but the absence of popular discourse on the issue before its passage robbed the nation of its being able to weigh in intelligently on the matter. I had commented a few days ago in an opinion  piece entitled An unforeseen event that the Constitutional draftsman had made a hash of our section 75 which might have been intended to cater to the circumstance where there was no apparent Leader of the Opposition in the Lower Chamber but, which had, by its less than lucid provision, created some doubt in that regard. I had suggested as an alternative the clearer Trinidad & Tobago provision-

Where the office of Leader of the Opposition is vacant, whether because there is no member of the House of Representatives so qualified for appointment or because no one qualified for appointment is willing to be appointed, or because the Leader of the Opposition has resigned his office or for any other reason, any provision in this Constitution requiring consultation with the Leader of the Opposition shall, in so far as it requires such consultation, be of no effect. [Emphasis mine]

I note however, from the text of the Bill that we have chosen to retain the identical text from the original section 75, while nevertheless mandating the Governor General to “after consultation with the political parties which do not support the Government, act in his discretion in the exercise of any function in respect of which it is provided in the Constitution that the Governor-General shall act in accordance with the advice of the Leader of the Opposition…”

This new provision appears now to require the Governor General to consult in a circumstance where the former provision empowered him to act in his sole discretion. I trust that it would have been noted by officialdom that there is a constitutional ouster clause applicable to any such  arrangement. Section 32(5) provides –

Where the Governor-General is directed to exercise any function in accordance with the recommendation or advice of, or with the concurrence of, or after consultation with, any person or authority, the question whether he has so exercised that function shall not be enquired into in any court.

Finally, I observe that the debate in the Senate yesterday proceeded in the absence of at least one of the nominated members. The government, doubtless out of an abundance of caution, had chosen to appoint two Senators pro tempore. The legislation was accordingly passed and I might be “caviling on the ninth part of a hair” but the question does beg asking, “Was the Senate legally constituted in those circumstances?” And what is to be made of the provision in section 36 (1)?

The Senate shall consist of twenty-one persons who, being qualified for appointment as Senators in accordance with the provisions of this Constitution, have been so appointed in accordance with the provisions of this section.

To be continued…

 

 

 


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99 responses to “The Jeff Cumberbatch Column – A Barbadian Miscellany I”

  1. de pedantic Dribbler Avatar
    de pedantic Dribbler

    @Dean Jeff, two questions this morn.

    One. This you surely have been asked many times before but only now sitting in your Sunday teaching sessions has the issue jumped out at me. So do induldge.

    How is it that the T&T constitution shows such marked difference (in the areas discussed in your columns at least) from the Bajan and in this case that of Jamaica?

    These three islands all gained independence within four years of each other after the failed Federartion attempts and one can assume that the constitutions were similarly prepared under the same Colonial office secretariat.

    Were the Dr Williams trinis just more diligent on the clarity of their language or is their constitution a more ‘recent updated document?

    You have also cited the former British Honduras in your essays and they too (and Guyana of course) became an independent Belize around same time as these others. How does that doc compare at these points for language similarity/difference?

    And two. Are you indeed caviling on the ninth hair (or dropping your shots way short on a par 5 ninth hole 😁) or is this a significant issue.?

    Last week you very clearly pointed out the distinction with ‘majority of all senators of the chamber’ and ‘a majority of all those present’ and I understood you to then to be drawing a clear dividing line…no splitting.

    Is it that the Senate is using the ‘majority of all those present’ as their principle and are you advising that this is legally unsound or just a hair splitting non-issue? Or have I misinterpreted this line of reasoning?

  2. Jeff Cumberbatch Avatar
    Jeff Cumberbatch

    How is it that the T&T constitution shows such marked difference (in the areas discussed in your columns at least) from the Bajan and in this case that of Jamaica?

    These three islands all gained independence within four years of each other after the failed Federartion attempts and one can assume that the constitutions were similarly prepared under the same Colonial office secretariat.
    Were the Dr Williams trinis just more diligent on the clarity of their language or is their constitution a more ‘recent updated document?

    @ DPD, The Trini Constitution has always been different in form from those of Barbados and Jamaica. I have been informed that the Trinidadian is from an Indian draft, while ours and Jamaica;s seem to be minted straight out of Whitehall. Trinidad revamped its Constitution in 1976 on becoming a republic, but the changes were not radical.

  3. Jeff Cumberbatch Avatar
    Jeff Cumberbatch

    Are you indeed caviling on the ninth hair (or dropping your shots way short on a par 5 ninth hole 😁) or is this a significant issue.?

    Last week you very clearly pointed out the distinction with ‘majority of all senators of the chamber’ and ‘a majority of all those present’ and I understood you to then to be drawing a clear dividing line…no splitting.

    Is it that the Senate is using the ‘majority of all those present’ as their principle and are you advising that this is legally unsound or just a hair splitting non-issue? Or have I misinterpreted this line of reasoning?

    @ DPD, You have not misinterpreted. The thing with legal argument is that an opinion, no matter how learned, remains just that, an opinion, until the court, preferably the apical court, has issued a ruling on it. While I do believe that a constitutionally legal Cabinet should have 21 members to be so called, this is not a point worth pursuing at a higher and more expensive level. In any case, here exists a “presumption of constitutionality” that might override any objections as to form.
    And while a quorum of the Senate is eight members only, that should apply only in a situation where there is already a properly constituted Senate, in my view.

    Here is the Belizean provision for the circumstance when there is no Leader of the Opposition-

    during any period in which there is a vacancy in the office of Leader of the Opposition, the provisions of this Constitution containing the requirement that action shall be taken in accordance with the advice of, or after consultation with, or with the concurrence of, the Leader of the Opposition shall have effect as if there were no such requirement.

    And the Senate-
    Subject to subsection (2), the Senate shall consist of twelve members (in this Constitution referred to as “Senators”) who shall be appointed by the Governor-General in accordance with the provisions of this section

    As to the residency requirement-
    …a person shall be qualified to be appointed as a Senator if, and shall not be qualified to be so appointed unless, he-
    a. is a citizen of Belize of the age of eighteen years or upwards; and
    b. has resided in Belize for a period of at least one year immediately before
    the date of his appointment.


  4. The Church in T&T protesting against the recent court decision to remove the buggery law.

    https://www.facebook.com/ttnewsday/posts/775915242601082

  5. de pedantic Dribbler Avatar
    de pedantic Dribbler

    Thank you @Jeff.

    Interesting numbers there re Belize Senate.

    I recall quite a lengthy trip of over an hour (not due to traffic) from Belize City to the capital Belmophan so physically that nation dwarfs Bdos but does not have a significantly larger population. Thus it seems quite ‘amusing’ that we need 21 senators and they make do with 12. Ah well, what’s a few more state sponsored salaries to talk and talk!


  6. My Canadian influenced opinion is that the Barbados ” Sexual Offences Act ” needs to change.

    “There is No Place for the State in the Bedrooms of the Nation” Parliament & Policies. Quote from then-Justice Minister Pierre Trudeau when he introduced modernizing reforms to the Criminal Code1 in 1967 that decriminalized homosexual acts.


  7. @Hants

    The issue of removing the buggery laws from the books have gone passed the government. They will have to remove or see the matter taken to the courts playing out in Trinidad. I see some making this a political issue because Mia is now prime minister.


  8. Jeff wrote “An act of “serious indecency” is an act, whether natural or unnatural by a person involving the use of the genital organs for the purpose of arousing or gratifying sexual desire.”

    I guess they forgot to add ” in a public place “. That would be reasonable.


  9. @ David the LGBT community will be emboldened by having a female Prime Minister.

  10. pieceuhderockyeahright Avatar
    pieceuhderockyeahright

    @ The Luminary Jeff Cumberbatch

    A good morrow to you.

    De ole man would also beg your indulgence on a part of your text that I don’t understand (though in truth de ole man don’t understand all of it but just trying to appear intelligent)

    You said and I quote “…The appointment of a formal Opposition leader so as to give the façade of bipartisan parliamentary consideration of legislation is not a credible substitute for an Opposition party enabled by trained research assistance and other administrative support…”

    Now while I will avoid commenting on the uncharacteristic timbre of the word façade Heheheheh I would ask you to explain to me what the segment about “an opposition enabled by trained research assistance and other administrative support…”

    I am not clear on that.

    Are you saying that there were other options available to enable “The Opposition” that were not taken?

    Do forgive my palpable influence which reflects a Brumley Stand Pipe schooling.

    [[Need the ole man share with you that the only time de ole man been to de University in Cave Hill was when as a youth I was did checking a girl up by Montgomery School and 10 fellers who din like no external competition from an outsider run de ole man all down Cave Hill through the back where dere was dounks trees and ting. I put dis in square brackets causing i ent want nobody to know how de ole man run like badword to avoid getting some warm liks]]

  11. pieceuhderockyeahright Avatar
    pieceuhderockyeahright

    @ the Honourable Blogmaster your assistance please with an item of little impact


  12. Who was the senator seated next to Caswell?


  13. @Jeff
    Earlier you said you hadn’t read Professor Welch’s opinion piece, perhaps you’ve had the opportunity to see it since then if not here it is:
    http://epaper.barbadostoday.bb/html5/reader/production/default.aspx?pubname=&edid=504ba608-8948-4b6a-bcbc-b53890d2182d


  14. That s/b pg 16

  15. Jeff Cumberbatch Avatar
    Jeff Cumberbatch

    You said and I quote “…The appointment of a formal Opposition leader so as to give the façade of bipartisan parliamentary consideration of legislation is not a credible substitute for an Opposition party enabled by trained research assistance and other administrative support…”

    Heheheheh I would ask you to explain to me what the segment about “an opposition enabled by trained research assistance and other administrative support…”

    I am not clear on that.

    Are you saying that there were other options available to enable “The Opposition” that were not taken?

    @Piece ,No, I am simply comparing the political effectiveness of a one-man Opposition as against that of an organized party with backroom research skills available. Unfortunately the Barbadian electorate preferred it that way.

    Once the GG was convinced that the Bishop really did not support the Government, she had no choice…although hits selection does violence to the text of the Constitution as Pedro Welch argued to me…


  16. Thanks Sarge, just downloaded it.

    I knew I was not mad!!

  17. Jeff Cumberbatch Avatar
    Jeff Cumberbatch

    Earlier you said you hadn’t read Professor Welch’s opinion piece, perhaps you’ve had the opportunity to see it since then if not here it is:

    @ Sarge, Thank you kindly!


  18. @Jeff

    Of practical concern is if the selection by the GG can be challenged in Court. What does it portend!


  19. Can the GG revoke the appointment of the leader of the opposition?

    On what grounds can she revoke the appointment of the PM?


  20. The Constitution assumes that a plurality of association is required for an aspirant to the office of Leader of the Opposition to be recognized as having the support that qualifies him/her to be so appointed.

    Under this assumption, it seems clear that a single person cannot, by definition, be considered to have majority
    support or “group” support in the absence of a plurality of such support.

    In short, a single person cannot constitute a majority in the absence of like-minded others.

    Moreover, merely crossing the floor while remaining a member of the governing party would not, and could not, in itself, so qualify such a single person in the absence of the required plurality.

    We may also note that most dictionaries define a majority as the greater number or part, thus requiring a plurality.
    +++++++++++++++++++++++

    That’s what I got from Pedro Welch.

  21. Jeff Cumberbatch Avatar
    Jeff Cumberbatch

    Of practical concern is if the selection by the GG can be challenged in Court. What does it portend!

    Unless it can be established that the GG acted ultra vires, the matter is settled since she alone had to be satisfied of the issue of non-support of the Government


  22. Thanks Jeff, this is the point some in the forum need to treat with.


  23. Like you and was it Senator Monique Taitt during the debate was a little disappointed the amendment to address the LoO issue was not circulated for wider debate in light of the GG and Atherley working to resolve the quandary caused by the 30-0 victory.

  24. Jeff Cumberbatch Avatar
    Jeff Cumberbatch

    The Constitution assumes that a plurality of association is required for an aspirant to the office of Leader of the Opposition to be recognized as having the support that qualifies him/her to be so appointed.

    Under this assumption, it seems clear that a single person cannot, by definition, be considered to have majority
    support or “group” support in the absence of a plurality of such support.

    In short, a single person cannot constitute a majority in the absence of like-minded others.

    Moreover, merely crossing the floor while remaining a member of the governing party would not, and could not, in itself, so qualify such a single person in the absence of the required plurality.

    We may also note that most dictionaries define a majority as the greater number or part, thus requiring a plurality.

    @ John, it is clear that the Constitution does not provide for what occurred last month. However, in my view, the doctrine of necessity would step in to hold that there ought to be an Opposition in a democracy and thus permit the current scenario, Pedro’s point would also hold that even if Freundel Stuart alone had won his seat, he should not have been appointed Leader of the Opposition. I respect the point of English language, but I am not so sure I agree fully

  25. Jeff Cumberbatch Avatar
    Jeff Cumberbatch

    On what grounds can she revoke the appointment of the PM?

    If the House of Assembly by a resolution which has received the affirmative vote of a majority of all the members thereof resolves that the appointment of the Prime Minister ought to be revoked and the Prime Minister does not within three days of the passing of the resolution either resign or advise the Governor-General to dissolve Parliament, the Governor-General shall, by instrument under the Public Seal, revoke the appointment of the Prime Minister. -section 66(2)


  26. Is Monique Taitt a member of the DLP? Is Kevin Boyce a member of the DLP ?

    Is it possible that the GG chose them as defacto “opposition senators” ?


  27. @Hants

    Do not know if they are DLPites except to say that Monique Taitt was Chairperson of the NCF under the last DLP government, does this make her a DLPite? Because Kevin’d father was a former minister in the last government does this make him a DLPite?


  28. @ David,

    that makes them DLPites in my opinion based on historical evidence.lol


  29. @Hants

    By your logic Jeff is a DLPites given the hats he wears not so?


  30. Jeff

    Is what Monique Taitt saying in today’s Sunday Sun true? That is,the constituition does not allow for Temporary senators?

  31. pieceuhderockyeahright Avatar
    pieceuhderockyeahright

    @ Brother Hants

    As to you question as to whether Senator Monique Taitt is a DLP or I’d any person is a DLP de ole man would advise as follows.

    To ascertain if anyone, who is not part of the vacillating oligarch community which by its very being is apolitical euphemism for they butter the corridors, IS EITHER BLP OR DLP, check the cumulative amount paid to them, or their company/ies, or their proxies, or their wife’s catering company, for their services during the tenure of a specific party and you will see what party they are.


  32. @David
    I don’t think that amendment required one to be pro/anti both major political Parties to argue cogently about the amendment. If one is part of today’s mobile generation they would say “there but for the grace of God go I” and argue strenuously for its passage. I did agree with Senator Taitt’s point about withdrawing the section dealing with the LOO since its immediacy was not an issue but that was not given further attention. One gets the impression that the Gov’t does not want to come back to this issue anytime soon.


  33. @Sargeant

    We agree!

    One cannot cherry-pick issues to be transparent. There is a process to change the Constitution but at the same time we have to consider it is an important body of laws directing how we govern and public feedback should be garnered to ensure all are onside.

  34. pieceuhderockyeahright Avatar
    pieceuhderockyeahright

    @ T Inniss

    I ent no lawyer nor no politician nor no public relations officer but any idiot would not have used the words “temporary senators” in any public broadcast.

    The same way Atherley would have been asked, IN PRIVATE, to go the the batting plate as the sacrificial lamb, so too should such a circumventory arrangement have been made with Bradshaw and John Williams IN PRIVATE

    EVEN IF PREDATED LETTERS OF RESIGNATION WERE SECURED FROM THE LATTER FELLOW AT LEAST, cause he purportedly ent known to keep he word pun a pang.

    Steupseee it look like De ole man and he grandson going have to offer me services to Madamoiselle Prime Minister Mottley to help she through this thing doah.

    I mean looka all dese ingrunt mistakes and glaring omissions

    Whu effing dere was a real real opposition or a valid Third Paty Movement dese would be the issues dat dem should be prosecuting ALL LIKE NOW!

    [[Anybody heah know Atherley number?

    De ole man would like wunna to call he and axe fuh a pick to help dem run dem opposition public relations campaign.

    I had was to put dat down in square brackets causing i ent want dem to know dat i begging MAM for a Piece, and Hartley Henry fuh a Piece and Kaymar wid she sexy self for a Piece and nor Atherley for a Piece.

    I is a real pieceuh_olewhore fuh trufe

    Next ting you know I gine be begging N*** fuh a piece]]

    Heheheheh


  35. @ David,

    By my logic G G does not mean Governor General. Ask pieceuhderockyeahright eff yuh doan believe me. lol

    Please do not use my logic to apply to Jeff and the other highly educated and accomplished maguffees on BU.

    @ pieceuhderockyeahright I hope you got good headphones to listen not to the G G but to G G. lol

  36. Jeff Cumberbatch Avatar
    Jeff Cumberbatch

    *Jeff

    Is what Monique Taitt saying in today’s Sunday Sun true? That is,the constituition does not allow for Temporary senators?

    @ Mr Inniss, The Constitution makes no express provision for them, but that is not the sane as proscribing them. The two gentlemen are full-fledged senators. That they will eventually resign to make way for others does not make them any less so!


  37. Many need to read the constitution and see for themselves that the only person the GG has to answer to for any decision she makes regarding the island…is buckingham palace and no one else…her power over all things Barbados is total.


  38. Jeff

    @ John, it is clear that the Constitution does not provide for what occurred last month. However, in my view, the doctrine of necessity would step in to hold that there ought to be an Opposition in a democracy and thus permit the current scenario, Pedro’s point would also hold that even if Freundel Stuart alone had won his seat, he should not have been appointed Leader of the Opposition. I respect the point of English language, but I am not so sure I agree fully

    ++++++++++++++++++++

    I would put it differently.

    The Constitution provides four mechanisms which prevent a Parliament being formed in a clean sweep election.

    First – There shall be a leader of the opposition

    Second – He shall lead a group (plurality)

    Third – He shall nominate 2 senators

    Fourth – The senate Shall be constituted by 21 members

    The Constitution therefore does provide for what happened last month.

    It makes it a nullity.

    What happens in the case of a null election?

    Do we need a constitution to tell us?


  39. And as Jeff will confirm…being head of the local arm of the UKs privy council…the GG cannot be questioned by nor does any of her decisions fall within the boundaries of any local court..

    the local privy council which she has to call to session, also operates outside the boundaries of the local courts.


  40. Tomorrow there is supposed to be a mini – budget given by Auntie Mia – 2 hours!!.

    After her delivery, the leader of the opposition will respond.

    Then 28 government members will speak, each for 30 minutes or however long – 14 hours.

    … followed by Auntie Mia to close – 1 hour.

    I can’t tek listening to no 29 Bees and Auntie Mia blow a lot of hot air in an unconstitutional house of assembly for 17 hours.

    If I felt like going to a pantomime, I would go to the one they normally have at St. Winifred’s before I would listen to this idiocy.

    At least it would be over in a couple of hours.


  41. Jeff, we are aware that investors accept the risk of financial loss when making an investment. In the specific case of Government debt, is there an obligation on the part of the Government to use best efforts to prevent investors incurring a loss due to default? Is there a case of gross negligence to be made against a Government that fails to use all remedies to collect its revenues if the failure results in default and a loss to its creditors?


  42. The problem is lawyers and legal precedents.

    The precedent (past) is Keith Mitchell.

    To a trained lawyer since there is a precedent, then 30-0 is a valid result.

    Except the trained lawyers don’t seem to understand who and what Keith Mitchell is!!!

    He is 100 times smarter than any of them and clearly, the supreme con artist.

    .. and then there is Grenada’s sorry post independence history which lends itself to the creation of a Keith Mitchell.

    Remove Grenada and Mitchell from the equation and build a case on what is written and exists here in Barbados.


  43. Jeff, we are aware that investors accept the risk of financial loss when making an investment. In the specific case of Government debt, is there an obligation on the part of the Government to use best efforts to prevent investors incurring a loss due to default? Is there a case of gross negligence to be made against a Government that fails to use all remedies to collect its revenues if the failure results in default and a loss to its creditors?

    +++++++

    Add the unconstitutionality of the House of Assembly and perhaps its “members” are personally liable!!


  44. We have not heard peep out of MoneyB in all of this, probably waiting for the dust to settle.

  45. Bernard Codrington Avatar
    Bernard Codrington

    Government debentures,treasury notes and treasury bills are considered low risk/ safe investments. The tax payers are supposed to repay. There should be no loss of principal. Of course an irresponsible government could legislate a hair cut…..a forced reduction in the face value of these investment instruments.


  46. A company indemnifies its directors once they act in good faith.

    How are members of the House of Assembly indemnified?


  47. @Bernard

    You could have added that the previous government and Government ‘coerced’ ordinary Barbadians to buy bonds for the sake of country. To administer a haircut as you hinted could be deemed cruel and inhumane.

  48. Bernard Codrington Avatar
    Bernard Codrington

    These items are generally rolled over at maturity since they are bought for the income generated ; id est above average interest yield.


  49. “Bernard Codrington June 10, 2018 2:29 PM /… Of course an irresponsible government could legislate a hair cut…..a forced reduction in the face value of these investment instruments.”

    But is there a legal basis to challenge such action if a Government has been grossly negligent in collecting its revenues, as the negligence would reward its debtors, especially where the debtors are seen to be able to pay their debts to the Government, and penalise its creditors.


  50. David
    Kevin Boyce sat on the BIDC Board. I doubt he’ll be a DLP “senator”, but we’ll have to wait and see.

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