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As the ‘Safe Harbour’ Deadline Looms!

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DONALD TRUMP’S LOSING BATTLE . . .

by Selvam Canagaratna

“There is something so showy about desperation, it takes hard wits to see it’s a grandiose form of funk.”

– Elizabeth Bowen, The Death of the Heart (1938).

“President Donald Trump’s effort to snatch a second term through a series of state and federal court challenges has been flaming out for weeks. Now, the calendar has all but extinguished it,” wrote Josh Gerstein and Kyle Cheney in their piece in Politico magazine.

Dec. 8 is the so-called ‘safe harbour’ date for the presidential election, a milestone established in federal law for states to conclude any disputes over the results. Trump’s failure to gain traction in litigation, with his lawyers and allies failing to block crucial states from declaring Joe Biden the winner, means the ‘safe harbour’ deadline stands as another potentially insurmountable reason for the courts to decline to intervene.

Trump’s legal team publicly says the ‘safe harbour’ deadline is meaningless and they’ll simply disregard it. Set by a 140-year-old statute, the date isn’t enshrined in the Constitution, they say. But the campaign’s legal filings tell another story, as Trump’s lawyers pressed courts for urgent action ahead of the deadline midnight on Tuesday and warned of irreparable consequences if they don’t.

The last time a presidential election was resolved at the Supreme Court, the ‘safe harbour’ deadline proved pivotal. And several legal actions seem to be hurtling toward a potential resolution on Tuesday — including a Pennsylvania dispute where Justice Samuel Alito initially asked for responses by Wednesday but decided to expedite further to Tuesday amid speculation about the ‘safe harbour’ deadline.

During the 2000 dispute between George W. Bush and Al Gore, as the court’s majority essentially awarded the presidency to Bush, the justices cited the looming deadline as a reason Florida could not initiate a new, manual recount.

“The majority treated the ‘safe harbour’ very seriously,” Ohio State University law professor Ned Foley said. “That’s why there was no remand to give Florida another chance at recounting.”

Indeed, the very timing of the high court’s hasty resolution of the Bush v. Gore case seemed driven by the ‘safe-harbour’ date. The justices heard arguments the day before it and decided on the very day, which was established in an 1887 statute intended to prevent uncertainty about the winner of the presidential election.

“In light of the inevitable legal challenges and ensuing appeals to the Supreme Court of Florida and petitions for certiorari to this Court, the entire recounting process could not possibly be completed by that date,” the high court wrote in that closed the books on the 2000 election.

As Trump attempts to bludgeon his way to a second term, judges and lawyers for both sides have also treated the ‘safe-harbour’ deadline as a cause for urgency. That’s in part because states whose results haven’t been certified by Tuesday risk having Congress disregard their electoral votes.

Trump keeps vowing that he intends to take his legal battle to the Supreme Court, but with the key date arriving Tuesday he has yet to present to the justices a series of cases he insists could swing enough electoral votes to hand him the election. At the moment, though, the justices have before them only a couple of election challenges stemming from Pennsylvania, with mere suggestions that cases from other states will make their way to the high court.

In the meantime, Trump’s allies have increasingly acknowledged their losing legal hand.

Trump has largely turned his attention away from the legal process and toward a political push to pressure Republican allies in state houses and Congress to subvert Biden’s victory. The shift to this similarly quixotic effort arrives amid an increasingly dire set of circumstances for Trump.

His top legal surrogate, Rudy Giuliani, has been hospitalized with Covid-19. Judges appointed by presidents of both parties have skewered Trump’s legal rationale, and state legislative leaders, including Republicans, have disavowed Trump’s attempts to overturn the election results. And many of Trump’s own aides have begun looking past his presidency and toward a post-Trump Washington.

These developments have all underscored a reality that seems to be sinking in inside Trump’s orbit: It’s over.

“The people have spoken,” Judge Linda Parker, a federal jurist from the Eastern District of Michigan, wrote in a that stung Trump allies for failing at multiple levels to present a legitimate case for overturning the election results.

In Monday’s opinion, Parker mentioned the looming ‘safe-harbour’ deadline and said she was unwilling to overturn a certification already signed back on Nov. 23, two days before the suit she ruled on was filed.

“The Governor has sent the slate of Presidential Electors to the Archivist of the United States to confirm the votes for the successful candidate,” wrote Parker, an appointee of President Barack Obama. “This case represents well the phrase: ‘This ship has sailed.’”

And a federal judge in Georgia, George W. Bush appointee Timothy Batten, threw out a lawsuit brought by GOP electors — represented by Trump ally Sidney Powell — from the bench on Monday, underscoring the flimsiness of the case they brought.

The ‘safe harbour’ deadline is actually more of a legal jumble than it would appear. Legal experts emphasized that it’s far from an expiration date on Trump’s legal challenges, and some are likely to linger, at least until Dec. 14, when the Electoral College is set to cast the formal vote for president.

In Bush v. Gore, the justices seemed to acknowledge that the date wasn’t a drop-dead deadline, but they said the will of the Florida Legislature to avail the state of the ‘safe harbour’ provision could not be frustrated by conflicting orders from the state’s courts.

Some still clinging to what they see as glimmers of hope for Trump’s legal quest note that the Tuesday ‘safe-harbour’ deadline is not dictated directly by the Constitution, but is set by , the Electoral Count Act.

“The ONLY Electoral College deadline specifically required by the Constitution is noon on January 20, at which point Trump’s first term officially ends,” , director of the Amistad Project, which has led some of the pro-Trump legal actions in court.

Others say the century-old law, prompted by the 1876 election standoff between Rutherford B. Hayes and Samuel Tilden, is hopelessly murky.

“What we know for sure: these guys took a decade to write a law that nobody can read to fix a problem that it didn’t really fix,” former Justice Department spokesperson Sarah Isgur .

The law says that Congress will treat as “conclusive” any certification of electors resolved under the state’s established processes by the ‘safe-harbour’ date. However, while Congress is supposed to follow the statute, there may be no way to force it to.

“It’s not self-executing,” Foley said. “I can’t envision a court trying to force Congress to obey the command that seems to be in this [law.] It is purporting to bind Congress, but when it comes down to it I think Congress is the only entity that can enforce this. It depends on the good faith of Congress.”

But with court fights looking increasingly grim for Trump, that seems to be one scenario the President and his allies are at least considering embracing.

Last week, Trump praised Rep. Mo Brooks (R-Ala.) who indicated he intends to challenge Biden’s presidential electors when they are counted by Congress on Jan. 6. Several other GOP House members have lined up to do the same, though even that effort won’t get out of the starting gate without a Senate sponsor. And even with one, the math is virtually impossible for Trump.

A lawyer working with Powell in the Michigan case rebuffed by the judge Monday, Gregory Rohl, dismissed the decision as “cut and paste.” He told POLITICO he still expects a high court showdown over the issues in that state and others.

“We always envisioned that SCOTUS would eventually weigh in on the voter fraud issue across the country,” Rohl said. “I am prepared to proceed forward and can assure all voters of our steadfast determination to maintain the integrity of our democratic process no matter what corruption attempts to taint it.”

Giuliani ignored the courtroom defeats Monday, apparently sticking to a Trump campaign line that Powell’s court setbacks are of no consequence to the campaign’s official work. But the Trump campaign’s own legal efforts aren’t doing much better. On Friday suffered setbacks and outright rejections in county, state and federal courts across the country. Trump and his allies have now lost dozens of challenges at nearly every level.

On Monday afternoon, the maestro of Trump’s legal crusade was still at Georgetown University Hospital, according to a person familiar with the situation, who said Giuliani was there as a precautionary measure.

Two people who spoke to Giuliani on Monday said he was fine and making calls. The campaign is still pressing ahead with legal actions even as they run up on deadlines, but it’s unclear when Giuliani will be able to appear in person again or if he will call into upcoming hearings.

Trump said his first call of the day was with Giuliani, and described him as “doing very well” and without a fever.

“He actually called me early this morning, he was the first call I got,” Trump said after a presentation for the Presidential Medal of Freedom to Dan Gable in the Oval Office. “Greatest mayor in the history of New York and what he’s doing now is more important, and he will admit that.”

Describing his own political prognosis, Trump seemed to pair his usual swagger with a touch of realism about the grim legal picture for his campaign: “You know, in politics, I won 2, so I’m 2-and-0. And that’s pretty good, too,” Trump said, before adding: “But we’ll see how that turns out.”

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Most Venerable Kotugoda Dhammavasa Uttareethara Maha Nayaka Thera turns 88

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It was in the year 1803 that there was a renaissance within the Maha Sangha (the Great Community of Buddhist Monks) in Sri Lanka thereby adding a fresh chapter to the history of the Buddha Sasana in Sri Lanka. This was when the Most Venerable Welitara Sri Gnanawimala Thera, the Great Prelate received the Upasampada or the Higher Ordination in Burma, returned to Sri Lanka and established the Sri Lanka Amarapura Nikaya. (The name of this monk is embellished with traditional appellations such as Bodhisattva Gunopetha or being imbued with the qualities of a Bodhisattva or Buddha-Aspirant, and Preacher to King and Emperor.)

Thus the Amarapura Nikaya, which began with this Most Venerable Thera, later spread itself very rapidly down five generations of the Sangha spanning the entire Island. These generations of the Sangha organized themselves into 22 Nikayas. This was with the blessings of each of the Mahanayakas. They also preserved the identity of each such Nikaya.

In Sri Lanka, Amarapura Maha Sangha Sabha was formed in 1952 with the concurrence of 15 of these subsidiary Nikayas. Presidents of the Amarapura Maha Sangha Sabha have been;

1. the Most Venerable Prelate Beruwela Siri Nivasa Thera

2. the Most Venerable Mapalane Pannalankara Maha Nayaka,

3. the Most Venerable Uddammita Dhammarakhita Maha Nayaka,

4. the Most Venerable Balangoda Ananda Maithri Maha Nayaka

5. the Most Venerable Madihe Pannaseeha Maha Nayaka.

In the year 1962 all 22 Sub-Nikayas came together to form a more organized and properly constituted Sri Lanka Amarapura Maha Sangha Sabha. It was the Most Venerable Agga Maha Panditha Balangoda Ananda Maithri Thera who was installed as President and has been succeeded by;

1. the Most Venerable Dhammavansha Thera,

2. the Most Venerable Madihe Pannaseeha,

3. the Most Venerable Ahungalla Wimalanandi,

4. the Most Venerable Kandegedara Sumanavansha,

5. the Most Venerable Boyagama Wimalasiri,

6. the Most Venerable Kotugoda Dhammavasa and

7. the Most Venerable Dodampahala Chandrasiri.

The Most Venerable Chief Prelate Ganthune Assaji Thera is the current chair.

In terms of the Constitution approved in 1992, an Office of Supreme Prelate (Uttareethara Mahanayaka) was created, and the first to hold this office was the Most Venerable Madihe Pannaseeha Mahanayaka Thera who was succeeded by Most Venerable Davuldena Gnaneesara Thera. After his demise the Most Venerable Kotugoda Dhammavasa Thera, who turns eighty-eight today assumed and continues to be the Uttareethara Mahanayaka.

He was born on 26th January 1933 and ordained as a monk with the permission of his parents, on 17th August 1948. He received his Higher Ordination on 10th July 1954 at the Udakkukhepa Seemamalakaya set up on the River named the Kalu Ganga in Kalutara.

He had his training and primary instruction in the Buddha Dhamma from his Venerable Preceptors, later entered the Paramadhamma Chetiya Pirivena for his education. It was at the Maha Pirivena in Maligakanda where he received his Higher Education in three languages, under the shadow and tutelage of the Most Venerable Pandita Baddegama Piyaratana Thera.

With the demise of his preceptor, Dhammavasa Thera became the Prelate of the Dharmapala-arama Viharaya in Mount Lavinia. By this time he had already become very popular by broadcasting and delivering sermons in temples and in private homes, contributing to articles disseminating the Dhamma, and articles on topical subjects through the full-moon day publication entitled “Budusarana”, then to daily newspapers, and to the Vesak Annuals published by M D Gunasena & Co., Dinamina etc.

The Thera was also engaged in social welfare activities of the area by setting up Children’s and Young Persons’ Societies within the Vihara.

With the passage of time and the demise of remarkably eloquent monks such as the Most Venerable Narada Thera, Prelate of the Vajira-aramaya, Heenatiyana Dhammaloka, Kotikawatte Saddhatissa, Pitakotte Somananda, Kalukondayawe Pannasekera and other such classic preachers, Kotugoda Dhammavasa Thera stands out as a prime orator among those who came to the limelight after the days of the erudite monks of yesteryear.

Owing to the ceaseless invitations to deliver sermons extended to our Venerable Thera he travelled to various regions of the Island, yet fulfilling all his duties pertaining to his own Nikaya and to the work of the Sangha Sabha neglecting nothing whatever. With all this he continued to participate in the discharge of the infinite services expected of all erstwhile office bearers of the Sangha Sabha.

Our respected Thera was gradually chosen to hold various posts within the Amarapura Nikaya. Some such are his appointment in 1970 as an ordained member of the Working Committee and to the Post of Honorary Prelate (Maha Nayaka); in 1981 as the Chief Ecclesiastical Sangha Nayaka; and in 1990 as the Deputy Chief (Anunayaka) of the Amarapura Nikaya. At the same time it is because of his quality of being industrious that he was elected the Secretary (Lekhakadhikari).

The Venerable Anunayaka Thera who served the Maha Sangha Sabha of the Sri Lanka Amarapura Nikaya with great dedication, in order to ensure its unity and advancement, was in 1980 appointed its Co-Secretary (Sama Lekhakadhikari) and in 1992 as its Chief Secretary (Maha Lekhakadhikari) It is only appropriate to place on record that during this period of about fifteen years he performed a very special quality of service to the Sasana by updating the Amarapura Sangha Sabha; by setting up a Kathikavata (Ecclesiastical Edict) for the Amarapura Nikaya (whereby ‘rules governing the discipline and conduct of Buddhist monks including matters related to the settlement of disputes’ together with a Sanghadhikarana Panatha (i.e. an Ecclesiastical Act) were drafted and approved; and finally by drafting a strong, formal Constitution and obtaining approval for same.

It was on 17th December 2016 that the Venerable Kotugoda Dhammavasa Anunayaka Thera became the Mahanayaka of the Amarapura Nikaya, and that on a proposal made by none other than the Most Venerable Agga-maha-panditha Ambalangoda Sumangala Maha Nayaka Thera who, at the time, was himself the incumbent.

On 3rd October 2008 the Venerable Kotugoda Dhammavasa Maha Nayaka Thera was appointed to the post of Chairman, and it was on 26th May 2017 that he was elected Uttareethara Maha Nayaka or Supreme Maha Nayaka, which is the highest position within the Sri Lanka Amarapura Nikaya.

He has visited many countries in Asia and Europe disseminating the Dhamma and participating in Conferences thereby earning great international fame. Meanwhile he also serves as the incumbent monk of the Sri Lanka-aramaya in Myanmar and of the Charumathie Viharaya in Nepal.

In the matters of national and religious issues in the country he expresses his views in such a calm and collected manner that he has earned the respect of the Supreme Maha Nayaka Theras of other Nikayas and politicians both in power and in the Opposition and of intellectuals.

He has been honored with the title of “Agga Maha Panditha” by the Government of Myanmar. Although other honorary awards were conferred upon him by foreign countries and foreign institutions he does not use them, entirely because of his humble disposition.

At the end of and exposition of the Dhamma (a Dharma Desana) at Temple Trees His Excellency Mahinda Rajapaksa (who was then the incumbent President of the country) made an offering to him of about 14 perches of land in Wellawatte. Upon this land stands today, the “Office of the Sangha Sabha of the Amarapura Maha Nikaya”, a three-storied building replete with all conceivable facilities. It is a matter of great joy to us that in honour of the Most Venerable Kotugoda Dhammavasa Maha Nayaka Thera it was possible for us to make an offering of this building to the Buddha Sasana, on the 15th of August 2020.

We offer merit to His Excellency the President and the Honourable Prime Minister who are today attending to each and every need of our Supreme Maha Nayaka Thera in a spirit of extending infinite regard and respect to him, in appreciation of the national and religious service the Maha Thera has rendered.

Let us also gratefully place on record that the Honourable Sajit Premadasa, Leader of the Opposition, has provided an elevator as an offering to facilitate the caring for our Mahanayaka Thera.

I also wish to thank the Doctors, the Staff of the Nawaloka Hospital, Members of the Nikaya-abhivrudhi Dayaka Sabha (Organization for the Advancement of the Nikaya) and the Dayaka Sabha of the Mahanayaka’s Vihara and who are all providing medical care.

Arrangements were made by the Dayaka Sabha and the student monks to offer alms to the Sangha to mark the birthday of our Thera when he reached the age of 88, on 26th January 2021.

On 21st January 2021 at 7.00 p.m. a Bodhi Pooja was organized by the Amarapura Nikaya-abhivruddi Dayaka Sabha at the historic Kalutara Bodhi to invoke blessings upon our Supreme Maha Thera.

May the Supreme Maha Nayaka Agga Maha Panditha Kotugoda Dhammavasa Maha Nahimi live a life free from sickness and sorrow.

 

Deshamanya Ajita de Zoysa

Chairman

Sri Lanka Nikaya-abhivruddi Dayaka Sabha

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Govt.’s choice is dialogue over confrontation

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By Jehan Perera

Preparing for the forthcoming UN Human Rights Council cannot be easy for a government elected on a nationalist platform that was very critical of international intervention. When the government declared its intention to withdraw from Sri Lanka’s co-sponsorship of the October 2015 resolution No. 30/1 last February, it may have been hoping that this would be the end of the matter. However, this is not to be. The UN Human Rights High Commissioner’s report that will be taken up at the forthcoming UNHRC session in March contains a slate of proposals that are severely punitive in nature and will need to be mitigated. These include targeted economic sanctions, travel bans and even the involvement of the International Criminal Court.

Since UN Secretary General Ban Ki-Moon’s visit in May 2009 just a few days after the three-decade long war came to its bloody termination, Sri Lanka has been a regular part of the UNHRC’s formal discussion and sometimes even taking the centre stage. Three resolutions were passed on Sri Lanka under acrimonious circumstances, with Sri Lanka winning the very first one, but losing the next two. As the country became internationally known for its opposition to revisiting the past, sanctions and hostile propaganda against it began to mount. It was only after the then Sri Lankan government in 2015 agreed to co-sponsor a fresh resolution did the clouds begin to dispel.

Clearly in preparation for the forthcoming UNHRC session in Geneva in March, the government has finally delivered on a promise it made a year ago at the same venue. In February 2020 Foreign Minister Dinesh Gunawardena sought to prepare the ground for Sri Lanka’s withdrawal from co-sponsorship of UN Human Rights Council resolution No 30/1 of 2015. His speech in Geneva highlighted two important issues. The first, and most important to Sri Lanka’s future, was that the government did not wish to break its relationships with the UN system and its mechanisms. He said, “Sri Lanka will continue to remain engaged with, and seek as required, the assistance of the UN and its agencies including the regular human rights mandates/bodies and mechanisms in capacity building and technical assistance, in keeping with domestic priorities and policies.”

Second, the Foreign Minister concluding his speech at the UNHRC session in Geneva saying “No one has the well-being of the multi-ethnic, multi-lingual, multi-religious and multi-cultural people of Sri Lanka closer to their heart, than the Government of Sri Lanka. It is this motivation that guides our commitment and resolve to move towards comprehensive reconciliation and an era of stable peace and prosperity for our people.” On that occasion the government pledged to set up a commission of inquiry to inquire into the findings of previous commissions of inquiry. The government’s action of appointing a sitting Supreme Court judge as the chairperson of a three-member presidential commission of inquiry into the findings and recommendations of earlier commissions and official bodies can be seen as the start point of its response to the UNHRC.

 

 

NEGATIVE RESPONSE

 

The government’s setting up of a Commission of Inquiry has yet to find a positive response from the international and national human rights community and may not find it at all. The national legal commentator Kishali Pinto Jayawardene has written that “the tasks encompassed within its mandate have already been performed by the Lessons Learnt and Reconciliation Commission (LLRC, 2011) under the term of this President’s brother, himself the country’s Executive President at the time, Mahinda Rajapaksa.” Amnesty International has stated that “Sri Lanka has a litany of such failed COIs that Amnesty International has extensively documented.” It goes on to quote from the UN High Commissioner for Human Rights that “Domestic processes have consistently failed to deliver accountability in the past and I am not convinced the appointment of yet another Commission of Inquiry will advance this agenda. As a result, victims remain denied justice and Sri Lankans from all communities have no guarantee that past patterns of human rights violations will not recur.”

It appears that the government intends its appointment of the COI to meet the demand for accountability in regard to past human rights violations. Its mandate includes to “Find out whether preceding Commissions of Inquiry and Committees which have been appointed to investigate into human rights violations, have revealed any human rights violations, serious violations of the international humanitarian law and other such serious offences.” In the past the government has not been prepared to accept that such violations took place in a way that is deserving of so much of international scrutiny. Time and again the point has been made in Sri Lanka that there are no clean wars fought anywhere in the world.

International organisations that stands for the principles of international human rights will necessarily be acting according to their mandates. These include seeking the intervention of international judicial mechanisms or seeking to promote hybrid international and national joint mechanisms within countries in which the legal structures have not been successful in ensuring justice. The latter was on the cards in regard to Resolution 30/1 from which the government withdrew its co-sponsorship. The previous government leaders who agreed to this resolution had to publicly deny any such intention in view of overwhelming political and public opposition to such a hybrid mechanism. The present government has made it clear that it will not accept international or hybrid mechanisms.

 

 

SEQUENTIAL IMPLEMENATION

 

In the preamble to the establishment of the COI the government has made some very constructive statements that open up the space for dialogue on issues of accountability, human rights and reconciliation. It states that “the policy of the Government of Sri Lanka is to continue to work with the United Nations and its Agencies to achieve accountability and human resource development for achieving sustainable peace and reconciliation, even though Sri Lanka withdrew from the co-sponsorship of the aforesaid resolutions” and further goes on to say that “the Government of Sri Lanka is committed to ensure that, other issues remain to be resolved through democratic and legal processes and to make institutional reforms where necessary to ensure justice and reconciliation.”

As the representative of a sovereign state, the government cannot be compelled to either accept international mechanisms or to prosecute those it does not wish to prosecute. At the same time its willingness to discuss the issues of accountability, justice and reconciliation as outlined in the preamble can be considered positively. The concept of transitional justice on which Resolution No 30/1 was built consists of the four pillars of truth, accountability, reparations and institutional reform. There is international debate on whether these four pillars should be implemented simultaneously or whether it is acceptable that they be implemented sequentially depending on the country context.

The government has already commenced the reparations process by establishing the Office for Reparations and to allocate a monthly sum of Rs 6000 to all those who have obtained Certificates of Absence (of their relatives) from the Office of Missing Persons. This process of compensation can be speeded up, widened and improved. It is also reported that the government is willing to consider the plight of suspected members of the LTTE who have been in detention without trial, and in some cases without even being indicted, for more than 10 years. The sooner action is taken the better. The government can also seek the assistance of the international community, and India in particular, to develop the war affected parts of the country on the lines of the Marshall Plan that the United States utilized to rebuild war destroyed parts of Europe. Member countries of the UNHRC need to be convinced that the government’s actions will take forward the national reconciliation process to vote to close the chapter on UNHRC resolution 30/1 in March 2021.

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Album to celebrate 30 years

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Rajiv Sebastian had mega plans to celebrate 30 years, in showbiz, and the plans included concerts, both local and foreign. But, with the pandemic, the singer had to put everything on hold.

However, in order to remember this great occasion, the singer has done an album, made up of 12 songs, featuring several well known artistes, including Sunil of the Gypsies.

All the songs have been composed, very specially for this album.

Among the highlights will be a duet, featuring Rajiv and the Derena DreamStar winner, Andrea Fallen.

Andrea, I’m told, will also be featured, doing a solo spot, on the album.

Rajiv and his band The Clan handle the Friday night scene at The Cinnamon Grand Breeze Bar, from 07.30 pm, onwards.

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