A dagoba damaged by treasure hunters. (File photo)
By Kalyananda Tiranagama
Lawyers for Human Rights and Development
It has been reported that the Ministry of Justice is moving to amend the Antiquities Ordinance, repealing the provisions therein preventing the courts from releasing persons charged with or accused of offences under the Antiquities Ordinance on bail. Under the proposed amendment, the Magistrate’s Court is to be given power to release such persons on bail. This proposal is made in the guise of a measure to reduce prison congestion.
Theft of antiquities, demolition of the Buddha statues and causing damage to archeological sites by treasure hunters and the willful destruction and damage of antiquities and archeological sites by interested parties have become serious problems that need to be urgently addressed with deterrent action.
As reported in the media, from 1977 to 1994 the Police received 242 complaints of theft, damage and destruction of antiquities; from 1995 to 2001, the number of complaints the Police received was 424. There is a sharp increase in the number of incidents reported in the recent past. In 2019, the Archaeological Department received 630 complaints of incidents where antiquities were either damaged or destroyed. During the first nine months of 2020, 430 such incidents were reported to the Archeological Department.
The Antiquities (Amendment) Act No. 24 of 1998 was enacted by Parliament with a view to preventing the incidents of theft of antiquities and willful destruction and damage of antiquities and archeological sites. This Act introduced three new provisions enhancing the penalties for offences under the Ordinance and requiring the offenders to be kept in custody without bail till the conclusion of the trial.
S.15A. Any person committing theft of an antiquity in the possession of any other person shall be guilty of an offence –
S.15B. Any person willfully destroying, injuring, defacing or tampering with an antiquity or willfully damaging any part of it shall be guilty of an offence –
S. 32. Any person who commits a breach of (a) any provision of S. 21 (commencing or carrying out any work of restoration, repair, alteration or addition in connection with any protected monument except upon a permit issued by the Commissioner General of Archeology), or (b) any regulation made under S. 24 shall be guilty of an offence – punishable on conviction after summary trial before a Magistrate with a fine not exceeding Rs. 50,000 or with imprisonment for a term not less than two years and not more than 5 years or with both such fine and imprisonment. Same penalty has been laid down for all offences under the Act.
S. 15C. Notwithstanding anything to the contrary in the Code of Criminal Procedure Act or any other written law, no person charged with or accused of an offence under the Antiquities Ordinance shall be released on bail.
The penalties laid down in the Act for these serious offences are hardly adequate to have a deterrent effect on the culprits. The Court has the option of imposing a fine instead of a jail sentence. The maximum fine that can be imposed is Rs. 50,000. Quite often a fine of a lower amount is imposed. It is very seldom that a sentence of imprisonment is imposed on an offender in these cases.
Only the provision that a person charged with or accused of an offence under the Antiquities Ordinance cannot be released on bail by any Court has some deterrent effect on the offenders. They have to remain in custody for a few weeks or a few months till they are charged in the case. Once they are charged, in most cases they plead guilty and pay a fine and walk away.
In response to certain media reviews critical of this move to amend the law enabling Magistrates to release the suspects on bail when they are produced in Court as something detrimental to the protection of our archeological heritage, Chief Legal Advisor to the Ministry of Justice, Mr. U. R. de Silva, P. C. has issued an explanation justifying the Justice Ministry decision to relax the law, enabling the Magistrates to release the offenders on bail. According to his explanation:
All those who are arrested and produced in Court by the Police are not treasure hunters. Abusing the law, the Police arrest and charge innocent people. As an example, he cites how the Police produce drug addicts in Courts as drug traffickers, preventing them from being released on bail by the Magistrates.
It is no secret that the Police have heavily contributed to the congestion in prisons by producing in Courts many drug addicts as drug traffickers, abusing the law and thus preventing them from being released on bail by the Magistrates. The Attorney General is also aware of this. That is why the Attorney General, following the Mahara Prison riot, stated that he had instructed the Inspector General of Police several times to consider filing cases under S. 78(5) of the Poisons, Opium and Dangerous Drugs (Amendment) Act instead of S. 54 (a), which has been the usual practice, in order to reduce prison congestion.
Why doesn’t the Ministry of Justice propose to amend the Poisons, Opium and Dangerous Drugs Act, enabling Magistrates to grant bail to persons arrested with small quantities of drugs instead of keeping them in custody for years without bail, in the same manner it proposes to amend the Antiquities Ordinance?
If the Police abuse the law by arresting and producing in Courts innocent people as treasure hunters and keep them in custody without bail, why can’t the AG and the IGP direct them to strictly comply with the law and take action against the police officers who abuse the law?
This is a state of affairs totally different from what the legislature expected.
It is an erroneous statement. Parliament enacted this law in 1998 specifically for the purpose of protecting antiquities by taking stern action against those who damage or destroy them. S. 15C clearly states that whatever the other laws may state, no person charged with or accused of an offence under the Antiquities Ordinance shall be released on bail.
As the Immigrants and Emigrants Act has been amended enabling Courts to release suspects on bail, it is a grave mistake not to amend the Antiquities Ordinance enabling Courts to grant bail.
This is also not a correct statement. The Immigrants and Emigrants Act was amended by Act No. 31 of 2006 to grant relief to hundreds of suspects held in custody being unable to obtain bail due to the Supreme Court Judgment given in 2006 in Thilanga Sumathipala case (Attorney General & others vs. Thilanga Sumathipala – (2006) 2 SLR 126) depriving the Court of Appeal of its jurisdiction to grant bail.
This Act made provision for release on bail of all persons held in remand without bail on the date on which this Act came into operation due to the Supreme Court Judgment in the Thilanga Sumathipala case.
This Amendment Act did not grant power to the Magistrate’s Courts to release on bail all suspects held in custody in respect of all offences under the Immigrants and Emigrants Act. Under this Amendment, a Magistrate can grant bail only for an offence in respect of which there is no express provision made for granting bail. – S. 47A (2) Where there is an express provision for granting bail, a Magistrate cannot grant bail in respect of such offences.
Only a High Court can grant bail to a person accused of an offence under S. 45C of the Act upon proof of exceptional circumstances.
S. 47 (1) of the Act states that, notwithstanding anything in any other law, the offences mentioned therein shall be non-bailable and no person accused of such an offence shall in any circumstances be admitted to bail.
Whenever any digging is done anywhere the Police have the habit of arresting persons and producing them in Court as suspects under the Antiquities Ordinance. They have to languish in custody for months till the certificate is produced showing that it is not a place coming under the Antiquities Ordinance.
The Antiquities Ordinance clearly states what are the offences coming under it. Instead of amending the law enabling Magistrates to release the offenders committing all kinds offences under the Ordinance on bail at the time they are produced in Court, there are many things that can be done to prevent the Police from acting arbitrarily abusing the law.
The Police cannot arbitrarily arrest people and produce them in Court for digging any land; If they do so a complaint can be made against the Police to the Supreme Court or the Human Rights Commission for violation of fundamental rights.
The Attorney General can direct the Police not to arrest and prosecute without ascertaining from the Archeological Department whether it is a site with antiquities.
The Court can promptly call for the certificate from the Archeological Department.
e. Another sorry state of affairs is that, though the place where the digging was done is not a place coming under the Antiquities Ordinance, the Police file action on the opinion of the Commissioner General of Archaeology that charges can be brought if it appears that the digging has been done in search of antiquities.
No such action can be filed under the law. It is an arbitrary action taken totally contrary to law. One cannot understand why the Bar Association of Sri Lanka and the lawyers appearing in these cases remain silent without challenging the legality of such actions.
f. As they cannot obtain bail, in many of these cases suspects plead guilty for an offence which they have not committed and pay the fine of Rs. 50,000 getting their image tarnished. Having understood this practical reality, the Ministry of Justice has taken action to address this issue.
This is a strange story. Why should a person plead guilty for an offence which he has not committed? How can a lawyer advise his client to plead guilty to an offence which he has never committed?
What are these cases in which the innocent people have pleaded guilty for offences which they have never committed and paid fines of Rs. 50,000 tarnishing their images? Before which Courts? Can the Ministry of Justice issue a list of these cases?
Why should they pay Rs. 50,000 in each of these cases? Rs. 50,000 is the maximum fine a Court can impose for any of these offences. As laid down in the Act, the penalty is a fine not exceeding Rs. 50,000. The Court has the discretion to impose a lesser fine. Depending on the circumstances of the case it may be a fine of Rs. 10,000, 20,000 or 25,000.
All these are false premises.
Archeological sites and antiquities in a country are the national historical heritage of the people of the country. Not only the present generation, but all the future generations also have an equal right to them. Destruction of archeological sites and antiquities will result in the destruction of the historical national heritage of the people of the country. It may be a deliberate attempt at turning the history of the country upside down by erasing historical evidence. It is worse than any act of destruction of environment.
If any forest is destroyed it can re-forested. But if an antiquity or an archeological site is destroyed it can never be restored to its previous condition. Bamian Buddha Statues destroyed by Talaiban in Afghanistan is a clear example. A replica may be erected in its place, but it has no historical or archeological value. Any change, alteration, removal or addition of parts in an antiquity or an archeological site will result in the diminution of its archeological value. That is why even commencing or carrying out any work of restoration, repair, alteration or addition in connection with any protected monument without a permit issued by the Commissioner General of Archeology has been made an offence punishable under the law and all offences under the Antiquities Ordinance have been made unbailable by any Court of law.
Frequently our media, both print and electronic, disclose incidents of destruction of antiquities and archeological sites throughout the country. Many of these incidents reported from the Northern and Eastern Provinces, are not acts of treasure hunters, but deliberate and planned acts of destruction of archeological sites by interested parties. Though hundreds of such incidents are reported, very seldom legal action is taken against the culprits due to lack of adequate resources in the Archeological Department and lethargy or insensitivity of the officials.
In the face of the threats currently posed, antiquities and archeological sites remain survived even to this extent due to the provision in S. 15C of the Ordinance that no person charged with or accused of an offence under the Antiquities Ordinance shall be released on bail by any Court. Even the Court of Appeal has no jurisdiction to release such a person on bail. If the Antiquities Ordinance is amended as proposed by the Ministry of Justice granting jurisdiction to Magistrate’s Courts to release on bail offenders charged with offences under the Antiquities Ordinance, any offender who has deliberately destroyed any priceless antiquity or archeological site will be able to obtain bail and go home on the day he was produced in Court itself. This will amount to giving an open license for the destruction of archeological heritage of our people. As the maximum fine that can be imposed is Rs. 50,000, any offender can pay the fine and get the license. By paying the fine he can get away after destroying any antiquity.
The Chief Legal Advisor to the Ministry of Justice has suggested to increase the penalties for the offence while granting jurisdiction to Magistrate’s Courts to release offenders on bail. If the offenders can get bail from the Magistrate’s Court when they are produced in Court, even if the amount of fine that can be imposed for the offence is increased to Rs. 500,000, that will not have any deterrent effect in preventing deliberate and planned activities of destruction of archeological sites in the North – East and other areas in the country.
If this amendment proposed by the Ministry of Justice is brought about that will seal the fate of all our unprotected antiquities and archeological sites. It will wide open the gates for destruction of our invaluable antiquities and archeological sites.as happened in the case of Devanagala, Kuragala and Vijithapura. No museum, antiquity or archeological site will remain safe thereafter.
It is an unshirkable duty and responsibility of the Government to protect this national heritage of our people for the posterity. It can be done not by relaxation of the laws enacted for the purpose protecting them, but by further strengthening the law against this destruction. If a mandatory minimum jail sentence coupled with a fine, such as imprisonment for a term not less than two years and not more than 5 years and a fine not less than Rs. 50,000, is laid down for the offences of theft of an antiquity and willfully destroying, injuring, damaging, defacing or tampering with an antiquity then the penalty may have a deterrent effect on persons prone to commit this type of offences. Persons committing these anti-national crimes must be kept in custody without bail till the conclusion of the trial as in the case of offences under the Prevention of Terrorism Act.
Trump Walks Out of the White House Into A Minefield of Legal Perils!
WHAT DONALD IS NOW UP AGAINST . . .
by Selvam Canagaratna
“Nobody has a more sacred
obligation to obey the law than those who make the law.”
– Jean Anouilh, Antigone, 1942.
“At some point in the next few weeks, Donald Trump will face his second Senate trial following an impeachment by the House of Representatives. Unlike the proceedings in late 2019 and early 2020, this time around — in the wake of the attempted coup on January 6th carried out by a violent mob inspired by Trump’s words to attack the US Congress — the process has been swift,” wrote Sasha Abramsky, a freelance journalist and a part-time lecturer at the University of California at Davis, in Truthout magazine.
The House impeached Donald Trump after a debate that lasted a mere few hours.
Given Trump’s inflammatory words on January 6th, and the unwillingness of senior lawyers to rally to his defense, and given the fact that has now publicly laid blame for the violent events squarely on Trump’s shoulders, the disgraced ex-President’s trial in the Senate could be almost as rapid.
If there is any honour whatsoever among GOP senators — or for that matter, any ability to think long-term about their own political self-interest — he will become the first President in US history to be convicted by that body. Of course, since he will have already left office, he won’t, alas, become the first President to be removed from power via an impeachment and trial process.
That’s a shame, but it doesn’t make the process any less vital. If American democracy is to survive, if political decisions aren’t to be held hostage by gun-wielding fanatics, Trump’s effort to undermine the peaceful transfer of power following an election must face real consequences.
Conventional wisdom has it, however, that most GOP senators, no matter how personally distasteful they find Trump and how terrified they were by his unleashing of a mob against them on January 6th, won’t want to antagonize their base by voting to convict. Conventional wisdom has it that, when push comes to shove, appeasement will win the day.
But in this instance, might conventional wisdom be wrong? As Mitch McConnell seems now to have concluded, and as and many of his caucus likely soon will, having shamefully enabled Trump these past four years, they now have precious little incentive to waste political capital on a wounded and discredited ex-President, a man who has lost his hold on many independents as well as on a significant minority of GOP voters.
To the contrary, they have every incentive, as more and more evidence of his malfeasance surfaces, to utterly disempower this demagogue in order to ensure that he can’t rise from the political ashes to wreak vengeance on those in the GOP who didn’t help him in his coup attempts. Convict him, and they can then, in quick order, pass legislation barring him from ever running for public office again — a fate that, surely, no public figure in American history has so richly deserved, and one that must have McConnell and other GOP leadership figures in the Senate privately salivating in delight. True, this would alienate a not insignificant proportion of the GOP base; but in the long run that might well be less damaging than alienating the independents who are so central to creating a viable electoral coalition for both political parties.
Were the Senate to turn on Trump in this way, McConnell would risk fracturing his base; after all, , and only coup. But if McConnell and the GOP establishment don’t seize this particular bull by its horns they risk being reduced to an extremist party incapable of attracting anyone outside of their shrinking base. In the long run, backing the conviction of Trump might offer them a one-off chance to cauterize their party’s bleeding wound, and to sever its joined-at-the-hip connection to an authoritarian leader who stoked a mob bent on assassinating elected officials. This is a phrase I never thought I’d write, but… “If I were Mitch McConnell, I’d seize the moment and throw Trump as far under the bus as I could possibly manage.”
For here’s the thing: If McConnell doesn’t lend his support — and, by extension, many of the other GOP senators’ support — to conviction, it will only further erode GOP credibility among the broader electorate if, over the coming months, as seems increasingly likely, Trump is indicted in a number of state courts for his myriad crimes. The lower Trump’s legal fortunes sink, the worse the senate will look if it twice exonerated him for his actions despite a preponderance of evidence indicating his guilt.
How would voters react if McConnell, after acknowledging Trump’s culpability for triggering the attempted coup, then pushed to give the man a free pass for it, only to have Georgia show more spine by indicting him for threatening a public official and demanding votes “be found” to guarantee Trump a victory he hadn’t legitimately won?
How would they react if New York State indicted Trump and miscellaneous family members for tax fraud, or campaign finance law violations, or possibly even money laundering, if some of the allegations surrounding his relationship to Russian mobsters turn out to have substance? How would they react if the for his role in the events of January 6? How would they react if — essentially for pimping out his services to foreign governments and entities?
when he leaves office on Wednesday. But, in addition, he is facing a number of as well, including from women who allege he assaulted them in the years before he became President. Given the events of the past two weeks, he may well also face numerous other civil lawsuits, including damages claims from family members of the victims of the January 6 Capitol breach. In each of these trials, evidence will be presented — and the public will see and read that evidence — that will make Trump look more awful by the minute. The further out we get from the Trump era, chances are, the more clear the harm he inflicted will become.
Trump’s corporate backers realize this. Belatedly, he is being cut off from his go-to financing sources, including Deutsche Bank, which has said it will no longer do business with him. As a result, as his legal woes mount, he will likely have to resort to crowd-sourced, dodgy money-making schemes simply to get his gullible supporters to pony up cash to fund his defense attorneys.
Although the fates may have finally caught up with this grifter, the political firestorm he helped create remains. For as Trump leaves the White House, his far-right supporters won’t magically disappear. Trumpism and its toxic spin-offs — from QAnon to the Proud Boys — will remain a threat on the American political landscape for years to come. That, alas, is the sobering reality as a new presidency gets underway and as Donald Trump, from domestic exile in Mar-a-Lago, prepares for his second Senate trial.
Jagan in R. K. Narayan’s “Vendor of Sweets”
The world- renowned author R.K Narayan’s novel “Vendor of Sweets” is undoubtedly a worthy contribution to the world of English literature. Born in Madras in 1906, Narayan hailed from an entirely orthodox family. This traditional up-bringing may have influenced him in presenting Jagan’s character in the story.
The story set in the post-independent era in India revolves round, as the title suggests, a vendor of sweets. Narrated in the medium of a third person Narayan uses the English language very effectively to portray characters which are essentially Indian. Yet the reader’s response is rather intimate as the characters transcend time, culture, geographical boundaries, religion etc. thereby achieving universality. In the ensuing analysis let us see how Narayan sketches Jagan’s character to achieve this universality.
As the story begins, we meet Jagan, the vendor of sweets in conversation with his cousin whom the narrator says that no explanation could be given as to how he came to be called so.
The first glance at Jagan gives an insight into his character when he says “conquer taste and you will have conquered the self” This extract from the Holy Scriptures quoted by Jagan was questioned by the cousin, “Why conquer self?” Jagan’s reply was “I do not know, but all our sages advise us so.” This is Jagan who Narayan portrays. The lack of analytical sense is him made him what he was.
This trait in him develops further as the story wends its way towards that tragic end. His limited capacity into in-depth thinking prompted him to accept whatever the sages say. He is unable to give an explanation as to why the taste should be conquered. He accepts it merely because the sages say so. This feature in him prevented his independent thinking. The cousin’s character in contrast with his inquiring mind sheds light on the portrayal of Jagan’s.
We see this trait extending further in his life in most of his dealings. For example, we know that he was in the forefront of the Indian Independence struggle ardently following Gandhi in his nonviolence campaign. What is striking is the fact that he followed Gandhi’s nonviolence policies to the letter and went to the extent of making his shoes out of the skin of an animal which had died due to old age. His words quite rightly justify the point. “I do not like to think that a living creature should have its throat cut for the comfort of my feet”
It is this behavior that makes us think of him as an extremist. He ventures into extremes without being realistic. His attitudes towards his wife’s sickness is one such instance where he became tenacious in the belief that only indigenous medicine can cure her headache. The narration stands to show that their first clash cropped up over such an argument.
The absence of an analytical mind drove him towards diffidence. He lagged behind taking decisions of his own. Even in the transactions with his son he needed cousin’s help to communicate. When his son told him that he wanted to give up his studies in College, he was aghast. His expectations of his son were entirely different. He wanted his son to pursue his studies and collect a BA degree. But he lacked confidence to discuss the matter with the son. He sought cousin’s help to mediate with the son. The cousin’s advice was that it would be best to know from the boy himself. He even suggested “why don’t you have a talk with him?” Jagan responded “Why don’t you?” This is a clear indication of Jagan’s character as a man who is not strong enough to take up challenges.
The home environment was such that the communication between father and son had come almost to a stand-still in the aftermath of the mother’s death. Jagan played the maternal role of feeding the boy properly but he paid little or no attention to the boy’s mental well-being. He was proud that Mali had grown physically. The narration stands to show that he was very proud of his son’s height, weight and growth. But he neglected the fact that as he grows his needs, requirements and aspirations need to be soothed for the wellbeing of his mental growth. He forgot the fact that his son is growing up without the warmth of the mother.
Jagan was in the habit of reading the “Bhagavad Gita” even in the midst of his business activities. However, his concentration on the religious scriptures was invariably hindered with the slightest quietening of the sizzling in the kitchen or if he noticed any slackness at the front stall. If a beggar is spotted by him near the entrance, he would shout “Captain, that beggar should not be seen here except on Fridays. This is not a charity house.” Such acts of Jagan revealed in no uncertain terms his hypocrisy and we know that his hypocritical demeanour was seen in many of his dealings.
Besides, Jagan was somewhat displeased when the trays in the sweet shop returned with the left-overs. It bothered him as if he had a splinter in his skull. When the head cook suggested that they can be turned into a new sweet for the next day, forgetting all his holy scriptures he readily agreed to it, saying “After all everything consists of rice, flour, sugar and flavours…..” His lofty ideals were mere lip-service and clear manifestation of hypocrisy in Jagan.
His hypocrisy does not end at this point. It further extends. We know that he maintained two books to record his business accounts. Narayan, very sarcastically records this act of Jagan when he puts it, “…… arising out of itself and entitled to survive without reference to any tax.” Such acts of dishonesty clashed with his so-called religious principles and the reader responds with discreet sarcasm.
A character sketch of Jagan is incomplete if no mention is made about his inter-personal skills. As mentioned above, his relationship with his wife and son ended in failure and so was his relationship with the members of the extended family. The narration reveals Jagan reflecting “They never liked me” and further the narrator’s words “Thus he had escaped the marriages of his nieces, the birthdays of his brother’s successive children and several funerals” What we gather from the narration is that Jagan felt grateful for being an outcast as it relieved him from his family obligations. This feature in Jagan drives home the point that Jagan was a failure in maintaining inter-personal skills which ultimately made his life pathetic.
This is Jagan we meet in Narayan’s “Vendor of Sweets” In Jagan we see a man not put into a frame. A blend of good and bad. A person made of flesh and blood and we begin to wonder whether we have not met him somewhere, in our daily transactions. Jagan is a victim not of evil but a victim of his own silly, weak or strange but harmless aspects of character. Jagan is essentially Indian but his hopes, aspirations and dreams are universal.
Written by Vivette Ginige Silva
R.K. Lionel Karunasena, fine athlete and exemplary police officer
Twenty years ago Lionel Karunasena had a heart attack while taking his constitutional walk at the Bambalapitiya Police park and collapsed.
He was born on January 2, 1945, in Ratnapura. He studied at the Seevali Maha Vidyalaya, Ratnapura, excelling not only in his studies but also in athletics. His forte was long jump and the triple jump. He was spotted by the talent scouts of the Ceylon Track and Field Club (CT &FC) and enrolled him to the club and found employment at Air Ceylon.
On November 11, 1964 at the CT& FC- University Athletics dual meet, he equaled the national long jump record of 24 feet two and a half inches established by N.A Weeratunga of the Mercantile AAA on the December 28, 1956.
The writer was a witness of this event. In his allotted six attempts, he jumped over 22 ft. One jump was nearly 25 feet but he over stepped the board. In his fourth jump he leapt into fame equaling the Ceylon record. This record was broken only in 1985!
At the Ceylon 1964 AAA nationals, he was placed third in the long jumps event. He won the event in 1965 and 66. His ambition in life was to serve as a protector of law and order. In order to achieve this, he joined the police as a sub inspector on June 26, 1967.
Despite his busy schedule as a police officer he continued to be involved in athletics representing the police. In 1977, he came third at the AAA Nationals when two Indian athletes, P. Bannerjee and Mohinder Singh took first and second places.
He represented Sri Lanka at the Asian Games in 1966 at Bangkok and again at Bangkok in 1970.
In the all-time list computed by the Sri Lanka AAA recorder, Lionel Karunasena ranks second.
He always believed in equality and denounced social injustices. Due to his dedication towards duty he won quick promotions and rose to the rank of DIG. His first appointment as DIG was to the Wanni. Here he was required to be in the war front. There he was a shining example to his colleagues.
He often visited the many camps in the war zone.
He served as the Commanding officer of the Police STF for over 13 years and was the fourth commanding officer of the STF. He had a miraculous escape when President Premadasa was killed by a suicide bomber on May 1, 1993. Seventeen others were killed along with the President.
He was a highly respected office in the police. His wife Chitra, daughter Sarika and son Shalike were well aware that he was a committed officer and at the same time a loving wife and devoted father. His long and dedicated service will be written in gold. May his journey through samsara be short and peaceful.
100,Barnes Place – 7 Colombo
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