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By Mike Harris / 15 July, 2013
Fifty years of authoritarian rule has left its mark on Burmese society affecting the speed and process of transition.
This chapter will explore the political landscape and its potential effect on freedom of expression, the current impact of the government, constitution and judiciary on freedom of expression. Following this the chapter will explore how the ongoing ethnic conflict has impacted upon free speech and how recent developments in the right to freedom of association have affected the ability to protest in Burma.
It is unclear whether the transition to a functioning democracy based on the rule of law and human rights will be completed, or whether the transition will remain incomplete: this will have the largest impact on freedom of expression in Burma in the near-future.
The transition formally began in November 2010 with the release from prison of Aung San Suu Kyi. A week earlier the military-backed Union Solidarity and Development Party (USDP) won a landslide victory in the first elections held in Burma in 20 years. Although the elections were not fully fair and free they marked the beginning of a new more democratic process in the country.
Since 2010, political prisoners have been released, censorship boards abolished, the leading opposition political party the NLD has been allowed to regroup and by-elections have given leading NLD figures seats in parliament for the first time. Yet, there remains uncertainty over the motives of the main political actors and their commitment to the transition, in particular regarding President Thein Sein’s commitment to reforms to bolster freedom of expression and other civil and political rights. The USDP’s motives are also questionable as the party is split between reformers and those closer to the generals, who urge caution on the speed of change, or whether the transition should be happening at all. While the government’s choice is over the speed and depth of reform; the new openness is presenting Aung San Suu Kyi and the NLD with new scrutiny over their policies. Freedom of expression is providing space for the opposition to debate issues in public that had previously remained unresolved, but is also raising new questions for the opposition to answer. The space for political debate is far greater than at any time in Burma’s recent history, yet with the transition incomplete, the legal framework has changed little. The restrictive 2008 constitution and the politicised judiciary means that the executive still has considerable powers to curtail freedom of expression; that these powers are increasing falling into abeyance does not mean that reform is no longer necessary.
Similar to some other states in transition, the greater political and social freedom has opened the space for once repressed ethnic, religious and generational tensions to resurface causing significant short-term instability in certain regions. This instability is now a cause of serious concern within Burma that may derail the pace of the transition.
Finally, one of the most serious challenges to freedom of expression in this chapter will be covered, namely Burma’s restrictive laws on freedom of association and protest. Here little progress has been made since the beginning of the transition, and arguably with new laws on protest missing an opportunity for reform, progress has stalled.
The role of the President Thein Sein and the USDP
The transition has been unexpected in Burma. Many of the same authoritarian military leaders that suppressed the 2007 ‘Saffron Revolution’ are now in positions of influence in the newly formed Union Solidarity and Development Party (USDP), which is the leading party in the country, and is allowing the transition. In practice, the military has controlled the country since the coup d’etat in 1988 after the ‘Four Eights Uprising’, with the movement to civilian rule under the newly formed Union Solidarity and Development Party (USDP) merely regrouping the military-led State Peace and Development Council power networks into a new political party. Today, the Union Solidarity and Development Party (USDP) controls the main institutions of state in Burma: the presidency, near half the seats in the lower house (Pyithu Hluttaw) and over half the seats of the upper house (Amyotha Hluttaw) of the Burmese parliament. When the seats appointed by the military are included, the USDP has an overwhelming majority in both houses. The majority of USDP parliamentarians and politicians including President Thein Sein are closely associated with the military as former senior officers or as government officials with strong military connections. Thein Sein himself was a former army major who rose up into the junta’s State Peace and Development Council in 1997. As the USDP and military still have extensive control of the political sphere, the transition is overly dependent on their willingness to reform Burma.
Thein Sein is pivotal to the country’s transition which was unexpected and still surprises many Burmese activists who lived through the 1988 and 2007 uprisings. The independent media in Burma ascribe his motives for the transition as varying; from the need for increased economic independence from China, to the benefits for the military elites from economic development, to personal reasons such as his desire to secure the Nobel Peace Prize or his wish to win the presidency in Burma’s first truly free presidential elections. The tough sanctions placed on Burma gave the international community significant leverage, the easing of sanctions in response to the transition has supported the reformers within the regime but diminished the leverage of the international community. The key question is now how committed the USDP is to reform and to what extent will the transition become embedded or retreat?
Leading retired generals have given Thein Sein and the USDP significant leverage to democratise in order to improve the state of the faltering economy. The generals hold economic interests in the Union of Myanmar Economic Holdings, which holds the generals’ pension fund, and Myanmar Economic Corp. Economists cannot determine how much these assets are worth in relation to the overall Burmese economy. What is clear is that the generals have a strong vested interest in seeing economic development that will in turn increase the value of their holdings.
Thein Sein is not alone in the USDP in publicly welcoming the transition. There are a number of quasi-reformists within the government and the Union Solidarity and Development Party including the party’s Vice-Chair Thura Aye Myint, the Minister for the Presidential Office Aungr Min and Thura Shwe Mann the speaker of the lower house and formerly the third most important person in the military regime. Thura Shwe Mann enjoys significant popularity among representatives of the Pyithu Hluttaw (lower house) thanks to his determination to empower the house. He is noted for his promotion of cross-party working, “If you really love your country…let’s work for people without political bias, regional bias and religious bias”. His advocacy of parliamentary democracy is said to be the result of being overlooked for the presidency in favour of Thein Sein.
One particular pressure point for the military is their close economic and political relationship with the Chinese government that has led Burma to be over-dependent on Chinese as a source of inward investment and international support. Many in Burma have not forgiven the Chinese for vetoing a motion at the UN Security Council condemning the military’s violence during the Saffron Revolution in 2007. A number of Chinese-backed projects including the Monywa cooper project, Irrawaddy river dam (that would have exported 90% of its electricity to China) and the Letpadaung copper mine have all faced significant public opposition due to their links with China. The pressure on the government during the Irrawaddy river dam protests was so great the President suspended the project until after the 2015 elections. With the easing of US-EU sanctions and new overtures from these trading blocks, the China-Burma bilateral relationship is likely to be tested in the run-up to the 2015 elections.
In contrast to China, the United States and United Kingdom while engaged in the situation, both remain myopic over the scale of the challenge of transition. Both countries were committed to easing sanctions with statements from Secretaries Kerry and Hague to this end. Yet while the easing of sanctions is part of the package that has made the transition mutually beneficial for both parties, civil society in Burma is concerned that too much may be given away without corresponding reform that will deliver lasting change.
The US began easing its sanctions on trade on 17 April 2012, when it authorised the export of financial services in support of civil society in Burma. This was followed by a general license to expert financial services, and make investments in the country on 11 July 2012. In November that year, the US eased the ban on imports from Burma. Yet, asset freezes remain on individuals linked to the regime remain in place. On 23 November 2012, the US added seven new Burmese entities (individuals or companies) to its Foreign Assets Control register.
The EU has eased its sanctions at a slower pace. The EU’s sanctions which included an asset freeze on around 1,000 companies and institutions in Myanmar and a travel ban to prevent around 500 officials entering the EU were lifted on 22 April 2013 by the Foreign Affairs Council of the European Union. The only remaining sanctions in place are to prevent arms sales to Burma. This decision was criticised by human rights NGOs for reducing the EU’s leverage prior to more significant reforms being undertaken and at a time when ethnic conflict was escalating.
For other partners, including India as an emerging power the relationship is motivated far more by economics and concern at China’s “ring of pearls” sphere of influence. Prime Minister Manmohan Singh signed 12 Memorandum of Understanding on development and connectivity issues, but none on human rights, during his trip in May 2012. India’s support for the opposition was strong in the years after 1988, but had cooled by the end of the 1990s. Unlike Singh, Russia’s Vladimir Putin has not visited Burma. Russia’s relationship with Burma has been more similar to China in that Russia helped block a 2007 UN Security Council resolution on human rights violations in Burma and has worked with the country on “energy security”, controversially helping Burma with a proposed nuclear reactor. Since the transition, Russian oil companies have been increasingly present in the country.
The role of Aung San Suu Kyi and the NLD
The transition has opened up for the space for the largest opposition group the National League for Democracy (NLD) to operate. After 20 years under house arrest, the release of the NLD’s general secretary, Nobel Prize winner Aung San Suu Kyi, was a hugely significant moment for the people of Burma. The release both signalled the intent of the generals and USDP to satisfy demands from the international community for reform and took the people of Burma by surprise due to the totemic importance of Aung San Suu Kyi’s detention.
The arrests, detention and harassment of leading NLD figures including Aung San Suu Kyi were curtailed after the lifting of “the Lady’s” house arrest on 13 November 2010. This has given the movement considerable space for political speech – with public rallies, media performances, reopened NLD offices as well as the ubiquitous posters of Aung San Suu Kyi prevalent across Burma. After being formally re-registering as a political movement in December 2011, the NLD won 43 of the 44 seats it contested in the 2012 parliamentary by-elections. While the situation for the NLD is markedly different, the transition has raised further questions for the movement: how can the NLD as a minority party live up to the expectations of the Burmese people for a more open society, can the NLD progress from a freedom movement into a modern pluralistic political party?
The NLD is publicly committed to democracy and human rights with a particular commitment to freedom of expression. The day of Aung San Suu Kyi’s release she made a public statement in favour of freedom of speech saying: “[the] basis of democratic freedom is freedom of speech” adding that one woman’s expression is not democracy “We must walk together”. During her first campaign speech to state television prior to the 2012 by-elections, Aung San Suu Kyi called for a number of reforms to strengthen freedom of expression including stronger protections for media freedom, judicial independence and legal aid. As yet, these policies are not fully developed, but the NLD has engaged in various public debates during the transition with specific policy statements on media regulation and the constitution.
It is a significant indicator of the transition that the NLD is represented in parliament after over 2 decades of repression since their 1990 election victory was annulled by the military. Yet due to the USDP and military majority in both chambers of parliament, the NLD’s room for manoeuvre is limited. A few activists spoke of her election to parliament as a “stitch up” orchestrated by the generals that would give her the impression of power without any ability to change the situation. There is an increasing fear the minority NLD group in parliament will be unable to satisfy the hunger for reform, leaving the public disenchanted.
After decades of oppression, NLD party activists routinely self-censored and were loath to criticise Aung San Suu Kyi or their party’s policy. In recent weeks, the media have begun to speak out publicly over the lack of openness and democracy in the way that the NLD decides public policies, or media talking points, which still often come directly from Aung San Suu Kyi. Many observers noted that the media fear alienating their audience by directly criticising Aung San Suu Kyi, and that self-censorship of criticism of her was arguably greater than the self-censorship of criticism of the government. However, in recent months, the limited criticism of the NLD and Aung San Suu Kyi has increased with the publication of the report of the commission she chaired into environmental damage at Letpadaung. Critics of the commission’s report state that economic interests have been placed above concerns over the environmental damage of the mine. While environmental activists in Mandalay refused to criticise Aung San Suu Kyi directly at an event which covered Letpadaung, 500 angry local protesters made their views known during her visit on the day of the publication of her commission’s report.
The NLD also faces a generational challenge. Many younger interviewees spoke of the need for a third political party to fully represent a wider range of views, and there was disillusionment with the NLD’s congress in which older faces continued to dominate the expanded Central Executive Committee. The 88 Students Association, in particular Ko Ko Gi and Min Ko Naing, are increasingly critical of the NLD leadership and a faction of the Association led by Ko Ko Gyi are preparing to form a new party. The ability of the NLD to accommodate a more pluralistic politics, after holding a near-monopoly on opposition to the military regime and the policies of any breakaway political parties, will in part determine Burma’s ability to develop into a state where freedom of expression becomes deep rooted.
Lawyers in Yangon expressed concerns over the independence of the judiciary. Prior to the transition, human rights defenders were handed down lengthy sentences by the judiciary, notably a 59 year sentence for comedian and activist Zarganar. In 2008 Constitution embedded the lack of judicial independence with all Supreme Court judges appointed by the President. Parliament still has no right to deny presidential confirmations. These concerns echo the progress report of the UN Special Rapporteur on the situation of human rights in Myanmar, Tomás Ojea Quintana (7 March 2012) who noted: “Myanmar lacks an independent, impartial and effective judiciary” which seems unwilling to reform internally “the Chief Justice and other justices of the Supreme Court, the Special Rapporteur noted limited acknowledgement of challenges and gaps in capacity or functioning, and a lack of willingness to address his previous recommendations.” A report, The Myanmar Rule of Law Assessment, expressed concerns that judicial decisions are sometimes made directly by the executive branch. The assessment notes that in the criminal justice system more than 90 percent of accused are convicted, with no access to free legal defence, and that judges need training in the basics of criminal law, such as requiring witnesses and not just relying upon testimony of the police and military. Without reform to improve the working of the judiciary, a chill will remain on civil society through concerns over the arbitrary application of the law and executive involvement in judgements and sentence lengths.
One important change to the administration of the law was the forced retirement of Thein Soe, the former Chief Prosecutor and a former general who was moved aside by the Chair of the Constitutional Tribunal. Soe was behind the lengthy sentences after the 2007 Cyclone Nargis protests.
“The country could fall apart at the touch of a key.”
Blogger Nay Phone Latt
Burma is host to some of the longest running ethnic-based civil conflicts anywhere on earth with the Karen ethnic conflict beginning after the end of World War II. While the country is 90% Buddhist, it is also a multi-religious and multi-ethnic state home to over 100 ethnic groups. It is not a peaceful diversity, with a number of long-running conflicts that have increased in intensity in the past year. These conflicts have impacted on freedom of expression in a number of ways – with the military using the conflict as a pretext for tough security measures including the 1975 State Protection Act and a slower pace for the transition and in more structural ways for instance with ethnic-based restrictions on education limiting literacy. For the military, the conflicts are useful justification for draconian legislation, including the 1975 State Protection Act and elements of the 2008 Constitution that guarantee the integrity of the state. The military use state of emergency powers – such as in Rakhine State in June 2012 and in the city of Meikhtila on 22 March 2013 – routinely with little parliamentary or judicial oversight.
Resolution to on-going conflict in Rakhine State, Kachin State and Kayin State is not assured in the transition to democracy. In many ways, the opening up of Burmese society has re-opened many ethnic wounds. International Crisis Group argues the transition has opened up a space for nationalist causes to organise, allowing them to air grievances and issue a call to arms. Peace campaigners in Burma have expressed concerns over the use of social media to organise violence against ethnic minorities. The safety of certain ethnic groups, in particular the Rohingya, has deteriorated significantly during the transition with reports of systematic ethnic cleansing. Increased freedom of expression, while aggravating ethnic violence, is also providing the platform for solutions to the conflicts. A 27-member commission to investigate the violence in Rakhine state was formed by the President comprising an MP, former political prisoners such as Zarganar and 88-generation member Ko Ko Gyi, alongside religious leaders from the Buddhist and Muslim communities, though notably no Rohingya representatives. The commission recommended that the government set up a “truth-finding committee” to look into the causes of the 2012 violence, which was welcomed by Myo Thant a Rohingya representative of the Democracy and Human Rights Party. Yet the committee was criticised by Rohingya representatives for not advocating reform to Burma’s widely criticized 1982 citizenship law, which denies the Rohingya Burmese citizenship.
In response to the violence and ethnic cleansing, Time magazine’s 1 July issue led with a front cover of nationalist monk U Wirathu with the headline, “The Face of Buddhist Terror”. On 25 June, the local distributor of Time magazine, Inwa publications, claimed that in response to public pressure it had decided to no longer distribute this issue of Time magazine. A day later, Burma’s government announced it had banned the sale, reproduction, distribution or even possession of this issue of Time. The Central Management Committee for Emergency Periods stated in government newspaper, The New Light of Myanmar:
“To prevent the occurrence of racial and religious conflict, the Central Management Committee for Emergency Periods has announced in the name of public interest not to allow sales, reproduction, distribution or possession of ‘The Face of Buddhist Terror’ article from Time’s July 1 issue. We have found that Time’s coverage can cause misunderstandings and jeopardize the interfaith trust-building that the government is trying to implement”.
The banning of Time magazine demonstrates the limited space in Burma for discussion of ethnic conflict (see Press Freedom) and the sensitivity of the government on this issue.
The conflict affects freedom of expression in a broad range of ways. Access to education for many minorities in Burma is restricted by the internal displacement of 339,200 people with a further 808,075 deemed stateless by the UNHCR with no citizenship and limited access to education (less than 30% in some areas). This lack of a formal education has reduced literacy for minority groups impacting on their ability to share and receive information, or access the media.
Right to freedom of association & civil society
There remain significant legal restrictions to freedom of association in Burma. The 1988 Registration Law combined with the 1908 Unlawful Associations Act is used to prevent the registration of civil society organisations which should have otherwise been lawful under international law. The space for civil society grew after a number of international NGOs were allowed into the country in the aftermath of Cyclone Nargis in 2008 and the government understood that not all international NGOs are human rights activists and that many put their humanitarian work first.
As will be explained below, for domestic associations the legal framework remains restrictive, although the numbers of informal, often unregistered, civil society groups has risen during the transition. A number including youth movement “Generation Wave” and single issue groups such as those behind the Irrawaddy river dam protests have demonstrated success in publicly challenging the government. The threat remains that any retreat from the current openness of the government, will lead to draconian actions against unregistered (and therefore illegal under domestic law) groups.
The 1908 Unlawful Associations Act, a legacy of colonialism, gives the President wide-ranging powers to ban organisations for interference with the administration of law; undermining law and order, or constituting a threat to public peace. The exercise of such executive powers is not subject to judicial oversight. The law has been used to ban or prosecute civil society organisations in the past including groups promoting human rights. The 2008 Constitution granted the right to establish associations (article 354c) and consult with civil society (Article 118a) and Index was told during its mission that registering an association had become easier in recent years. It is still an arbitrary process with approval needed at township, district, state / division level and from the Ministry of Home Affairs. Neither does the legislation comply with international human rights standards – in particular, there is no right to appeal the decision at any level of government to refuse permission to form an association.
The Local Resource Centre in Yangon surveyed 40 grassroots NGOs in Burma in 2012 and found that policy directions at national level to liberalise the framework for registering NGOs were not being implemented by township-level officials making it difficult for many local NGOs to register or operate. Associations complain it can take 6 – 12 months to get official approval. In Mandalay Region, officials warned groups that monks and nuns were not allowed to be members of non-government organisations. In Yangon, a group that helped poor families take bodies to the cemetery had been refused permission to register for 10 years. Many of these decisions are believed to be political, targeting known activists to reduce their ability to deliver services (and win approval) from the population at large. Civil society in Burma during the military dictatorship, where it was allowed, was focused on practical service delivery in safer areas such as health, education and protection of the environment. Many of those involved in civil society groups had a political background but due to the personal risk had decided to take a more incremental approach to reform. New more professional political associations are emerging including the Myanmar Institute for Democracy and the Yangon School of Political Science, but many still refuse to register formally.
In August 2012, Burma’s Lower House of Parliament passed a motion “urging the government to draft an NGO registration law commensurate with the age as the president called for cooperation with civil society in the democratic transition”. Deputy Minister for Home Affairs Brig-Gen Kyaw Zan Myint has stated he does not believe a new NGO registration law is necessary, while personally acknowledging the legal grey area where less than a quarter of NGOs working inside Burma are registered under the current law. In March, the state media reported that the government’s redraft of the law included all the previous articles with only one new article excepting organisations that perform functions essential “daily livelihood functions”.
Case study: “Generation Wave”
Youth underground movement “Generation Wave”, emerging from an underground organisation, became a public group on 9 October 2011, on the fourth anniversary of the movement’s founding. As an underground organisation it faced severe repression with many of its leaders fleeing the country and the arrest of 27 of the movement’s activists in 2008. The signals the movement used to decide whether to work openly give an insight into the thinking of civil society in Burma. The meeting between Aung San Suu Kyi and President Thein Sein and her release from house arrest were seen as a seminal moments in the country’s transition. The reopening of NLD offices across the country was also seen as a significant indicator that they could regroup. Within four months of regrouping, they led their first public protest – without permission – in Yangon. In May 2012, the group collected 67,000 signatures for peace in Kachin state, an action unhindered by the authorities. One special branch officer even asked to sign the petition. “Generation Wave” models their organisation on the successful icons of peaceful protest such as Mahatma Gandhi and Martin Luther King, in contrast to what they perceive as the more confrontational, and often violent approach of the 8888 uprising. One activist argued young people wanted “no more Che Guevaras”. “Generation Wave” has more in common politically with modern equality movements, with a strong emphasis on ethnic equality and civil rights. “Generation Wave” continues to face restrictions on its activities with activist Moe Thway facing prosecution under section 505(b) of the Penal Code for an interview with a journalist. During the interview he criticised the local police for their use of section 144 of the Penal Code to keep villagers from their fields near the Letpadaung mining project. If found guilty, Moe Thway could face 2 years in jail.
Freedom of assembly
When interviewed, many activists, artists and lawyers raised the restriction on freedom of assembly as having the biggest impact on their freedom of expression due to its effect on public performance and public demonstrations that have the ability to influence public opinion. While the 2008 constitution guarantees the right to freedom of assembly (section 345(b)), a number of laws, including the Peaceful Assembly and Peaceful Procession Law and section 505 of the penal code are not compatible with the constitutional provision and therefore should be amended.
Section 505 of the penal code dates from the colonial era (1861) and continues to be used to stifle freedom of association. Breaching section 505 of the penal code is a criminal offence with a sanction of up to two years imprisonment. The key provision of section 505 states:
“505. Whoever makes, publishes or circulates any statement, rumour or report, -… (b) with intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquillity”.
The broadness of this public order provision gives the police an effective tool to curtail freedom of association. Recently, it has been used to prevent public performances by artists in Mandalay (the police stated it would cause “alarm”).
The law on Peaceful Assembly and Peaceful Procession was revised as of December 2011. Human rights organisations – including the International Commission of Jurists and Human Rights Watch – criticised the revision for falling short of international standards. Under emergency provisions from 1988, no assembly of more than 5 people for “the same purpose” was lawful. The new law allows peaceful assembly, but requires prior notification which is used in an arbitrary manner to hold up the organisation of event and can be used to ban them. To demonstrate, local groups need to apply for a permit from the police specifying: the time of the demonstration, the number of people who will attend and the streets you wish to protest on. All of these can be amended by the local authorities. On the permit, an organiser has to be specified (including their address and national ID number) who bears direct responsibility for any disorder or violence: a large disincentive to organising any actions in a country emerging from a military dictatorship.
Section 18 of the law is now used in conjunction with the law on Peaceful Assembly and Peaceful Procession. Civil society groups have been arrested using Article 18(b) of the Peaceful Assembly and Peaceful Procession Law, then subsequently charged under section 505 of the penal code. This combination of laws is used in particular to suppress local politics. A protest by market traders on 6 August 2012 was broken up using section 18 and one of the protest’s organisers was charged with causing “disharmony”. Section 18 permits fines of up to 30,000 Kyat ($30 on 9 July exchange rates).
The wide range of laws available to the authorities to curtail the free association and freedom of expression of civil society groups and associations is still stifling the openness of Burmese society. While the laws are no longer applied to the same extent as prior to the transition, their continuing existence in the criminal code is having a chilling effect on the formalisation of civil society from informal groupings into more professional NGOs and the restrictions on protest limit the ability of civil society to engage a wider spectrum of the population. The lack of judicial independence compounds the chilling legal framework, allowing for arbitrary judgements and sentencing and increasing the risks for civil society groups to exercise their right to freedom of expression.
NEXT SECTION: Media freedom
Burma: Freedom of expression in transition: Introduction | Politics and society | Media freedom | Artistic freedom of expression | Digital freedom of expression | Conclusion | Full report in PDF format
Tags: Asia | Authoritarian | Burma | Index Reports | Mike Harris | Politics and society
 Interview with journalist (Yangon, Burma, 15 March 2013)
 Interview with NLD activist (Mandalay, 12 March 2013).
 This was the opinion of 3 interviewees across 2 interviews in Mandalay on 12 March and Yangon on 15 March.
 Interview with journalists (Mandalay, 12 March 2013)
 ‘The Resource Curse’, Mandalay, 12 March 2013.
 International Crisis Group, ’Myanmar: Storm Clouds on the Horizon‘ (Crisis Group Asia Report N°238, 12 November 2012), p.2.
 Interview with human rights activist (Yangon, 16 March 2013).
 Interview with an NGO worker (Mandalay, 13 March 2013); interview with a lawyer (2) (Yangon, 16 March).
 Interview with a lawyer (2) (Yangon, 16 March 2013).
 Interview with an activist (Yangon, 15 March 2013).
 Burmese Penal Code (1 May 1861). Text provided by a leading opposition lawyer.
 Interview with artists (Mandalay, 13 March 2013).
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