The incoming Maoists-led government plans to scrap the 58-year-old Indo-Nepal Peace and Friendship Treaty and have a fresh pact reflecting new realties besides reviewing all other bilateral agreements."Our past policy towards the 1950 treaty remains unchanged, we want to scrap that treaty and replace it with a new one in the changed context," Maoist chairman Prachanda said as the former rebels were poised to head a new government. "We also want to review all other treaties signed between Nepal and India," the 54-year-old former school teacher said.
During the poll campaign, the Maoists said the treaty was 'unequal' which needed to be abrogated, a demand which was also made in the Himalayan nation eight years back. Under the treaty, people living in both countries could freely travel across the border for employment and reside in either place. There is a termination clause in the treaty and Nepal can do away with the pact, which is basically meant to address India's security needs, if it is uncomfortable. "I think a new dimension has now been added to our relations with India," Prachanda said.
"If we consider the situation right from the signing of the 12 point agreement with Seven Party Alliance in Delhi in November 2005 and now when the Constituent Assembly polls have been successfully concluded, an atmosphere has been created to forging a new unity on a new basis with India," he said. "We believe that in this new context Nepal-India relation should be taken to a new height in a more positive and constructive way," the CPN-Maoist party chief said.
Saturday, April 26, 2008
Nepalese Laws And Water Resources
By A.B. Thapa
Very recently our government is seen trying to soften the legal implications of the Clause 126 of the constitution that have proven to be hard nut to crack for many multinational companies who had been trying their best to make fortune by trading in our water resources with India. Government has called upon even the outsiders to send their views on this matter. However, it can hardly be denied that we should be extremely careful in our attempts to find solutions to water resources related problems that concern big private hydropower developers or else we would be playing into the hands of some of those multinationals like the ENRON who are able to evade the stringent regulatory laws and cause worldwide chaos undermining the prestige of the Worldís most powerful country, the USA.
The Clause 126 of the Constitution has been hailed by all quarters in Nepal as the most important provision that is helping to safeguard the vital national interest of our country. In the past, the misinterpretation of the Clause 126 of our Constitution had placed the Government in a most embarrassing position. Our government was virtually forced to annul the bilateral agreement with the Government of India about the Tanakpur barrage after the Supreme Court granted injunction against the Government's interpretation of the Clause 126 of the Constitution.
It is a well known fact to everybody that the total benefit accruable from each of the large storage projects such as the Kosi, Karnali, West Seti, Pancheshwor etc is far in excess of the need of our country. Whenever we embark on implementation of any of these projects, the sharing of benefits automatically takes place. It is completely a different matter whether such sharing of benefits takes place deliberately or it happens unintentionally. We already have bitter past experience of Tanakpur barrage agreement. Government mistake was not condoned by the Supreme Court even though it was not a deliberate action. Now many people who are highly critical of governmentís laisser-faire policy are even seen bringing accusation against the government of deliberately trying to circumvent the Clause 126 of the Constitution by planting a middleman (private company) between the two governments. There is a need to seek the opinion of legal experts on this matter. It is very important to find out whether such policy can be considered acceptable or it could even be a treason apart from being in breach of the Clause 126 of the Constitution. It is quite surprising that there is not any mention in the water resources strategy report, which has been recently prepared, about the Clause 126 of the constitution that serves as the mandatory guidelines for the development of large water resources projects.
Why Are We Frightened By Clause 126?
The Clause 126 of the Constitution requires that there should be broad consensus in the country on the issues relating to our countryís water resources development that also involves our neighbouring country. It hardly needs to be explained that such need to seek national consensus helps to insure that the implementation of any particular project is in the interest of our country. Ultimately such provision in the Constitution compels us to conduct extensive studies to justify the decision to implement any big water resources project. This consideration alone could be a strong justification in having the Clause 126 in the Constitution in its present form and thus any attempt to temper it with various types of explanations or interpretations is indeed uncalled for. We all have afresh in our mind the sad incidence that took place recently in our parliament. At that time the Deputy. Prime Minister was prevented by angry parliamentarians from making speech to justify the decision to defer the award of the giant Karnali project to a private developer until more exploratory studies are made. Many parliamentarians were adamant to bring pressure to bear on the government to award the giant Karnali project to the multinational company ENRON virtually blindfolded regardless of consequences.. It is not the only event in the past when we had been extremely reckless in handling our major water resources. We had in the past almost forfeited our right to ownership of our main rivers. It is explained below how it happened.
The Kosi & Gandak Treaties of 1950s
After the introduction of democracy in 1951 Nepal had signed two treaties with India on water resources in 1950s. They are the Kosi Treaty signed in 1954 and the Gandak Treaty signed in 1959. Soon after their signing Nepal realized that both these treaties were detrimental to Nepal's interest. Particularly the Gandak Treaty was the most harmful. The Article 9 of the Gandak Treaty that curtailed Nepal's water right is presented below:
"His Majesty's Government will continue to have the right to withdraw for irrigation or any other purpose from the river or its tributaries in Nepal such supplies of water as may be required by them from time to time and His Majesty's Government agrees that they shall not exercise this right in such manner as is likely, in the opinion of the parties hereto, prejudicially to affect the water requirements of the Project( it is the Gandak Irrigation Project) as set out in the schedule annexed hereto."
The monthly water requirements provided in the schedule were either very close or exceeded the river flows baring few months of the monsoon season. This treaty would have virtually ended the future prospect for irrigation development in the Gandak Basin within Nepalese territory.
Revised Gandak & Kosi Treaties
The Kosi and Gandak Treaties were binding upon Nepal. The Vienna Convention on the Law of Treaties states that every treaty in force is binding upon the parties to it and must be performed by them in good faith. It requires the consent of both the signatories for changes and amendments unless there is a special provision for it in the treaty. Nepal succeeded in convincing India that both the treaties should be amended to protect Nepal's vital interest. Nepal should be grateful to India for their consent to revise those treaties.
The Gandak Treaty was revised on 30th April, 1964. The Article 9 of the revised treaty is presented below:
"His Majesty's Government will continue to have the right to withdraw for irrigation or any other purposes from the river or its tributaries in Nepal such supplies of water as may be required by them from time to time in the valley. For transvalley uses of Gandak waters separate agreements between His Majesty's Government and the Government of India will be entered into for the uses of water in the months of February to April."
The revised treaty is a big improvement over the previous one. This treaty has reestablished Nepal's full right to draw water for irrigation or any other purposes in the large valleys which are many in number in the Gandak basin. Similarly, the three Terai districts on the west of the Gandak river can also be brought under year round irrigation even without transvalley conveyance system. Thus a new agreement with India might not be required in future.
The Kosi Treaty was revised on 19th December, 1966. Nepal's full right over the Kosi river has been established in the revised treaty. The Article 4 ( i ) of the Treaty related with the water rights has been presented below:
"HMG shall have every right to withdraw for irrigation and for any other purpose in Nepal water from the Kosi river and from the Sun-Kosi river or within the Kosi basin from any other tributaries of the Kosi river as may be required from time to time. The Union ( it indicates India ) shall have the right to regulate all the balance of supplies in the Kosi river at the barrage site thus available from time to time and to generate power in the Eastern Canal."
Proposed Interpretation of Clause 126
It is stated in our Constitution that the strict provision of ratification would apply to sharing of natural resources that would have long lasting, extensive and serious impact. Government is now proposing to reinterpretate the meaning of the Clause 126 in its own way so that the strict procedure of ratification could be waived in all cases barring few projects. Ministry of Water Resources is proposing to interpretatre that the strict provision would apply only in case if the project exceeds the following limits.
The installed capacity of the power station that exceeds 1000 MW. however, it has not been explained at which capacity factor. The number of people being displaced exceeding 10,000.etc.
We Should Be Serious
It might require a great deal of consultations to make sure whether Water Resources Ministry is the appropriate institution to be entrusted the task of interpreting the Constitution of the country. However, it can be said that the requirement to apply the strict ratification provision would be automatically waived for almost all the big water resources projects in our country perhaps with the exception of the Kosi, Karnali and Pancheshwor projects if the Clause 126 of the Constitution is interpretated as proposed by the Government We should take this issue very seriously. It would be our biggest blunder if we tried to take hasty decision.. Even the medium sized water resources projects could have long lasting, extensive and serious impact in relationship between the two neighbouring countries. Let us take few cases. The Sutlez is a very small river by comparison with the rivers like the Kosi. Average annual flow of the Kosi is about 50 billion cubic meters whereas such flow of the Sutlez is only about 20 billion cubic meters. The contentious Upper Bari Doab Canal drawing water from the Sutlez river had brought India and Pakistan to the brink of war in 1940s. Similarly the ratification of the Columbia river projects treaty between the USA and Canada dragged on for several years despite the facts that those projects involved a total storage volume of mere 18 billion cubic meters compared to 39 billion cubic meters in case of the Karnali, and moreover the US Presidents John Kennedy and Lyndon Johnson from the US side and the Prime Minister L. Pearson from the Canadian side were themselves directly involved in finalization of the Treaty. So we should not try to find ways to enter into deals with our neighbouring countries without broad national consensus. It would not be difficult to come to such national consensus if the project is in the interest of the country. Moreover the Clause 126 is helping to protect us from being played into the hands of ruthless multinationals.
Very recently our government is seen trying to soften the legal implications of the Clause 126 of the constitution that have proven to be hard nut to crack for many multinational companies who had been trying their best to make fortune by trading in our water resources with India. Government has called upon even the outsiders to send their views on this matter. However, it can hardly be denied that we should be extremely careful in our attempts to find solutions to water resources related problems that concern big private hydropower developers or else we would be playing into the hands of some of those multinationals like the ENRON who are able to evade the stringent regulatory laws and cause worldwide chaos undermining the prestige of the Worldís most powerful country, the USA.
The Clause 126 of the Constitution has been hailed by all quarters in Nepal as the most important provision that is helping to safeguard the vital national interest of our country. In the past, the misinterpretation of the Clause 126 of our Constitution had placed the Government in a most embarrassing position. Our government was virtually forced to annul the bilateral agreement with the Government of India about the Tanakpur barrage after the Supreme Court granted injunction against the Government's interpretation of the Clause 126 of the Constitution.
It is a well known fact to everybody that the total benefit accruable from each of the large storage projects such as the Kosi, Karnali, West Seti, Pancheshwor etc is far in excess of the need of our country. Whenever we embark on implementation of any of these projects, the sharing of benefits automatically takes place. It is completely a different matter whether such sharing of benefits takes place deliberately or it happens unintentionally. We already have bitter past experience of Tanakpur barrage agreement. Government mistake was not condoned by the Supreme Court even though it was not a deliberate action. Now many people who are highly critical of governmentís laisser-faire policy are even seen bringing accusation against the government of deliberately trying to circumvent the Clause 126 of the Constitution by planting a middleman (private company) between the two governments. There is a need to seek the opinion of legal experts on this matter. It is very important to find out whether such policy can be considered acceptable or it could even be a treason apart from being in breach of the Clause 126 of the Constitution. It is quite surprising that there is not any mention in the water resources strategy report, which has been recently prepared, about the Clause 126 of the constitution that serves as the mandatory guidelines for the development of large water resources projects.
Why Are We Frightened By Clause 126?
The Clause 126 of the Constitution requires that there should be broad consensus in the country on the issues relating to our countryís water resources development that also involves our neighbouring country. It hardly needs to be explained that such need to seek national consensus helps to insure that the implementation of any particular project is in the interest of our country. Ultimately such provision in the Constitution compels us to conduct extensive studies to justify the decision to implement any big water resources project. This consideration alone could be a strong justification in having the Clause 126 in the Constitution in its present form and thus any attempt to temper it with various types of explanations or interpretations is indeed uncalled for. We all have afresh in our mind the sad incidence that took place recently in our parliament. At that time the Deputy. Prime Minister was prevented by angry parliamentarians from making speech to justify the decision to defer the award of the giant Karnali project to a private developer until more exploratory studies are made. Many parliamentarians were adamant to bring pressure to bear on the government to award the giant Karnali project to the multinational company ENRON virtually blindfolded regardless of consequences.. It is not the only event in the past when we had been extremely reckless in handling our major water resources. We had in the past almost forfeited our right to ownership of our main rivers. It is explained below how it happened.
The Kosi & Gandak Treaties of 1950s
After the introduction of democracy in 1951 Nepal had signed two treaties with India on water resources in 1950s. They are the Kosi Treaty signed in 1954 and the Gandak Treaty signed in 1959. Soon after their signing Nepal realized that both these treaties were detrimental to Nepal's interest. Particularly the Gandak Treaty was the most harmful. The Article 9 of the Gandak Treaty that curtailed Nepal's water right is presented below:
"His Majesty's Government will continue to have the right to withdraw for irrigation or any other purpose from the river or its tributaries in Nepal such supplies of water as may be required by them from time to time and His Majesty's Government agrees that they shall not exercise this right in such manner as is likely, in the opinion of the parties hereto, prejudicially to affect the water requirements of the Project( it is the Gandak Irrigation Project) as set out in the schedule annexed hereto."
The monthly water requirements provided in the schedule were either very close or exceeded the river flows baring few months of the monsoon season. This treaty would have virtually ended the future prospect for irrigation development in the Gandak Basin within Nepalese territory.
Revised Gandak & Kosi Treaties
The Kosi and Gandak Treaties were binding upon Nepal. The Vienna Convention on the Law of Treaties states that every treaty in force is binding upon the parties to it and must be performed by them in good faith. It requires the consent of both the signatories for changes and amendments unless there is a special provision for it in the treaty. Nepal succeeded in convincing India that both the treaties should be amended to protect Nepal's vital interest. Nepal should be grateful to India for their consent to revise those treaties.
The Gandak Treaty was revised on 30th April, 1964. The Article 9 of the revised treaty is presented below:
"His Majesty's Government will continue to have the right to withdraw for irrigation or any other purposes from the river or its tributaries in Nepal such supplies of water as may be required by them from time to time in the valley. For transvalley uses of Gandak waters separate agreements between His Majesty's Government and the Government of India will be entered into for the uses of water in the months of February to April."
The revised treaty is a big improvement over the previous one. This treaty has reestablished Nepal's full right to draw water for irrigation or any other purposes in the large valleys which are many in number in the Gandak basin. Similarly, the three Terai districts on the west of the Gandak river can also be brought under year round irrigation even without transvalley conveyance system. Thus a new agreement with India might not be required in future.
The Kosi Treaty was revised on 19th December, 1966. Nepal's full right over the Kosi river has been established in the revised treaty. The Article 4 ( i ) of the Treaty related with the water rights has been presented below:
"HMG shall have every right to withdraw for irrigation and for any other purpose in Nepal water from the Kosi river and from the Sun-Kosi river or within the Kosi basin from any other tributaries of the Kosi river as may be required from time to time. The Union ( it indicates India ) shall have the right to regulate all the balance of supplies in the Kosi river at the barrage site thus available from time to time and to generate power in the Eastern Canal."
Proposed Interpretation of Clause 126
It is stated in our Constitution that the strict provision of ratification would apply to sharing of natural resources that would have long lasting, extensive and serious impact. Government is now proposing to reinterpretate the meaning of the Clause 126 in its own way so that the strict procedure of ratification could be waived in all cases barring few projects. Ministry of Water Resources is proposing to interpretatre that the strict provision would apply only in case if the project exceeds the following limits.
The installed capacity of the power station that exceeds 1000 MW. however, it has not been explained at which capacity factor. The number of people being displaced exceeding 10,000.etc.
We Should Be Serious
It might require a great deal of consultations to make sure whether Water Resources Ministry is the appropriate institution to be entrusted the task of interpreting the Constitution of the country. However, it can be said that the requirement to apply the strict ratification provision would be automatically waived for almost all the big water resources projects in our country perhaps with the exception of the Kosi, Karnali and Pancheshwor projects if the Clause 126 of the Constitution is interpretated as proposed by the Government We should take this issue very seriously. It would be our biggest blunder if we tried to take hasty decision.. Even the medium sized water resources projects could have long lasting, extensive and serious impact in relationship between the two neighbouring countries. Let us take few cases. The Sutlez is a very small river by comparison with the rivers like the Kosi. Average annual flow of the Kosi is about 50 billion cubic meters whereas such flow of the Sutlez is only about 20 billion cubic meters. The contentious Upper Bari Doab Canal drawing water from the Sutlez river had brought India and Pakistan to the brink of war in 1940s. Similarly the ratification of the Columbia river projects treaty between the USA and Canada dragged on for several years despite the facts that those projects involved a total storage volume of mere 18 billion cubic meters compared to 39 billion cubic meters in case of the Karnali, and moreover the US Presidents John Kennedy and Lyndon Johnson from the US side and the Prime Minister L. Pearson from the Canadian side were themselves directly involved in finalization of the Treaty. So we should not try to find ways to enter into deals with our neighbouring countries without broad national consensus. It would not be difficult to come to such national consensus if the project is in the interest of the country. Moreover the Clause 126 is helping to protect us from being played into the hands of ruthless multinationals.
Friday, April 25, 2008
The biggest loser of polls in Nepal is India
The Nepalese people have given their mandate for the change during constituent assembly polls. The biggest loser has been India - By Prakash A. Raj
The results of polls for constitutional assembly in Nepal held on April 10th have shown the CPN-M Party winning half the seats in 240 out of 601 seats for which direct elections were held. About 42% of seats or 330 seats will be elected on the basis of proportional representation and counting is going on for this purpose. The Maoists are well ahead of other parties in this as well. It is possible that the Maoists may emerge with a majority of the total seats. The Nepalese people were promised participation in constitutional assembly polls as early as 1951 but were always denied this opportunity. The voters in Nepal were disenchanted with monarchy and mainstream political parties such as Nepali Congress and CPN (UML) and decided to give the Maoists a chance. However these elections were unlike any elections previously held in Nepal. These elections were not for Parliament under an existing constitution but for an assembly to write a new constitution. There was also involvement of the United Nations (UN Mission in Nepal called UNMIN) and election observers from many different countries including the former American President Jimmy Carter and his Carter Center. This particular election could be said to have more legitimacy than the previous ones.
The wrong policies followed by the Indian Government are responsible for this state of affairs.
It may be remembered that the many of the Maoist leaders lived in India during the decade long insurgency. When the Nepali governments reminded the Indians about this the reply from the Indian side was “we’ll take action if we’re told where they are”. This was made possible in view of open border between the two countries. When this scribe asked the then Indian Ambassador Shyam Saran whether the open border between the two countries would be regularized as any international border I remember him replying “You have to ask the people living near the border”.
The 12 Point Accord signed between the SPA (Seven Party Alliance) and the Maoists was brokered by India and was signed in New Delhi presumably with advice and consent of the Indian Government. The main agenda of Jana Andolan 2 in April 2006 was the 12 Point Accord. This led to King Gyanendra restoring Parliament dissolved in 2002 on the advice of Prime Minister Deuba. The restored Parliament declared Nepal to be a secular state and drastically reduced powers of monarchy. A Comprehensive Peace Agreement signed in November 2006 led to formation of Interim Constitution and Interim Parliament which declared Nepal to be a secular federal republic which would be ratified in the first meeting of constituent assembly. It is likely to happen within a month after all the results of the proportional seats are known. The outcome is a foregone conclusion. Nepal will then be declared a republic officially.
The presence of UNMIN and observers from the world over including former President Carter of the United States led to erosion of Indian influence in Nepal. Maoist Prachanda has said he wanted Nepal’s relations with India and China to be equidistant. Indian Ambassador Shyam Saran had said in the past years about linkage between Maoists in Nepal and Naxalites in India. On the other hand Ambassador Shiva Shankar Mukerji has said after the election results that no evidence was found about such linkage. The Chinese had maintained cordial relations with monarchs in Nepal as it was during King Mahendra’s rule that the agreement for construction of road linking Kathmandu with the Chinese border at Kodari was signed. There were protests from India during that time. King Birendra and his entire family were assassinated in June 2001 less than a month after the agreement for construction of second road from Kathmandu to Rasuwa in the northwest was signed. It is quite reasonable to expect that the Maoists will establish closer ties with China after Nepal would be declared a republic. The Chinese had considered the monarchy in Nepal less likely to be influenced by India and would probably find the Maoists as more dependable ally. Almost all of Midwestern and Far Western Nepal have voted for the Maoists in the recently held polls. It’s only four hours drive from Mahendranagar to Delhi. There is only eighteen kilometers of Indian territory separating Nepal from Bangladesh which links northeastern India including Assam. Will a Maoist led Government in Nepal take into account security interests of India?
The question of integration of Nepali Army and Maoist PLA will be raised in the near future. Nepali Army has indicated that it will follow the command of elected government of Nepal unlike in the past. How would the 90,000 strong Nepal Army, which will integrate ideologically indoctrinated Maoist army, impact India’s security? How would the security of the Gangetic Plains and the states of UP and Bihar be affected by new developments in Nepal remains to be seen. The Naxalite movement in Andhra Pradesh, Chhatisgarh, Orissa and Bihar has become so serious that the Indian Prime Minister Manmohan Singh described it as the most serious security problem for India. Perhaps the Nepali Maoists could influence the Indian Naxalites to join mainstream politics in India as they did in Nepal. However India already has a constitution since 1950 drafted by a constituent assembly elected by its people and is also a federal and secular country which didn’t stop Naxalites from being active. The Nepalese people have given their mandate for the change during constituent assembly polls. The biggest loser has been India. One of the main architect of India’s loss has been Indian Ambassador Shiva Shankar Mukerji who is being rewarded by being appointed the Indian High Commissioner in London.
Thursday, April 10, 2008
History in the making
Nepal is voting for Constituent Assembly election today. The history has repeated after 58 years, from 2007 BS (1990 AD) the country has for the first time used its people's mandate to write the himalayan country's new constitution.
But the question is can it break free the semi-colonization of India or not ? If it can not break free from the semi-colonization from India, the whole effort of the people will be wasted. Now the country needs to come out of the cocoon of the Indian colonization and be a free, sovereign, united, peaceful, prosperous and republic Nepal.
Lets defeat the expansionist India, hail the united Nepal.
But the question is can it break free the semi-colonization of India or not ? If it can not break free from the semi-colonization from India, the whole effort of the people will be wasted. Now the country needs to come out of the cocoon of the Indian colonization and be a free, sovereign, united, peaceful, prosperous and republic Nepal.
Lets defeat the expansionist India, hail the united Nepal.
Tuesday, April 8, 2008
The CA election is going to take place
Thanks to Dr Amit Kumar, finally the election of Constituent Assembly is going to happen on April 10. PM Girija Prasad Koirala when handed over the kidney kumar many in Nepal didnot understand why he did so. But he had then said that India has promised to help neutralize the Terai armed groups that were operating with the active support of Indian SSB and other political parties.
The central Indian governmenthas finally controlled the armed Terai groups creating law and order problem in Nepal that are operating form the Indian soil. India doesnot want Nepal to let others use Nepali soil against India but India gives all arms and ammunitions and monetary and moral suport for the Terai armed groups to creat security problem in Nepal. Why? Why not any international community ask India to stop it?
The RAW operating in Nepal from the base of The Himalayan Times has given the New Delhi a green signal that the Nepali Congress will get the majority and there is no harm in holding elections.
Finally, the election will take place on April 10.
The central Indian governmenthas finally controlled the armed Terai groups creating law and order problem in Nepal that are operating form the Indian soil. India doesnot want Nepal to let others use Nepali soil against India but India gives all arms and ammunitions and monetary and moral suport for the Terai armed groups to creat security problem in Nepal. Why? Why not any international community ask India to stop it?
The RAW operating in Nepal from the base of The Himalayan Times has given the New Delhi a green signal that the Nepali Congress will get the majority and there is no harm in holding elections.
Finally, the election will take place on April 10.
Friday, April 4, 2008
RAW in Nepal in journalist disguise in The Himalayan Times
RAW has sent its agents in Nepal as Journalist. Many of them are working in The Himalayan Times and some are working in the Kantipur also. Most of the staff in The Himalayan Times, even the editorial staff and reporters are Indian. And same is the situation in Kantipur. But Press Council, Federation of Nepalese Journalist and Ministry of Communication and Information department they are mute, blind and pretends that they do not see and hear anything.
Bishnu Nisthuri and Rajendra Dahal and Sree Acharya are paid by the RAW for not raising the issue of foreign national working as a journalists and editorial staff. There is a new editor to show the people in The Himalayan Times but he is also a RAW agent and works under the direct command of RAW operators Nathan and Dhrub, both have married in nepal to stay here safe. The other Indian editorial staff, RAW agents, have married in Nepal for their safety.
Bishnu Nisthuri and Rajendra Dahal and Sree Acharya are paid by the RAW for not raising the issue of foreign national working as a journalists and editorial staff. There is a new editor to show the people in The Himalayan Times but he is also a RAW agent and works under the direct command of RAW operators Nathan and Dhrub, both have married in nepal to stay here safe. The other Indian editorial staff, RAW agents, have married in Nepal for their safety.
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