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| Saving The People From ... The People: The strangest aspect of the mass Israeli protests, from a New Zealand perspective, is that the judicial reforms proposed by Benjamin Netanyahu’s government would only confer upon Israel’s parliament, the Knesset, powers which the New Zealand House of Representatives has not only exercised for decades, but which have also been seen, by an overwhelming majority of Kiwi legislators, as critical to the health of New Zealand’s democracy. |
BEGINNING IN LATE JANUARY, Israel has been rocked by a series of massive weekly protests against planned judicial reforms. Concentrated in Tel Aviv, Israel’s former capital and easily its most secular city, these protests have become increasingly disruptive. So much so that the far-right coalition government, led by Benjamin Netanyahu, appears poised to suppress them by force. Political commentators in Israel have begun to speak of the protests as evidence of a fundamental disagreement over the core nature and purpose of the Israeli state. About the only thing both sides can agree on is that Israel cannot survive such deep-seated divisions.
The strangest aspect of the Israeli protests, from a New Zealand perspective, is that the judicial reforms proposed by Netanyahu’s government would only confer upon Israel’s parliament, the Knesset, powers which the New Zealand House of Representatives has not only exercised for decades, but which have also been seen, by an overwhelming majority of Kiwi legislators, as critical to the health of New Zealand’s democracy.
The problem which the judicial reforms proposed by Netanyahu and his far-right colleagues seek to address is the Israeli judiciary’s current power to restrain, or, in extremis, overrule, the actions of both the Israeli Executive and the Knesset. In other words, these reforms seek to confer upon the Knesset what New Zealand’s House of Representatives already possesses – and jealously guards – parliamentary sovereignty. Netanyahu wants the Knesset to become what our House of Representatives already is: the highest court in the land.
What makes this whole constitutional stoush even more interesting, from a Kiwi perspective, are the similarities between New Zealand and Israel. Neither country has a written constitution, preferring to be guided by a set of basic laws and rights. Israel and New Zealand also lack an upper-chamber empowered to initiate, review and delay legislation. This unicameral system gives the legislators of both countries the sole right to make the laws. Both countries also operate under an electoral system of proportional representation– although, to be fair, Israel has a much purer variant of PR than New Zealand’s MMP. Israeli MPs do not represent electorates, all Knesset seats are allocated from party lists. Israel’s representation “threshold” (the share of the popular vote that must be won before seats are allocated) is 1.5 percent, compared to New Zealand’s 5 percent.
Where the two legislatures diverge, however, is over the status of the law conferring fundamental human rights upon their respective citizens. Legislation and/or Executive Orders which contravene Israel’s “Basic Law: Human Dignity and Liberty” may be (and have been) struck down by Israel’s Supreme Court. The author of the “New Zealand Bill of Rights Act”, Labour’s Geoffrey Palmer, wanted New Zealand’s highest court to be invested with similar authority, but so deeply entrenched is the principle of parliamentary sovereignty in this country that he was unable to persuade his colleagues to confer such decisive constitutional powers upon New Zealand’s judges.
Apart from the very obvious objection that unelected judges should not be given the power to overrule the elected representatives of the people, New Zealand legislators’ refusal to countenance judicial intervention can be traced back to two deeply ingrained Kiwi prejudices.
The first is class hostility – a phenomenon intimately bound up with New Zealanders long-standing self-identification as egalitarians. Judges are (rightly) perceived by “ordinary” New Zealanders as being drawn overwhelmingly from the upper-echelons of New Zealand society. The objection to these “posh bastards” overruling a Parliament made up of “ordinary people” like themselves dates all the way back to the Liberal Government of 1891-1912 and its presiding populist master, Richard “King Dick” Seddon. The rise of the Labour Party and the growing parliamentary strength of its working-class caucus only dug the anti-posh prejudice deeper into the nation’s collective political psyche.
The second factor is racial hostility. Repeated attempts by dispossessed Māori Iwi to seek redress through the New Zealand courts, though mostly unsuccessful, planted in the minds of Pakeha legislators the necessity of preserving Parliament’s privileged status vis-à-vis the Judiciary. The idea that the achievements (and the depredations) of the “Settler State” might one day be found wanting by the courts, aroused the most atavistic fears among Pakeha politicians of every ideological persuasion. What had been won by the gun, must never be reclaimed by the gavel.
Just how animated this racial rationale for parliamentary sovereignty remains was demonstrated very forcefully by the House of Representatives’ reaction to the Court of Appeal’s 2004 judgement on the foreshore and seabed. Labour Prime Minister Helen Clark, and her Attorney-General, Margaret Wilson, lost little time in reminding Māori, and the Judiciary, exactly who controls New Zealand.
The bloody circumstances of the State of Israel’s birth in 1948, and the mutually hostile ideological and religious groups that assisted it, encouraged Israel’s legislators to deny their parliamentary opponents the opportunity – albeit at some distant point in the future – to transform their narrow vision of Israel into law. The Basic Law relating to human dignity and liberty was, therefore, to be interpreted and enforced by a highly-qualified and non-partisan Judiciary. That way, no party, or collection of parties, commanding a temporary Knesset majority would be able to legislate their way into a position of permanent dominance.
The wise old Socialist-Zionists who founded Israel were only too aware of how quickly extremist minorities can become proscriptive majorities. They understood that the Israeli Supreme Court’s gavel was their best protection against the extreme Zionists’ legislative guns.
Unsurprisingly, young, well-educated, and increasingly secular Israelis are terrified by the plans of Netanyahu (himself under indictment for corruption by Israel’s courts) and his far-right allies to recreate in Israel the soft authoritarianism perfected by Hungary’s Viktor Orban. They are only too aware that moves to limit the authority and independence of the courts are proof positive that the shift to “illiberal democracy” has begun. The moment the defence of human dignity and liberty is placed in the hands of a temporary parliamentary majority of religious and nationalist extremists, there can be little doubt that neither principle has long to live.
Nor is it any longer an axiom that New Zealand parliamentarians are united in their determination to preserve the House of Representatives as New Zealand’s highest court. With so few MPs now drawn from working-class backgrounds, and so many of them in possession of legal qualifications, the possibility of the House being over-run by passionate, marginalised, justice-seeking populists from the wrong side of the tracks has ceased to be the progressive prospect it used to be. What might such a mob, unconstrained by a written constitution, an upper-house, an interventionist Judiciary, or even a progressive ideology, not descend to?
Members of Parliament who looked down with horror upon the fiery violence unleashed in Parliament Grounds by the great unwashed on 2 March 2022, and contemplating the possibility that people only marginally less extreme could one day constitute a majority in the House of Representatives, might be forgiven for shifting their gaze across Molesworth Street to the Supreme Court building, and whispering: “Why not?”
This essay was originally posted on the Interest.co.nz website on Monday, 13 March 2023.
21 comments:
Israel has no real principled foundation. They thought they had and they've been going on with that but it was a conquest, and an unwise one. Build your house on a swamp and the rot reaches up into your grand palaces of the mind.
However I agree the courts should be subject to democracy, even their psycho version of it addled by original poisons.
"...the fiery violence unleashed in Parliament Grounds by the great unwashed on 2 March 2022, and contemplating the possibility that people only marginally less extreme ..."
I think you'll find, Chris, that the "fiery violence" was not unleashed by the "great unwashed" (as you so superciliously label them), but rather by the New Zealand police. After a couple of weeks of incident-free communal gathering standing in solidarity against the effective suspension of New Zealanders' intrinsic bodily sovereignty, and after a completely restrained protest that represented a legitimate political right of all New Zealanders (as much as an inconvenience and embarrassment as this right was to Jacinda Ardern and her government), it is odd that things went downhill only when Jacinda sent in the shock troops to save her from a situation that had become completely beyond her ability to manage.
I think my observations are adequately confirmed by the fact that so many of the protestors have had their charges dropped due to insufficient evidence of any offence. We all had access to the livestreamed footage (if we wanted to know the truth, that is), and most fair minded people saw what went on and concluded that it was a dark day for the NZ police and the political establishment in general. They came out much the worse as compared to the protestors.
And moreover, on what grounds were the protests and the protestors themselves "extreme" I wonder? Is protesting against the government imposing mandatory medical procedures (whether de facto or de jure) in clear breach of probably the most fundamental human right really considered "extreme" now? If it is, then we are finished as a country who lies to call itself free and open. We hear a lot about who was in the crowd and what their motives were (in almost all cases agenda-driven speculation and insinuation, mind you). Even if we take this argument to the extreme and say that everyone present was a KKK member and a convicted murderer – the composition of the crowd would have had ZERO effect on the argument they were making, which was that the protest was to assert human rights (a rights-assertion that was always a very conspicuous omission from media reports, mind you, clearly because the human rights argument was an airtight one and one that 99.99% of people would agree with if the protest had ever been framed by the media in these terms instead of in irrelevant and/or spurious terms).
Because Magna Carta (generally considered to be the primordial constitutional document in English law) predates the English parliament, and because New Zealand adopted the basic UK constitutional arrangements intact at our nation's formation, it is plausible to argue that New Zealand's parliament (as well its British equivalent) are not sovereign at all, being for the reason given subject to the provisions of Magna Carta, which predates them all and still has constitutional effect. Now, the parliaments in both countries naturally prefer that their publics are completely unaware of and oblivious to this reality, because it gives them the (apparent) right to do as they wish under the principle of Parliamentary Sovereignty.
What exactly prevents our parliament from doing anything it wishes, so long as it has the numbers to do so? Nothing, really, when all is said and done. There is no limit to its theoretical power, which makes it omnipotent. After nearly 200 years of parliament behaving itself, along came 2020. The glaring fault in our system was unambiguously exposed during the Covid debacle (remember Covid? It just disappeared from public consciousness at the flick of a switch due to the narrative having become untenable), when parliament gave itself extraordinary powers to declare emergency powers – whenever they themselves see fit to declare such an emergency. What could go wrong here? Well, we've seen what can go wrong when parliament is beyond reproach with nothing to rein it in (notwithstanding a stubborn refusal on the part of people who should know better to even admit something went incredibly wrong).
Magna Carta sought to prevent autocratic tyranny and capricious decrees by an absolute monarch, yet with Parliamentary Sovereignty, this is (in effect) exactly what we get. But we just give it a more comforting label and everyone thinks we've solved the problem of potential tyranny, aka unjust abuse of power. On this analysis, Parliamentary Sovereignty is best understood in practical effect as being Parliamentary Dictatorship, although absent the level of true accountability that accompanies rule by one identifiable ruler in the form of an autocrat.
I think this underestimates the inter-relationship between the parliament and the judiciary in the late 19th century. Just to use two case studies -
William Richmond: He held a number of Cabinet positions between 1856 and 1861. This included Minister of Native Affairs, where he did his best to break down Maori institutions, especially what he saw as the beastly communism of common land ownership. He was deeply racist and felt Maori 'savages'. Shortly after leaving Parliament he became a senior judge and co-wrote with Chief Justice James Prendergast the Wi Parata decision to nullify the Treaty of Waitangi and customary law.
Sir Robert Stout: Twice Premier and amongst the founders of the Liberal Party. 1899, he was appointed Chief Justice of New Zealand, and remained in this position until 1926. The last Chief Justice of New Zealand to have served in the New Zealand Parliament. He was made a Privy Councillor in 1921 and served on the Legislative Council, a political office.
Both case studies were entwined with both political and judicial positions. Their positions on Maori rights differed greatly. A hegemony existed which served the settler society, the distinction between the "posh bastards" of the judiciary and the "ordinary people" of Parliament was certainly blurred as they were often the same people.
"Because Magna Carta (generally considered to be the primordial constitutional document in English law"
Not really. British Parliaments existed before the Magna Carta was just that they weren't called Parliaments. And it only predates Parliament by a year anyway.
The whole idea of Magna Carta being a founding document is a 16th/17th century romanticisation. There's very little about human rights in the Magna Carta, and it was ignored almost from the point of its signing. And what rights were included applied only to the aristocracy/gentry. There's far more in fact about fish weirs on the Thames than there is about human rights.
Now the romanticisation of it is not necessarily a bad idea, because myths have their place in politics. But those who do that, also tend to denigrate the Treaty of Waitangi which has also been romanticised. And that's not a bad idea either.
"mandatory medical procedures (whether de facto or de jure) in clear breach of probably the most fundamental human right "
A number of courts, both national and international have found that mandatory medical procedures are in fact quite legitimate during a pandemic or other medical emergency.
Interesting though, I hadn't actually considered the position of the courts vis-a-vis Parliament – except perhaps to note that the US Supreme Court seems bent on overturning democracy, given its position on so many issues where it's at variance with the majority opinion of the American people. So perhaps we are correct to keep the courts under the authority of Parliament.
Mind you Chris, when's the last time we had a parliament of "ordinary people"? If ever. MPs these days are almost invariably from the class that judges are chosen from seems to me.
During this term Parliament has endorsed the tyrannical COVID regulations as well as the deeply unprincipled theft of community assets without compensation, and the loading of potentially $200 billion of debt onto ratepayers, under 3 Waters. We desperately need more checks and balances, including via the judiciary, to protect the public and their democracy. I have sympathy for those protesting Netanyahu's "reforms".
Guerilla Surgeon
The right ignored by parliament (and legislatures right across the world) vis a vis vaccination policies was bodily sovereignty or bodily integrity. I don't think that there is any more fundamental right than one's being sovereign over one's body. Whether or not person X is vaccinated is completely irrelevant to person Y, who is vaccinated. Nobody has a right to impinge on my (or your) body without my consent – it doesn't matter what the pretext may be (and, although beyond the scope of this comment, the stated pretext completely failed at the level of logic, let alone at the level of virology or immunology).
It's also very important to emphasise that nobody was stopping anyone who wanted to be willingly vaccinated from doing so – they could get as many doses as they liked, and it would have been irrelevant to the recipient what anyone else had or had not done (despite the nonsensical claim that we should get vaccinated "to protect others" – this is a completely illogical proposition).
Crimes against the person (e.g. murder, assault, rape etc.) are ALL predicated on the principle of bodily sovereignty. If we are to believe that someone can be legitimately injected without their full consent (and without being punished for refusal), they how can we also uphold murders, assaults and rapes as being crimes? If we are to be consistent with the principle of bodily sovereignty, we cannot. Does it matter if the murderer or rapist REALLY WANTED to perform those acts, and felt justified to do so? No, that is completely irrelevant. If the victim hasn't consented, then a crime has taken place.
Moreover, in one form or another, all of these crimes have been recognised as crimes for as long as humans have existed in any organised forms of society. The principle has been recognised and applied for millennia, putting it on far sturdier legal foundations than parliament and their legislative powers.
At some point, there needs to be a line that a parliament cannot cross under any circumstance (otherwise, as I've said in another comment they have no restraints whatsoever). They could theoretically murder every second New Zealander and do it legally, so long as they had the numbers in parliament. Ultimately, we have some rights as human beings simply for the fact that we ARE human beings, and therefore, these can never be negated by any parliament, no matter what they deem to be a sufficient pretext. If those rights are completely ignored, then what are reduced to?
Because Magna Carta (generally considered to be the primordial constitutional document in English law) predates the English parliament, and because New Zealand adopted the basic UK constitutional arrangements intact at our nation's formation, it is plausible to argue that New Zealand's parliament (as well its British equivalent) are not sovereign at all, being for the reason given subject to the provisions of Magna Carta, which predates them all and still has constitutional effect. Now, the parliaments in both countries naturally prefer that their publics are completely unaware of and oblivious to this reality, because it gives them the (apparent) right to do as they wish under the principle of Parliamentary Sovereignty.
Um, no.
Parliamentary Sovereignty is a reflection of Who Won the English Civil Wars of 1641-1649 (hint: Parliament), and then the Glorious Coup/Revolution of 1688-1689. That clarified once and for all that the monarch can only operate with Parliamentary approval, and a century or more of Hannoverian dunderheads on the throne did the rest.
Magna Carta was only retrospectively declared important by the people whingeing about Charles I in the mid-seventeenth century, and then adopted via the Whig Historians in the eighteenth.
I don't think New Zealand's Parliamentary Sovereignty system owes itself to class or racial prejudice. It's an inheritance of the all-powerful Parliament of the United Kingdom, as it stood in the mid-nineteenth century ("Parliament can do anything except bind its successors" goes the principle).
The New Zealand commitment to such a system pre-dates the Liberals, and certainly pre-dates the era when the courts became remotely friendly to Maori (c.f. the "simple nullity" of 1870). It was the system that New Zealand became used to - and reflects the simple fact that New Zealand trusts its elected representatives. After all, if we don't like them, we can vote them out in three years. You can't vote out misbehaving judges.
(Meanwhile, anyone who has ever paid attention to the USA realises the sordid history of the courts in enforcing discriminatory measures. American jurisprudence did not start with the Warren Court, and indeed if anything, the era of 1940-1970 is the historical aberration).
"especially what he saw as the beastly communism of common land ownership"
Bollocks. "Communism" as a concept wasn't even postulated until the late 19th century.
What he was possibly concerned about was the integration of maori into a modern world and the common land ownership would be a hindrance to that. And so it has proven to be with the fragmentation of the land making it difficult to utilise effectively and reducing those "owners" to mere rent collectors.
Titled parcels would have been advantageous to those land owners giving a more vested interest in the retention and development of that land.
In my opinion.
Hey Chris,
Michael Laws was a NZ First MP
Listen to him here. I'm on a tablet with a slow holiday park at Mumbai on Whakatipu so can't easily transpose dialoge (slow internet- your gigabyte is almost up) but he is ranting about restrictions on tourism. I would (almost invoke slippery slope - he wants to bring back slavery).
Sir Paul Callaghn (and others) have pointed out: Samsung $300,000/worker; Frontera $500,000; Tourism $40,000.[ something like that.
One lot are living the Life of Rielly in Queenstown while the other lot are being replaced by my Indian taxi driver who works two jobs. He has a wife and kid drives taxi and services rooms.
People rave about India my UK sister and brother in law went there (he has been retired since the 1970's - Cambridge graduate). As Ha Joon Chang argued in 23 Things They Don't Tell You about Capitalism a Swedish bus driver earns 50 times more than a (hypothetical) Indian does. The reason is borders.
https://youtu.be/pygNETDMR9E
"Beastly Communism" is a direct quote from C.W. Richmond.
"Bollocks. "Communism" as a concept wasn't even postulated until the late 19th century."
Bollocks. Its first known use was around 1785 and it was probably in use before then because words don't necessarily just spring out of the ether. Capitalists and colonialists have always hated communal ownership of land because it's "inefficient", and they often use the excuse that the native peoples weren't "using it properly" to take it away from them.
Individual titles made it much, much easier to do this.
Mme... You really don't listen to you. The government HAS the right to to invade your bodily autonomy if it has a good reason. Saving people from dying is usually considered a good reason. What you say is what you think ought to be, not necessarily what is. As I said, courts in various places have decided that it is okay under certain circumstances. I often wonder if the opposition to vaccinations for Covid is because it has what's perceived to be a fairly low death rate.
I sometimes speculate on how high the death rate would have to be before such eejits would get themselves vaccinated. But I'm not that fussed by now. As I may have said before I've grown indifferent to how many of the unvaccinated die. It's the people that they kill, who happened to be immunocompromised or have some other medical problem that makes them vulnerable that I feel sorry for.
Bollocks. "Communism" as a concept wasn't even postulated until the late 19th century.
Marx's Communist Manifesto dates from 1848.
"The real joy of this blog is that it allows some to shop their 'selective knowledge' ...[Gary Peters 13.03.23].
Well Gazza you are certainly full of joy.
Have you been living under a rock GS, unaware of the complete collapse of the covid narrative?
Guerilla Surgeon
"The government HAS the right to to invade your bodily autonomy if it has a good reason. Saving people from dying is usually considered a good reason."
They don't have any right at all to do this. They HAVE DONE IT in fact, but that is only because they completely ignored people's fundamental rights to bodily autonomy. The government cannot breach my bodily autonomy in order to "prevent me from dying" (and BTW, Covid has a negligible mortality rate anyway, ranging from (as I calculated in late 2022), for example 0.00053% for 0-9 years, 0.00753% for 40-49 years, 0.50837 for 70-79 years, and only exceeding 1% once over 80 years of age). I, and millions of others around the world, rationally concluded that I didn’t need or want to be vaccinated – what does that have to do with the government?
https://www.health.govt.nz/covid-19-novel-coronavirus/covid-19-data-and-statistics/covid-19-case-demographics#aug-2021
In reality, on the MOH's own data, Covid is of almost no significant risk to anyone other than very elderly people. But if people wanted to be "saved from dying" then they should have gone out and got vaccinated – quite what this has to do with people who decide not to get vaccinated is unclear. If your own vaccine works, then who cares if others aren't similarly vaxxed?
To claim that "everyone needs to be vaccinated so that we all protect each other" is a completely insane idea. Think about it: if the vaccine doesn't protect the recipient, then it won't protect anyone else either; and if the vaccine does protect the recipient, then there is similarly no need for others to follow suit. In other words, "vaccination to protect others" makes no sense as a matter of logic.
As an analogy to vaccination, if we are all at the beach on a hot sunny day (equivalent to Covid in the common environment), how does an individual protect themselves against sunburn (equivalent to Covid infection)? They put on sunscreen. Does this protect anyone else? No. If the sunscreen will not protect the person who applies it to themselves, will it do anyone else any good? No. And are people allowed to calculate the risk of sunburn, deem it to be an acceptable risk, and thus choose to forego sunscreen? Of course, that is their right.
It is necessarily the case that if the government mandates X, then people are being coerced against their will to do X (otherwise, no mandate would be necessary). Moreover, as I said in my original comment, any New Zealander was perfectly free to go out and get vaccinated. Everyone knew it was available, so it follows that if anyone hadn't taken up the opportunity, they didn't want to.
So "vaccines protect others." No, they do not. This idea that, not only does vaccination prevent our own Covid infection (which has since been shown to be demonstrably false), but it also protects others is completely irrational. If I get vaccinated, it is completely irrelevant to me whether anyone else is.
BTW GS, I guess you've read the Lockdown files from the UK? No? To help get you up to speed, here's the German Health Minister Karl Lauterbach with some impressive back pedaling on the covid response:
"In his role as an advisor to Angela Merkel and prominent TV and Twitter commentator, and then as the country’s health minister, Lauterbach adopted an aggressively pro-lockdown and pro-vaccination stance, claiming that his aim was to vaccinate every single German — through the imposition of mandates, if necessary — in order to achieve so-called “herd immunity”.
Those words are now coming back to haunt Lauterbach."
https://unherd.com/thepost/germanys-health-minister-changes-tune-on-vaccine-injuries/
I’m not and have never heard of this ‘complete collapse of the covid narrative’. In fact the numbers are published on a weekly basis and indicate many people still catch it, get hospitalised from it, die from it, and that those that suffer from it the worst are by and large the unvaccinated. The covid narrative is as it was in the beginning. It is a very serious illness.
The narrative, that draconian lockdowns, masking and the vaccines would prevent contagion, has collapsed Anonymous. See the link above.
The big question, Anonymous, is how much of the narrative and consequent actions were based on proper research, data and expert advise. Not much it would appear. Medsafe’s clinical assessment, and advise to the government in February 2021:
“The duration of the vaccine protection has not been established beyond two months.”
“At this stage, there is limited evidence of protection against severe disease.”
“There is no long term safety follow-up information.”
“Vaccine prevention of asymptomatic infection and disease transmission has not been established.”
On 10 February 2021, Chris Hipkins, Minister for COVID-19 Response, was advised in a briefing paper from Dr Bloomfield about the limited data on disease transmission. Specifically, Hipkins was advised:
"We do not yet have conclusive evidence on the effectiveness of the Pfizer vaccine at preventing or reducing transmission to be confident of the public health value of this vaccination, beyond the individual level. So, unlike testing, which had a clear public health benefit, vaccination at this point in time is expected to reduce risk through a reduction in the likelihood of severity of disease and onward transmission. This may change as more evidence becomes available. However, at this time, mandatory vaccination is unlikely to be a justified limitation of the right to refuse medical treatment under Section 11 of the Bill of Rights Act."
These revelations cast serious doubts over the unjust and unjustified response. An official apology and compensation is in order for those mandated out of their jobs and treated as pariahs.
Cranmer's conclusion: "However there does appear to be serious questions about how the government then represented Medsafe’s clinical evaluation to the public during the vaccine rollout and how this impacted on informed consent and on the legality of the mandates. In particular, it is clear from the documentation that Medsafe and relevant government Ministers knew from very early in the vaccine rollout that it was questionable whether the vaccine would prevent or limit transmission, and furthermore they were advised that having “credible evidence” of transmission reduction was absolutely crucial in the legal justification of any mandate that required vaccination."
https://cranmer.substack.com/p/pfizer-vaccine-approval-in-nz-under
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