The Danger of Frequent Constitutional Amendment

Dr Maria Cahill

The Irish Constitution has been amended 31 times in 82 years, and 8 times in the last 10 years. In total, there have been 43 proposals to amend the Constitution, 12 of which have been put forward in the last 10 years. The proposed referendum on 24th May 2019 already creates history for being the third referendum polling day within 365 days.

This post is not concerned with the substance of any of those amendments or proposals. In fact, it will work on the assumption that all of those proposals – even those that were rejected by a majority of voters – would have improved the quality of our constitutional bargain.

The argument here is that even if the proposals are solid and would advance the common good, there are dangers as well as advantages inherent in frequent constitutional amendment.

The advantages of having a constitutional amendment procedure which can be activated relatively easily are well-canvassed: they allow that constitutional provisions that are no longer fit-for-purpose can be adapted, they prevent the constitution from becoming delegitimised, they allow constitutional change to happen lawfully through established and orderly processes rather than requiring revolution and replacement, and, in our unusual system where popular referenda are held every time we seek to amend the constitution, the amendment procedure allows the people to feel a sense of ownership over the enterprise of constitutional self-government.

Those advantages accrue even if the particular proposal is a particularly bad idea.

But just as there are advantages to proposing constitutional amendments, even if the proposals aren’t good in themselves, so too there are dangers to proposing constitutional amendments even if the proposals aren’t bad in themselves. Those dangers are not so frequently considered.

ConstitutionsThe biggest danger is simply that we forget what the purpose of a constitution is. Identifying the purpose(s) of constitutions admittedly is a difficult job even for constitutional scholars, but when we do engage in such discussions, those conversations almost always include a reference to a particular part of Homer’s Odyssey. On his journey home after long adventures, Captain Odysseus, aka Ulysses, knows that his course takes the ship past a famous island. The beautiful goddess Circe has warned Ulysses that many ships have been lured to this particular island by the beguiling sounds of the sirens coming from the island and that all the sailors who follow the music to the island meet their deaths. To help Ulysses avoid this disastrous fate, Circe advises him to put wax in the ears of the sailors so that they do not hear the music and, if Odysseus himself wants to listen, to have them bind his hands and feet with ropes so that he cannot direct them to the island. Odysseus first makes the sailors to swear an oath that they will not unbind him no matter how much, under the influence of the music, he implores. Then he deafens their ears with the wax and they tie him to the mast. And they all sail safely past the island.

The moral traditionally taken from the story is that, in order to be truly free, we must be prepared to sacrifice instant gratification for the fulfilment of a bigger purpose. It is also a blunt reminder that the desire for instant gratification can be so overwhelming that mutual accountability mechanisms are a very smart way to proceed.

For constitutional theorists (for example, Jon Elster, Stephen Holmes and Philip Pettit), this story is also a metaphor for constitutionalism: Odysseus cannot make the choice that he wants to make in the instant that he hears the music because he had previously consciously chosen not to retain that irresponsible choice as one of his available options. In the same way, so the analogy goes, a political community that sets the course of the nation’s destiny by adopting a written constitution which establishes certain specific institutions endowed with certain specific powers and governed by certain specific rules necessarily constrains its capacity to gratify immediate desires, knowingly and willingly limiting its freedom-in-the-moment for a deeper freedom-through-time.

Constitutions, they say, aren’t supposed to be a mirror image of everything we would like to do in any given moment, or even everything we think we should be able to do in any given moment. They are supposed to be the rules that sometimes require us to sacrifice now in order to retain the possibility of achieving a higher goal. They are supposed to be the rules that we sometimes rail against, that we sometimes long to be released from, but that deep down we know speak to us of what’s best in us as well as what’s best for us. (That’s not to say that constitutional rules always do fulfil this purpose, but that that’s the idea of a constitution.)

Frequent constitutional amendment gives the contrary impression that if there is anything in the constitution that we don’t like right now, we just change it. In this view, a constitution is less a foundational agreement that holds the hopes and dreams of a nation and more a temporary contract which can be revised and re-negotiated every few months or years, a bit like an EU treaty that concretises certain rules but doesn’t grab anyone’s heart.

If anything and everything about the basic bargain of a nation can be changed on a whim – and in the Irish constitutional order, unusually, there are no restrictions whatsoever on what can be amended – there is at least the risk that this creates a deep instability in the legal system, because this attitude to constitutionalism defeats the purpose of having a constitution in the first place. It therefore undermines not only the particular constitution being amended, but the legitimacy of this and any future constitution as a foundational agreement, and eventually even the rule of law itself in that political community. Allied to the instability created in the legal system, it can also create insecurity in the political community: frequent disagreements about the content of the basic commitment unsettle any relationship. This danger, however, can be mitigated if the changes are not terribly significant and/or there is near consensus in favour of or against the proposal.

A lot about constitutions is rhetorical: we mythologise ‘constitutional moments’, ‘founding fathers’ and the apparently-infallible ‘People’; we selectively remember the circumstances in which the constitution was forged; and we celebrate anniversaries with pomp and circumstance. All this rhetoric can seem quite empty, especially to someone who has expert knowledge of the historical events, but it is nonetheless important because it constitutes the founding myth of the nation, and acts as a focal point for the generation and deepening of political community. Retelling the founding myth has some value therefore even when we haven’t got all the facts straight. For the same reason, maintaining the Constitution as a foundational agreement is important even if some of the provisions are imperfect, and changing the rules too often, even if all the changes are beneficial, carries inherent risks that we cannot simply ignore.

With all of this in mind, justifications of amendment proposals should be unsatisfactory to us if they purport to offer only (minor) improvements to the constitutional settlement without counting the wider constitutional cost. And questions can legitimately be raised of any proposal which does not purport to substantially improve the constitutional settlement and/or which is unreflective about the risk that too-frequent amendment proposals compromise the project of constitutionalism and the integrity of the political community.

Dr Maria Cahill lectures in constitutional law at the School of Law at University College Cork.

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Call for Papers: “Sovereignty, Populism and Constitutional Politics”

School of Law, UCC and Constitution Project @ UCC

in association with

The British and Irish Chapter of the International Society of Public Law (ICON-S)

30-31 August 2019

Keynote Speaker: Professor Gráinne de Burca, New York University

The Irish Constitution has always had a unique reverence for popular sovereignty, as evidenced by the fact that it requires that every single proposed amendment of the Constitution be approved by the people in popular referendum. This feature of Irish constitutionalism has many corollaries:

  • it gives the Irish people a practical ownership over their constitution;
  • it puts a great deal of pressure on the referendum process;
  • it emphasises popular democracy, perhaps occasionally at the expense of a sharper focus on representative democracy and the role of parliament;
  • it adds an extra dimension to citizenship;
  • it impacts on Ireland’s engagement in international relations, due to the necessity to authorise the ratification of certain treaties by way of referendum; and
  • it calls upon the courts to supervise the referendum process and give effect to the intention of the electorate.

The amendment process has been invoked relatively frequently. 40 proposed amendments have been put to referendum since 1937, of which 28 were approved. This frequency has noticeably increased, with 12 referendums in the last 10 years (compared with just 8 in the first 40 years of the Constitution’s existence). A substantial proportion of the Constitution has been amended, with some provisions amended repeatedly or even radically. As a result, the Constitution is perhaps less a foundational covenant which endures through time than a conditional contract that can be and is revised and re-negotiated at regular intervals.

All of this means that popular sovereignty is built in to the Irish constitutional experience in a way that is very rare from a comparative perspective. This popular involvement in constitutional change is comparatively unusual and may have helped to protect the Irish constitutional order from populist critiques of elite politics. Its unique advantages and pitfalls are worth considering and showcasing through this conference and proposed edited collection.

The conference organisers invite you to submit a paper or panel that relates to one of the themes below and considers the Irish Constitution in its broadest sense, whether from doctrinal, theoretical, comparative, European, international or interdisciplinary perspectives:

Foundational constitutionalism, including: the constitution as foundational agreement; benefits and risks of frequent amendment; comparative perspectives on such benefits and risks.

The referendum process, including: regulation of campaigns (funding, broadcasting, etc); the Referendum Commission; illegality during campaigns; judicial review of referenda results; case studies on specific referenda.

Popular sovereignty, including: theory of popular sovereignty; primacy of popular sovereignty in Irish constitutionalism; comparative perspectives on the Irish amendment process; link between popular sovereignty and state sovereignty through the referenda on international/EU treaties.

Parliamentary democracy, including: the principle of representation; government control of parliament; the ‘principles and policies’ test.

History of popular sovereignty, including: centenary of 1919 Declaration of Independence; popular sovereignty in 1922 and 1937 Constitutions; state sovereignty as popular sovereignty in 1922 and 1937 Constitutions.

Constitutional dialogue, including: judicial populism; judicial deference to parliament; parliamentary silence; parliamentary engagement with the Constitution; active citizenship and hard cases; the ‘private Attorney General’.

Constitutional reform, including: the work of the Constitutional Convention and Citizens’ Assembly; the work of Oireachtas Committees; visions for future constitutional reform.

Populism, including: the challenge of populism for the Irish constitutional order; the extent to which the constitutional order does or should facilitate popular participation in governance.

Abstracts of 300 words (max.) should be submitted by 26 April 2019 to iconsgbie@gmail.com. Participation decisions will be made by mid-late May.

Selected papers will be invited for publication in an edited collection (subject to peer review). We are close to securing a publishing arrangement and details will be confirmed in due course. Participants wishing to be considered for inclusion in this collection should submit a draft version of their paper by 23 August 2019. Once the selection has been made, the deadline for submission of final drafts will be 1 November 2019. Where this deadline is not met, the slot in the collection will be offered to a reserve paper.

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Why the 1919 Declaration of Independence Matters

Dr Maria Cahill

DeclarationThe 1919 Declaration of Independence is almost always overshadowed, whether by the more poetic and celebrated 1916 Proclamation of Independence or by the mere fact that on the day the Declaration was made, there was a parliament in Ireland for the first time in 120 years.

It is not altogether surprising, then, that Monday’s centenary celebrations focussed more on the anniversary of the First Dáil and the beginning of the War of Independence. It is not altogether surprising that although a commemorative video was made in 2016 in which the descendants 1916 signatories re-read the Proclamation, the same tribute was not made in respect of the relatives of the 27 parliamentarians who were present in the Dáil to make the Declaration (let alone 39 others who were absent for reasons of imprisonment and forced exile and not to mention the remaining 39 who were absent for other reasons).

Still, the 1919 Declaration of Independence, supported by the Message to the Free Nations of the World and the Democratic Programme, is worthy of at least as much attention as the 1916 Proclamation, if only for the reason that it is the declaration of independence that, accompanied by a more successful guerrilla campaign, secured enough legal and political freedom for Ireland that She could procure the rest herself.

Four features of the Declaration stand out.

First, the 1919 Declaration does what every declaration of independence has to do: it paradoxically and unilaterally asserts political and legal freedom on the basis that that freedom already inheres in the people in whose name the declaration is made. The 1919 Declaration does this in a particularly pithy way, opening with the words “the Irish people is by right a free people” (a statement clearly contradicted by the blunt reality that Ireland was being governed from London) and going on to insist that the Irish people “never ceased to repudiate” their freedom (a debatable point: parliaments in Kilkenny in 1366 and Drogheda in 1494 acknowledged the primacy of English law in Ireland, although without a democratic mandate and to no great effect). Being already a free people, at least according to the Declaration, the Irish people affirms this freedom through the declaration, resolving “to secure and maintain its complete independence”. This is the necessary illegality and the logical paradox that takes place at the founding of every state: you assert the authority that you want to have on the basis of an assumption that you are already entitled to that authority.

VoteThe second feature is that the Declaration anchors itself in the political mandate provided to the Irish parliamentarians by means of the December 1918 General Election and uses that mandate as the moral authority which allows them, “in the name of the Irish nation, [to] ratify the establishment of the Irish Republic”. The strength of this political mandate is juxtaposed both with the moral and political illegitimacy of British rule which “is and always has been based on force and fraud and maintained by military occupation against the declared will of the people” and also with the more spontaneous actions of the leaders of the Easter Rising in 1916, who acted “on behalf of the Irish people” but without a direct mandate, or even widespread popular support. (Of course, a sceptical reading of the Declaration might question how an election that was called by the British government and run according to English laws could become the basis for a political mandate for Irish freedom.)

The third feature, which is characteristic of declarations of independence from around the world, is that the declaration promises a new dawn, in which the common good will be promoted, justice restored and defence secured. In order to achieve these ambitions, the Declaration requires the evacuation of English garrisons, the cessation of foreign government, but most importantly, the primacy of the Irish parliament. The declaration is unequivocal in its insistence that “the elected Representatives of the Irish people alone have power to make laws binding on the people of Ireland, and that the Irish Parliament is the only Parliament to which that people will give its allegiance”. This uncompromising position is later reiterated in Article 12 of the 1922 Constitution (“The sole and exclusive power of making laws for the peace, order and good government of the Irish Free State is vested in the Oireachtas.”) and Article 15 of the 1937 Constitution (“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas; no other legislative authority has power to make laws for the State.”) These words cannot now be interpreted literally using the spirit of patriotic fervour which inspired them since that interpretation is belied by the political reality that parliament is institutionally weak and does not have exclusive legislative authority.

Fourthly, the 1919 Declaration of Independence, again in a manner that is typical for declarations of independence generally, appeals to higher authorities, viz., the international community and Almighty God. By securing recognition for the newly-emerging state from the international community, the hope is that the British will be intimidated by the understanding that denying Irish independence will cost them the goodwill of other nations. It was for this reason that the 1919 Declaration was issued in French, as well as Irish and English, and accompanied by the Message to the Free Nations (also issued in French, Irish and English) which ends with the stinging exhortation to the nations of the world “to uphold [Ireland’s] national claim to complete independence as an Irish Republic against the arrogant pretensions of England founded in fraud and sustained only by an overwhelming military occupation” so that “the civilised world having judged between English wrong and Irish right may guarantee to Ireland its permanent support for the maintenance of her national independence”.

It is in the way that they appeal to God that the essential difference between the 1916 and 1919 texts is illuminated. The 1916 Proclamation ends by placing the cause of freedom “under the protection of the Most High God” – a pretty standard invocation – but it goes on to pray not for success or victory or minimal loss of life, rather that “no one who serves that cause will dishonour it by cowardice”. It extols the need that Ireland’s children must be willing to “sacrifice themselves” so that the nation can live and “prove itself worthy of the august destiny to which it is called.” The final paragraph of the 1919 Declaration begins with a similar invocation, in the line “we humbly commit our destiny to Almighty God who gave our fathers the courage and determination to persevere through long centuries of ruthless tyranny”, but ends with the more confident assertion that the blessing sought is to guide “this the last stage of the struggle” for Ireland’s freedom. The expectation this time is that Ireland’s freedom will be safely secured.

Dr Maria Cahill is a lecturer in constitutional law at University College Cork.

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Referendums, referendums … but what are they all about?

Dr Conor O’Mahony

We love a good referendum here in Ireland. We have had two in 2018, and 12 in the last 10 years; and now it seems certain that we will have several more in 2019.

The Government has committed to holding two referendums in May (coinciding with the local and European elections): one to reduce the constitutionally-prescribed four year waiting period for divorce, and another on voting rights in presidential elections for Irish citizens living abroad. A further proposal on public control of water services is under active consideration, possibly for the same day.

The proposed referendums seem unlikely to be as momentous and divisive as recent polls on abortion and marriage equality; but under the surface, there are quite a few issues to be resolved before they can proceed.

For example, should the divorce amendment reduce the waiting period stipulated in Article 41 to (e.g.) two years, or should it give the Oireachtas full discretion to set the qualifying period of separation?

If past history has taught us anything, it is that entrenched constitutional provisions are not the place for detailed and prescriptive rules on matters of social policy. A Constitution should state broad principles, while leaving points of detail to the Oireachtas.

Including the four year waiting period in the divorce amendment in 1995 was a political manoeuvre designed to ensure the passage of an amendment that had been rejected nine years earlier. By imposing a high hurdle for prospective divorcees, fears of the floodgates were allayed. But divorce is now an accepted and uncontroversial part of Irish society, and divorce rates remain low by international standards.

There is broad support for reducing the period; but it makes no sense to replace it with one that might require further referendums in the future. If the people were willing to trust the Oireachtas to legislate on the far more sensitive issue of abortion, they are surely willing to extend this trust to the discrete issue of the waiting period for divorce.

On the issue of water services, the issue is more technical in nature. Advocates of the referendum propose a wording guaranteeing that the public water system “remains in public ownership and management”. The Attorney General is concerned that the reference to “ownership” might create difficulties for private water schemes or for future public-private partnership arrangements. Whether an alternative proposal that focuses on “control” rather than ownership will be sufficient to allay concerns about potential privatisation of water services remains to be seen. (I discussed this issue with Eoin Ó Broin TD on Morning Ireland on November 21.)

Other proposals are in the background. It has long been agreed that there should be a referendum on removing the reference in the Constitution to the life of the woman in the home; but the poll was deferred when politicians failed to reach agreement on whether to simply delete this provision or to replace it with a gender-neutral version.

This week, the Oireachtas Justice Committee put forward two alternative options: one was an alternative wording for the provision, and the other was to refer the issue to the Citizens’ Assembly for further debate on the form that any alternative wording should take.

The latter is a rather feeble recommendation. The issue was previously debated in full by the predecessor to the Citizens’ Assembly (the Constitutional Convention), and this was followed by a detailed report by a Task Force on implementing the Convention’s recommendations. It is difficult to see what further discussion at the Assembly would add. The Oireachtas Committee is the body charged with progressing the issue; we saw how a similar Committee managed to formulate a reform proposal on the Eighth Amendment in spite of deep division.

Article 41.2 is offensive to many due to its references to the woman’s “life within the home” and to mothers’ “duties in the home”. But in truth, sexist as it may be in its rhetoric, the provision is a dead letter. It has no tangible impact on law or policy, and it is likely that replacing it with a gender-neutral dead letter would be similarly devoid of concrete impact.

Of course, the exercise would be of symbolic value as a gesture to carers. But there is a danger that a purely symbolic provision might do more harm than good. Constitutional scholar Dylan Lino cogently argues that enacting symbolic provisions with no concrete effect repudiates their constitutional significance and ignores real grievances of excluded groups. Carers may find that a constitutional amendment is a sop to their legitimate demands that changes nothing while offering politicians an “achievement” to hide behind.

At the same time, the possibility of a stronger provision that would allow for an enforceable right to support and resources is unlikely to secure the support of the Oireachtas; and any efforts to include enforceable socio-economic rights in the Constitution should really be considered in the round and not on an ad hoc basis focused on individual rights.

If sexism is the problem with Article 41.2, and the Committee cannot agree on a replacement, there is a quicker and cleaner solution: simply delete it.

Dr Conor O’Mahony is a senior lecturer in the School of Law at University College Cork.

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Irish text of the Proposed Referendum on the 8th Amendment

Dr Seán Ó Conaill

The publication of the wording for the 36th Amendment Bill has started the referendum campaign in earnest.

The English language wording of the bill had been well flagged and, as a result of the outcome of the M -v- Minister for Justice and Equality [2018] IESC 14 judgment, remained largely unchanged from the original announcement made by the Taoiseach in the wake of the decision to hold the referendum. The Irish text was not however available until the Bill was published.

The Irish language and the Constitution

The Irish language text of the Constitution is the authoritative text in the event that there is a conflict found between the English and Irish versions. Although the claim that the Irish text of the Constitution is a mere translation of English text is often made (including in some judgments of the Supreme Court) this claim is without foundation in the face of the evidence. Extensive works of scholarship such as Prof Mícheál Ó Cearúil’s study highlight how the Irish and English texts are not translations of each other and on many occasions the Irish text differs significantly from the English text.

Amendments

The process of drafting amendments to the Constitution is troublesome when it comes to the Irish text. Constitutional amendments by their nature are politically instigated and have their wording signed off by the cabinet and their advisers in the English language only. The Irish wording is usually then subsequently produced as a translation. Although there is some element of consultation with the translators in reality the process is very much English language driven. Translators are presented with an English text which is set in stone and must produce an Irish text which reflects the same legal meaning. English and Irish, like any two languages, cannot ever be translated exactly word for word. There are words in both languages which do not have an exact corresponding word in the other language. English does not have masculine and feminine words as languages such as Irish or French have nor does English have the sort of mutations that are common in Celtic languages. Thus when translating a constitutional amendment translators are faced with a very challenging task.

This task is made all the more difficult by the style of language used in the original Irish text of the Constitution which is often different from both vernacular Irish and the standard legal Irish used in legislation.

I have argued in the past that in the case of amendments it is an absolute absurdity to have the translated text of a wording drafted entirely in English as the authoritative text of the Constitution. That is not to say that we should remove the status of the Irish text as the authoritative text but rather that we should take a different approach to the drafting of amendments. Co-drafting, where both amendment texts are drafted simultaneously by lawyers who speak both languages, is well proven to produce better quality texts in both languages as well as being cheaper than subsequent translation.

The 8th Amendment

The 8th Amendment itself, as an amendment with a complex drafting history, has many interesting aspects to its Irish language text. The most interesting of which is perhaps the use of the term “sa mhéid gur féidir é” which would translate to “as far as possible” whereas the English text uses the expression “as far as practicable”. Such a conflict in wording suggests that the State could be held to a higher standard under the Irish text when it comes to protecting the right to life of the unborn, with “possible” certainly seeming to go much further than “practicable”. Indeed Mr Justice McCarthy noted such divergences in the X Case, before dismissing the divergences on the basis that “[h]istorically the Irish text is a translation of that in English” . In the particular case of the 8th Amendment such an assertion is quite accurate, but Mr Justice McCarthy appears to have missed the point. The Constitution does not make an exception on the grounds that one text is a mere translation of the other; it merely asserts that the text in the Irish language shall prevail in the case of a conflict, be it as a result of a translation or not. For more background on this listen to the excellent Motherfoclóir podcast which features UCC Law and Irish graduate and DCU PhD candidate Gearóidín McEvoy.

The Wording Itself

The wording of both language versions is as follows;

“Provision may be made by law for the regulation of termination of pregnancy”

“Féadfar socrú a dhéanamh le dlí chun foirceannadh toirchis a rialáil”

The first part of the sentence in the Irish text “Féadfar socrú a dhéanamh le dlí” follows established precedent and the same formula of words is to be found in other articles of Constitution to represent “provision maybe be made by law” in the English text. The Irish text of Article 8.3 and 10.3 for example both use the same expression. This element is consistent with the rest of the Constitution and unremarkable.

The real area of interest however is the second part of the proposed amendment “regulation of termination of pregnancy” is presented in the Irish text as “foirceannadh toirchis a rialáil”

The word termination appears once already in the English language version of the Constitution albeit in a totally different context in Article 28.3.3 which concerns the constitutional position when a state of war exists. In the case of Article 28.3.3 the corresponding Irish text is presented as “chuirfear deireadh le” which would translate literally as “put to an end”. The word termination also appears 5 times in the index to Constitution in English but on each occasion the Irish version of the Index text avoids using the word “foirceannadh”. The word foirceannadh does not appear in the Constitution at present. The Irish language legal terms order Téarmaí Dlí offers “foirceannadh” as the Irish version of termination and the word “foirceannadh” has been used extensively in legislation since 1936 but somewhat unhelpfully the word foirceannadh is also presented as the Irish language equivalent of “determination” in the context of a lease.

As is noted above the word “foirceannadh” does not as of yet appear in the Constitution however it did appear in the proposed 12th Amendment in the context of the termination of pregnancy and would have been inserted into the Constitution had the people accepted that proposal.

Pregnancy is presented as “toirchis” eg toircheas in its genitive form and is consistent with its use elsewhere although the word toircheas does not appear in the Constitution at present.

The final phrase of “a rialáil” is again absent from the Irish text of the Constitution with phrases such as “rialú a dhéanamh” usually used in the place of regulation however the difficult construction of the English text and its implications for the genitive form when translated into Irish may have led translators to use this form. The expression “a rialáil” is again commonplace in legislation such as Part 3 of the Charities Act/ An tAcht Carthanas 2009.

Overall the wording of the proposed amendment contained in the Thirty-sixth Amendment of the Constitution Bill 2018 follows the established constitutional and legislative precedent and while no two language texts can be exactly the same it equates well to English text with a few interesting features.

Dr Seán Ó Conaill teaches Dlí Bunreachtúil (Constitutional Law through Irish) at the School of Law at University College Cork.

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