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The Jeff Cumberbatch Column – On Nearing Fifty… (i)

Jeff Cumberbatch - New Chairman of the FTC

Jeff Cumberbatch – New Chairman of the FTC

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate

MUSINGS: On nearing fifty… (i)

10/18/2015
By Jeff Cumberbatch

[…]

As Barbados readies itself to celebrate the 49th anniversary, and thereby to enter its fiftieth year, of sovereign statehood at the end of next month, it is appropriate for us to conduct a self-assessment of its journey in all respects so far and to prepare for the next fifty years; despite the fatalistic certainty of those few who proclaim the imminent end-of-days and despite the fact that we are not a people ordinarily given to planning anything beyond a five-year period at most.

In the circumstances, this essay commences a non-sequential series of critical observations on Barbados as it is now and of those reforms that might be contemplated adequately to confront the challenges that lie ahead of us. Of course, given the nature of my alleged expertise, this examination will focus mainly on those legal issues encompassing governance, social relations and the resolution of disputes.

Concerning this last, a decision delivered last Thursday by our apical court, the Caribbean Court of Justice, that treated an assortment of matters touching our judicial system provides as good a starting point for this analysis as any other.

While the decision provides a useful forensic examination of technical legal issues such as the doctrine of proprietary estoppel, rights of pre-emption, the enforceability of contracts, unjust enrichment and the award of costs, thus providing ample material for the undergraduate syllabus in Law, their Lordships also took some time out to comment on less arcane and, perhaps, more populist matters such as the inordinate delays in the judicial resolution of disputes locally and the requirement of judicial self-recusal on the basis of apparent bias.

While the latter consideration is not an immediate national concern and more likely to be of immediate interest to the prurient, the text of the judgment does reveal, as it was termed by Saunders J, “a sorry affair” in this regard.

The matter of delay is much more integral to national development, especially if we are seeking to project and maintain our reputation as the ideal jurisdiction in which to effect commercial investment. The dilatory resolution of disputes scarcely comports with such a proud boast.

What makes last Thursday’s strictures even more chastening is that this is not the first, nor the second nor, indeed, the third occasion on which our highest court has had to make such an observation. As noted in the leading judgment of President Byron, this dispute had commenced some 17 years earlier, winding its way through the court of first instance and the Court of Appeal for seven years in each instance, including a five year delay in the delivery of judgment by the trial judge and a more than six year period between the filing of the appeal and the hearing in the court above.

Byron P was not sparing in his comments – “This type of delay imposes hardship on the litigants. This is a case where the hardship is obvious. The delay also reflects adversely on the reputation and credibility of the civil justice system as a whole, and reinforces the negative images which the public can have of the way judges and lawyers perform their roles…The unfortunate frequency of our lament suggests that the problem is systemic…”

And at paragraph 69 of the judgment he delineated the various occasions on which the court had earlier commented adversely on local delay in the administration of justice. One example should suffice. As many as ten years ago, de la Bastide P (as he then was) wrote, “We would be failing in our duty if we did not express our strong disapproval of judicial delays of this order. They deny parties the access to justice to which they are entitled and undermine public confidence in the administration of justice…”

As the learned former President notes, and as borne out by the epigraph to today’s column, the civic entitlement of the litigant to a speedy resolution of a legal dispute is of hoary vintage. Indeed, it is even a constitutionally guaranteed right of the citizen. According to section 18(8) of our supreme law, where relevant, “… where proceedings for such a determination [of the existence of any civil right or obligation] are instituted by any person before such court…the case shall be given a fair hearing within a reasonable time…”

Even a member of the local judiciary has had cause to highlight the phenomenon. In July 2014, then Justice of Appeal Peter Williams, commenting on the scenario of an accused that had served seven years in prison without ever having his appeal against sentence determined, observed that the law “does not countenance the lack of resources, systematic delays or existing court backlogs as exculpating the State from its constitutional and human rights obligations. The executive authority of Barbados therefore has an inescapable duty to organise and supervise its judicial system so that the fundamental constitutional right of the individual to a hearing within a reasonable time is not infringed…”

Having recognised that there is a seemingly intractable problem in satisfying this guarantee, at least currently, the logical next step should be intelligently to seek to identify the source (s) of the difficulty and to take effective measures to eliminate it (them). A most enlightening discussion recently with a member of the Utter Bar (Queen’s Counsel) persuades me that the matter is a rather complex one that will necessitate an elemental adjustment of mind-sets and a sea-change in functional relations between the Bench, Bar and the Registry. He argues quite cogently that the current state of affairs is owed principally to a sorry cocktail of the partisan politicisation of the system on more occasions than one; an enervating lack of trust between the major players; and the prevailing economic crunch that prevents adequate financial investment by the state in the justice system.

Given the fundamental nature of the matters he identifies as causative, it must be accepted that the description of the issue as probably “systemic” by Byron P may not be too far off the mark. It should be a urgent concern of the state that the matter is receiving such uninspiring notices so frequently from its highest court, apart from causing it to be in contravention of its constitutional undertaking as argued above by Peter Williams JA.

After all, potential investors are legally advised as a matter of course and I suspect that few would be willing to close their eyes and ears to the probability that a legal dispute involving substantial sums in a contemplated jurisdiction might not be too speedily resolved.

To be continued…

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250 Comments on “The Jeff Cumberbatch Column – On Nearing Fifty… (i)”

  1. Colonel Buggy October 21, 2015 at 6:24 PM #

    The Attorney General has recently assured all Barbadians and visitors that ‘the message” that should be put out there is that Barbados is a safe place, as he will be later driving himself, without police protection to a Karaoke session in a St Michael district.
    But the United States Embassy in Bridgetown is saying differently ,to its staff and citizens , in its recent advisory on crime in Barbados.
    Lets hope that Washington does not follow suit.
    We are still in the ‘We have no gangs in Barbados mode.

    Like

  2. Gabriel October 21, 2015 at 10:10 PM #

    Colonel
    You forgot the boast at Seawell airport placed there by the enthusiatic Peter Morgan…”We do not have a drug problem in Barbados”…..and as you said followed by the denial of gangs by none less than a superintendent of police,a Dem supporter,now a member of the Police Service Commission that sent the Commissioner of Police on administrative leave 2 years ago.

    Like

  3. Simple Simon October 22, 2015 at 1:21 AM #

    @Colonel Buggy October 21, 2015 at 6:24 PM “But the United States Embassy in Bridgetown is saying differently ,to its staff and citizens , in its recent advisory on crime in Barbados.”

    http://travel.state.gov/content/passports/en/alertswarnings.html

    Here is the list of travel warnings issued by the U.S. State Department from October 2014 to October 2015. Please note that no travel alerts nor warnings have been issued for any place in the English speaking Caribbean during that 13 month period.

    Like

  4. pieceuhderockyeahright October 22, 2015 at 3:29 AM #

    @ Simple Simon

    That site is not the most current intelligence briefing and is maintained by regular government staff who are invariably lax.

    https://www.osac.gov/pages/ContentReportDetails.aspx?cid=18403

    The above site feeds into more real time analysis AND RESPONSE

    That site states

    “The U.S. Embassy to Barbados and the Eastern Caribbean alerts U.S. citizens to an ongoing issue relating to criminal activity in Barbados. Police are reporting that assailants have been lying in wait in the areas of Pine East West Blvd and Pine North South Blvd to gain access to cars stopped by red lights or as the flow of traffic stops, and steal valuables in the car.

    The Embassy has instructed its staff to be alert to this risk, and to be vigilant of surroundings, especially when driving at night. To help mitigate the risk of this happening to you, keep your car doors locked and your windows up at all times. Do not place personal belongings and valuables in plain sight where they can be easily reached; consider stowing all possessions in your trunk or on the floor of the back seat.”

    You cannot believe everything you read but do try to ensure that everything is plural and not singular single source

    Like

  5. David October 22, 2015 at 3:45 AM #

    We continue to operate in denial, reminiscent to the 70s and 80s with the rise of gangs and the minibus culture. We have to leverage the fact we are an educated people by doing!

    Like

  6. Well Well & Consequences October 22, 2015 at 6:45 AM #

    They had to put out that warning, the Embassy, dudes are waiting by the Pine East West Road stop lights and pulling open car doors and robbing the occupants who are stopped at the lights or in the line of traffic.

    Like

  7. David October 22, 2015 at 7:28 AM #

    It is not the East West but the North South.

    Like

  8. Well Well & Consequences October 22, 2015 at 7:41 AM #

    Thanks David, I only just glimpsed the email

    Like

  9. Zoe October 22, 2015 at 10:21 AM #

    A critique of the racist claims of the Black Hebrew Israelites and other Black racists.
    The Crayola Box Doctrine
    By Pastor G. Reckart

    Refuting Black Racism & The Crayola Box Doctrine.

    What is an Israelite?

    An Israelite is a descendant of Jacob the grandson of Abraham (Abraham, Isaac, & Jacob). Jacob’s name was changed into Israel (see Genesis 32:28, 35:10). The descendants of Jacob/Israel were called the children of Jacob and the children of Israel (Gen 32:32 and 2Kings 17:34).

    Israelites were of the seedline of Shem and the Genealogy is set forth clearly in Genesis 10:22-31. We can trace the Semites in the seedline to the Syrians and to Abraham the founding father of the nation of Israel. The ethnic and racial composition of Israel is Syrian. This fact was to be confessed concerning Jacob in Deuteronomy 26:5:

    “And thou shalt speak and say before the LORD thy God, A Syrian ready to perish was my father, and he went down into Egypt, and sojourned there with a few, and became there a nation, great, mighty, and populous.”

    A Syrian ready to perish, identifies the skin color of Jacob and all Israelites as they went down into Egypt and a Black nation. As to skin color and bodily features there became a racial and or ethnic difference between the Syrians and the Black descendants of Ham or his sons Cush (Ethiopia), Mizraim (Egypt), Phut (Libya), and Canaan (first occupants of the land of Israel).

    This rules out all the Black races of Africa as being of the Semite race stock of Abraham and Israel via the Syrian people. All the Blacks of Africa are from the Hamatic lineage and they are not Semites.

    There is a distinct color of skin difference between a Syrian and those of the Hamatic races. Compare the Black-Hamatic African race on the left and the white-light tan-Semite-Syrian race on the right.

    The Israelites descended from the Syrian race stock of Shem. They were not a Black people. This said, the mingling of the races is a known fact. Even the nation of Israel mingled with other nations. But, did that make them African Black? Does it mean all Blacks can lay claim to being a Hebrew Israelite because there was intermarriage between the Syrian White-tans and African Blacks?

    Obviously, a natural Israelite has in him or her a Jewish bloodline back to Jacob and Syria. They additionally have some connection to one of the 12 tribes.

    This refutes the claim by Black Hebrew Israelites that original Israelites were Black people. It also refutes the fact that because of their Black skin color and wool-like hair, all African Blacks are automatically Jews and Israelites.

    If Abraham, Isaac, and Jacob were Syrian, then they did not have wool like hair. They were not a Black people. And they most certainly were not African. Abraham was not a Black man, nor were Isaac or Jacob Black men.

    When Abraham sent his servant to get a wife for Isaac he did not send him to Africa. He sent him back to the land of Syria. There he found Rebekah the daughter of Bethuel. Bethuel is called a Syrian:

    “And Isaac was forty years old when he took Rebekah to wife, the daughter of Bethuel the Syrian of Padan-aram, the sister of Laban the Syrian” (Genesis 25:20).
    When Jacob the son of Isaac fled from Isaac and Rebekah where did he go? Did he go to Africa or Syria? He fled into Padan-aram into Syrian and to the house of Laban the Syrian. There he took two wives and two concubines, all of the White-tan-Syrian skin color. The sons of Jacob by these wifes and concubines did not produce a Black nation. The original Hebrews were then not Black at all but White-tan (light brown of which brown freckles continue to prove the genealogy). Blacks do not have freckles unless there is a White or Brown bloodline in the genealogy somewhere in the past.

    How then “could” there be Black Israelites if the Israel Syrian original was White-tan or brown?

    A note here in the union of Abraham and Hagar the Black Egyptian girl. The son Ishmael was a mixture of Syrian (White-tan) and African (Black). This produced a tribe called the Ishmaelites.

    They were not a Black tribe. They did not live in Africa. They were not a White-tan tribe. They were of the same color as the later “mixt” multitude that came out of Egypt called “Erebs or Arabs.” This is why the descendants of the Ishmaelites are the same color as the Arabs. This confuses these nations and peoples because they share the same skin color but their ancestors are different.

    This however does not make the Ishmaelites a part of Israel. Nor does it make them Israelites in the inheritance seedline of the biblical Hebrews. The Hebrews are not just a race of people by color of skin, they are a monotheistic religion. Even Syrians, the native race stock of Abraham are not counted as Hebrews because of a racial connection.

    This cuts hard against those claiming to be Black Israel Hebrews and they are trinitarians, pagans, and reject the Gospel as preached by Jesus and his Apostles. A gospel which is not racism based as found among Black Hebrew Israelites. http://www.jesus-messiah.com

    Like

  10. Zoe October 22, 2015 at 10:43 AM #

    Backward interpolating racism into the Gospel and the history of Israel has only one purpose and that is to make Israel a Black people.

    It is not only false and wrong, it is perversion of the Bible. There is no reason to pervert the Bible to make Jews BLACK, BROWN, WHITE, or any other color. We can follow any mixture of Israel with other nations and easily show a distinction of color when there is one.

    The first mixture appears to come when the sons of Jacob married daughters of the land of Canaan. Since there were several different race nations in the region there is no way to determine what color they were.

    But this we know, Israel as a result of these marriages did not become a Black nation. It remained a Syrian color people and because of this the Israelites had to confess in Egypt among the Black Hamatic people that their skin color came from Jacob and the Syrian nation. They had to confess they were Syrians not Africans.

    The second mixture appears when Joseph took an Egyptian African wife names Asenath (Genesis 41:45, 50).

    Two children were born of this union, Manasseh and Ephraim. Here we certainly have Black and White-tan mixed. There is no biblical support that these two sons married Egyptian Black women and produced two tribes. Those descended from Manasseh and Ephraim were with Moses when he came up out of Egypt.

    These two groups were not among the later “mixt multitude” that refused to abide in the Covenant of God with Israel at Mount Horeb. This said and confessed, these tribes were not African Black and to claim the mixture made them African Black and not rather a continuation of the Syrian bloodline of the Semites, is falsehood.

    The seedline is counted in this respect through the male. In later centuries the descendants of these two tribes mingled with White and Tan races of the other tribes (there is no record the descendants had additional encounters of Black mixture).

    We would have either a dark brown people, or if mixed with the lighter tan Syrian stock, then a much lighter skinned people. I find it interesting that in reference to the skin color of the tribe of Ephraim we have a Scripture that seems to identify skin color:

    “Ephraim, he hath mixed himself among the people; Ephraim is a cake not turned” (Hosea 7:8).

    Here a race mixture is certainly indicated. The Prophet described the tribe skin color and compared it to a cake not turned. I will compare this to a pancake. The batter is white (plain flour) or light brown (whole wheat). You pour it on the griddle. It fries on one side and then you flip it to brown it on the other side. A pancake when fried is light brown in any case on both sides. It is NEVER BLACK! Now Hosea said he was a cake “NOT TURNED.” This indicates he is half and half. He is part brown (African lineage) and part white (Syrian lineage).

    There is another comparison needing to be made. If we desire to know more of the skin color of the ancient Israelites, we need look no further then the Tabernacle. Inside of this holy edifice there are 12 testimonies to the nation of Israel. There are 12 loaves of unleavened bread sitting on a table called shewbread. Now what color is this shewbread if made according to the directions given by Moses to represent the flesh and seed of all Israel?

    “And thou shalt take fine flour, and bake twelve cakes thereof: two tenth deals shall be in one cake (Leviticus 24:5). http://www.jesus-messiah.com

    Like

  11. Zoe October 22, 2015 at 11:09 AM #

    The POINT made in the above two posts, is not to defend any COLOUR, but the TRUTH of the various mixture of ‘Colours’ that constitute who the Jews of ‘Israel’ are!!

    Now, the present day Nation of Israel, re-birthed in May, 1948, after TWO THOUSAND years of dispersion throughout the World; is a clear ‘Mixture’ of colours, but, certainly NOT a Black race, or a White Race, as can be seen and observed!

    Secondly, and most importantly, Almighty God, who swore, He would re-gather the Jews of Ancient Israel, back to their Ancient homeland, which He did, using the UN and others, a literal miracle of RE-BIRTHING a Nation, would NEVER have done this, IF, the true Jews of the ancient Nation of Israel were/are BLACK, as argued by some Blacks, here on BU and else where!!

    I want to stress, again, I am NOT arguing or defending any ‘Colour’ but, rather TRUTH; as TRUTH does NOT have any COLOUR!!!

    Like

  12. pieceuhderockyeahright October 22, 2015 at 11:40 AM #

    Now I know that De Ingrunt Word going say that this is not “vexation to the spirit” and is going to wonder why people seemingly seized with the “Word” would want to leh go a few BRASSBOWL CUSSWORDS

    So as soon as the topic moves back to “centreline”, here comes this evil spirit to spew non-related offal into the mix.

    3 times!!

    So I am either led to believe that

    1] they are genuinely driven by the subject matter

    2] An agent of the nameless Lord of the Air or

    3] and even more nefarious consideration, Someone who does not like Jeff Cumberbatch or is a dear friend of someone who does not think that this topic proposed by Jeff should be ventilated properly and has a vested interest in ensuring that the topic is not aired

    ““This type of delay imposes hardship on the litigants. This is a case where the hardship is obvious. The delay also reflects adversely on the reputation and credibility of the civil justice system as a whole, and reinforces the negative images which the public can have of the way judges and lawyers perform their roles…The unfortunate frequency of our lament suggests that the problem is systemic…”

    Who stands to benefit if this is not aired?

    Like Donkey Dem want banning

    “Purposed Obscuration”

    Like

  13. Georgie Porgie October 22, 2015 at 12:43 PM #

    piece
    clearly your rant is a non sequitur!
    Zoe’s post does not stop folk from submitting loads of bovine excremnt on “the civil justice system as a whole’
    why should the man be banned?
    your rant does not address the “the civil justice system as a whole” either
    POT CALLING KETTLE BLACK

    you have not explained why/how Zoe’s post is one by an “evil spirit” or how/why it ” spews non-related offal into the mix.”

    you dont say that when the devil on BU himself posts definite evil!

    now shut up and go to the corner!

    Like

  14. Donna October 22, 2015 at 1:01 PM #

    Pieces,

    Actually, I think Zoe honestly believes that the Christ’s return is imminent and so none of what we are discussing really matters.

    Like

  15. Hants October 22, 2015 at 1:46 PM #

    @ David and Well Well,

    “dudes are waiting by the Pine East West Road stop lights and pulling open car doors and robbing the occupants”

    Why don’t the Police send undercover cops to deal with this problem?

    @Pieceuhderockyearight,

    It is good for BU to have “bulk”. That is why I do not want David to ban Zoe and other contributors.

    I no longer read any biblical / exegesis/ on BU but it is easy for me to scroll past because I have a touch screen.

    To besides I like liming in de Diaspora Corner. lol

    Like

  16. Georgie Porgie October 22, 2015 at 1:58 PM #

    MANY ESCHATOLOGISTS believe that the Christ’s return is imminent …………AND WITH GOOD REASON

    Like

  17. Georgie Porgie October 22, 2015 at 2:02 PM #

    HANTS
    DID YOU WATCH ANY OF THE CRICKET LAST NIGHT

    WILLOW VEERED OFF TO ENG V PAK AFTER 90 MINS

    BOYS BOWLED WELL
    HOPING FOR CENTURIES BY JASON AND BRAFF

    Like

  18. Donna October 22, 2015 at 2:03 PM #

    GP,

    Then we’d better not waste time on BU. What say you?

    Like

  19. Georgie Porgie October 22, 2015 at 2:13 PM #

    BECAUSE OF THE CRAP BY PIECE ABOVE AND OTHERS ABOVE I WILL NOW DO A ZOE CUT AND PASTE LOL

    It is true that Jesus in His Olivet Discourse said that no on would know the day or the hour of his rturn . But two breaths before Jesus said that no man knows the day and the hour, He stated that “this generation shall not pass till all these things be fulfilled” (Matthew 24:34). So while He said that no man knows the day and hour, He spoke of a generation that will know.
    WHICH GENERATION IS THAT?

    The answer to this question is simple. We, of this generation, will definitely know the time and the season. Jesus said so in Matthew 24:34. “Verily I say unto you, This generation shall not pass, till all these things be fulfilled.” “This generation” refers specifically to the people who live to see the signs of the endtimes that He describes in the chapter, including the still-future abomination of desolation.

    Paul confirms this teaching. He wrote in I Thessalonians 5:1, “But of the times and the seasons, brethren, ye have no need that I write unto you. For yourselves know perfectly that the day of the Lord so cometh as a thief in the night.” In verse 4, he goes on to say, “But ye, brethren, are not in darkness that that day should overtake you as a thief.” Paul is telling us specifically that we will know the times and the seasons. If we will watch, we will see the day coming.

    Is this a conflict in scripture? In Acts 1:6, Jesus says, “It is not for you to know the times or the seasons.” But, in I Thessalonians 5:1 Paul says that we will. Of course, there is no conflict! It is obvious that Jesus was speaking to a First Century audience in Acts 1:6-7, not to us!

    So we have now answered the “times and seasons question.” What about the “day and hour” question? When Jesus said that no man knows the day and hour of the Lord’s coming, does this also apply to our generation?
    Paul Said we Will Know the Day
    Here’s another perspective. I Thessalonians chapter 5 teaches us that the day of the Lord will come as a thief in the night. Matthew 24:42-43 relates the same story. It also says that the Lord will come as a thief in the night, and that the goodman of the house will not know what hour the thief will come.

    The thief is clearly representative of Jesus Christ. But what does the goodman represent? Whoever the goodman symbolizes, the passage says that he will not know the hour of Christ’s return. For example, if the goodman represents the church, then the church will not know the hour of the Lord’s coming. It would be that simple. So let’s look at the context.
    Question: Is the goodman the church?
    Answer: No! The goodman of the house clearly represents unbelievers, not believers! He is not portrayed as a Bible-believer, but rather, he was living in darkness, and was not ready for the Lord’s coming. This passage teaches that it is the unbelievers who will not know the hour of the Lord’s coming. This conclusion is verified by I Thessalonians 5:4-5. There, it states that the only people who will not know the day of the Lord’s coming are the people living in darkness. But you, saint of God, are not living in darkness. You are a child of light, and the day of the Lord shall not overtake you as a thief!

    Unbelievers will not know the hour of His coming. Does the Bible say that the church won’t know the hour of His coming as well? No. The fact is, it seems to indicate the opposite! The Lord will not overtake His children of light as a thief in the night. According to these passages, the church will know the hour.

    Let’s keep studying the scriptures. We will know the generation, and we will know the times and seasons. And as the time draws nearer, perhaps we will also come to know the day and hour!
    By Eddie Sax

    WUNNAH COULD READ OR DONT READ UM

    Liked by 1 person

  20. pieceuhderockyeahright October 22, 2015 at 2:17 PM #

    I voting fuh you Georgie Porgie DOAN MIND DE UDDERS LOL

    Like

  21. Donna October 22, 2015 at 2:30 PM #

    No sweat ’cause I just here waiting fuh He anyhow.

    Like

  22. Georgie Porgie October 22, 2015 at 2:32 PM #

    PIECE YOUR VOTE WONT HELP ME MAN

    Like

  23. Hants October 22, 2015 at 2:50 PM #

    @ GP, I WILL NOT WATCH WEST INDIES TEST CRICKET AS LONG AS THE CURRENT WICB

    BOARD IS IN CHARGE. RATHER WATCH VIDEOS OF PAST TEST MATCHES WITH QUALITY PLAYERS.

    Like

  24. Well Well & Consequences October 22, 2015 at 4:11 PM #

    Hants……the police should know that while searching for the missing senior citizens and other matters that need thier attention, they should also be eliminating the threat, for the embassy to be sending out warnings, itmeans one of their own was attacked.

    They insist on being totally dependent on tourism, they better be playing their part.

    Like

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  1. The Jeff Cumberbatch Column – On Nearing Fifty (ii) | Barbados Underground - November 21, 2015

    […] to local matters as we approach the commencement of our 50th year of national sovereignty. The first essay, published a few weeks ago, treated the issue of unduly delayed justice in our courts, a matter on […]

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