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Title: Madagascar Human Rights Practices, 1995 Author: U.S. Department of State Date: March 1996 MADAGASCAR Madagascar's transition from the 16-year authoritarian Socialist rule of Didier Ratsiraka officially ended in 1993 with the fair election of Albert Zafy as President and the selection of Francisque Ravony as Prime Minister by the National Assembly. Under the 1992 Constitution, power is divided between the President, the Prime Minister and his Government, and the National Assembly. A number of institutions provided by the new Constitution, including an upper house (Senate) of the National Assembly had not been established by year's end. However, communal elections, which are a necessary first step toward the creation of the Senate, took place on November 5. Departmental and regional elections, which must also precede a senate election, are scheduled to take place in 1996, although no date had yet been set. Relations between the President and the Prime Minister deteriorated amid charges of corruption and mismanagement of the economy, forcing a realignment of parties in the National Assembly and a national referendum--called by President Zafy--to amend the Constitution. Malagasy voters strongly supported increased presidential powers during the September 17 referendum, which was conducted in a free and fair manner. The Prime Minister and the Council of Ministers resigned in October, opening the way for President Zafy to name Emmanuel Rakotovahiny as Prime Minister, along with a new cabinet. In August the Government increased civilian control over the military through the passage of a new defense law. The law established a new cabinet-level policy body, the High Council of Defense, chaired by the President, and an Interministerial Defense Committee, chaired by the Prime Minister, to carry out the decisions of the High Council. After allowing the forces to shrink gradually, the Government has stabilized the overall size of the military at about 21,000 (13,000 military, 8,000 gendarmes). There were occasional reports that police committed human rights abuses and many reports of abuses by village-level law enforcement groups. The Government has established targets for improved economic management, reduced government expenditures, and increased revenues. Although some of these targets were met, the country's overall economic performance was mixed. Living standards remained extremely low, and purchasing power continued to erode. Per capita gross domestic product was estimated at $230 for 1994. In early 1995, inflation was progressing at an annual rate of 60 percent, but with stricter economic management, including tighter control over the money supply, the inflation rate declined considerably by the end of the year. The economy remains highly dependent on agriculture. Primary commodities such as shrimp, vanilla, and coffee did relatively well, and rice production, the major staple, increased over previous years. Tourism also increased as did manufacturing in the export processing zones. The smuggling of vanilla, gold, precious stones, and cattle continued to be a major concern as did the rise in criminal activity. Unemployment and underemployment also remained serious problems, especially among those under 25, who comprise about 60 percent of the population. The human rights situation remained the same. There was a notable absence of political violence, despite demonstrations and heated political rivalry between supporters of the President and then Prime Minister Ravony. However, there continued to be human rights abuses in the law enforcement and judicial systems. There were occasional reports of police brutality against suspects and detainees as well as instances of arbitrary arrest and detention. Prison conditions are harsh and life threatening, and in some prisons women may experience physical abuse, including rape. The authorities took no actions to relieve the overburdened court system. As a result, suspects continued to be incarcerated for lengthy pretrial periods, often exceeding the maximum penalty for the alleged offense. A magistrates' strike over judicial independence exacerbated this situation. Traditional local law enforcement groups ("dina") carried out their own brand of summary justice. Women continued to face societal discrimination. RESPECT FOR HUMAN RIGHTS Section 1 Respect for the Integrity of the Person, Including Freedom from: a. Political and Other Extrajudicial Killing There were no known political killings by government forces. However, harsh prison conditions resulted in an unknown number of deaths (see Section 1.c.). Also, to combat rising crime village-level dina continued to mete out justice, including summary executions (see Section l.e.). In addition, citizen mobs took summary action against suspected thieves in Antananarivo and elsewhere, resulting in severe injury or death to the suspects. The official investigation into the 1994 beating death of radio journalist Victor Randrianirina, allegedly for his reporting on sapphire smuggling in Madagascar, remained open, but the authorities made no arrests and issued no statements. Similarly, despite commitments by the Government that those responsible for 1991-93 incidents, in which security forces killed or injured unarmed civilians, would be brought to trial, there was visible progress in only one case. The authorities tried in a civilian court the 14 soldiers arrested in April 1993 for alleged involvement in politically motivated violence in Antsiranana; several received prison sentences of varying length while others were acquitted. The Government has not reported on or made arrests in a case involving the deaths of more than 30 demonstrators who were killed by then president Ratsiraka's guards at the Iavoloha palace on August 10, 1991. A formal commission named in 1994 to investigate this incident did not hold hearings during the year. Nor was progress made in the investigation of the March 31, 1992, incident in which soldiers killed six pro-Ratsiraka supporters at the National Forum (Constitutional Convention). b. Disappearance There were no permanent disappearances and no acknowledged cases of unsolved abductions or disappearances. c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment The Constitution provides for the inviolability of the person. However, there were occasional reports of police or other forces mistreating prisoners or detainees. There were also isolated instances of dina- sponsored trials in which torture was used to solicit confessions from criminal suspects. Prison conditions are harsh and life threatening; government officials acknowledge that a serious situation exists. The diet provided is inadequate, and family members must provide or augment inmates' daily food rations. Prisoners without relatives nearby sometimes go for days without food. Each prisoner has on average less than 1 square meter of space. The prison population, estimated at 22,000, suffer a wide range of medical problems that are not routinely treated, including malnutrition, infections, malaria, and tuberculosis. These conditions have resulted in an unknown number of deaths. Women in prison suffer abuses, as do the children who are sometimes confined with them. Gender segregation is not absolute, and there were some reported cases of rape. The Government permits prison visits by the International Committee of the Red Cross (ICRC), religious and charitable organizations, and a Malagasy legal association investigating abuses of pretrial detention. As a result of the access to prisons afforded to the media, a photographic exhibition on prison conditions was held. d. Arbitrary Arrest, Detention, or Exile The Constitution provides for due process for accused persons, but in practice the authorities do not always respect these rights, frequently failing to observe legal safeguards against arbitrary arrest and detention. In particular, excessive pretrial detention of the accused results in the denial of due process. According to the law, a criminal suspect must be charged, bound over, or released within 3 days after arrest. An arrest warrant may be obtained but is not always required. According to the Penal Code, defendants in ordinary criminal cases have the right to be informed of the charges against them, must be charged formally within the specified time frame, and must be allowed access to an attorney. Court appointed counsel is provided for indigents accused of crimes which carry a minimum 5-year jail sentence. Bail may be requested by the accused or by his attorney immediately after arrest, after being formally charged, or during the appeal process, but it is rarely granted at any stage for violent crimes. Approximately 70 percent of the estimated 22,000 prisoners were in pretrial detention. Despite existing legal protections, the average pretrial detention time often exceeds 1 year, and 3 or 4 years of detention is common, even for crimes for which the maximum penalty may be 2 years or less. Prisoners may wait years in prison only to be found not guilty. A Catholic nongovernmental organization (NGO), the Aumonerie Catholique, in conjunction with a lawyers association, intervened on behalf of a number of detainees and won release for 36 persons. Although the law allows prisoners to sue the Government for damages in unlawful detention, it virtually never occurs. By law, persons suspected of activity against the State may be detained incommunicado for 15 days, subject to indefinite extension if considered necessary by the Government; however, this provision is used infrequently. The Government does not use forced exile as a means of political control. e. Denial of Fair Public Trial The 1992 Constitution provides for an independent judiciary; however, implementing legislation to define the rights and responsibilities of the judiciary had not been passed by year's end, due in part to President Zafy's narrow interpretation of the degree of autonomy for the magistracy called for in the Constitution. This controversy led to an effective nationwide magistrates strike starting in January, with the magistrates subsequently providing only the "minimum service" necessary to ensure public security. In February the President convoked an extraconstitutional "National Forum," to debate legal reform. Since the magistrates refused to participate, the Forum was unable to reach consensus, although it did press the National Assembly to vote against greater powers for the judiciary. The strike continued until August. Meanwhile, the National Assembly reviewed draft legislation to define better the responsibilities and powers of the magistracy but deferred action until 1996. Although no precise statistics are available, the magistrates' strike contributed to an increased backlog of cases in an already overcrowded docket. The judiciary has three levels of courts: lower courts for civil and criminal cases carrying limited fines and sentences; the Court of Appeals, which includes a criminal court for cases carrying sentences of 5 years or more; and the Supreme Court. The judiciary also has special courts designed to handle specific kinds of cases (e.g., cattle rustling) under the jurisdiction of the higher courts. The Constitutional High Court is a separate and autonomous body which reviews laws, decrees, and ordinances, and certifies election results. In the absence of reform, the judiciary remained under the aegis of the Ministry of Justice. The lack of internal controls and relatively low salaries for magistrates encourage corruption, although the Government began to address the problem by revising outdated and unevenly apportioned housing allowances. Trials are public, and defendants have the right to an attorney, to be present at the trial, to confront witnesses, and to present evidence. Defendants enjoy a presumption of innocence under the Penal Code. The right of traditional institutions at the village level to take measures to protect property and public order is specified in the 1992 Constitution, as well as in earlier laws. The traditional dina handle civil matters within and between villages and also operate in some urban areas. In practice, the dina are increasingly being used in criminal cases because of rising crime, the physical isolation of many rural areas, and practical inadequacies of the formal police and judicial systems. The Government began an effort in late 1995 to combat crime and insecurity in isolated rural regions by reinforcing the law enforcement role of the army and the gendarmerie. Dina punishments can be severe, in some cases including capital punishment. A study being prepared by a Malagasy Lawyers Association for publication in 1996 found more than a dozen instances of execution following dina trials, usually for cattle theft. In November 1994, the National Assembly formally recognized the role of the dina in reducing crime and insecurity; it passed legislation giving dina verdicts the same weight as judgments handed down by lower courts and increasing fines and prison sentences to those refusing to abide by dina decisions. However, this legislation remained under review by the Constitutional Court at year's end and had not yet entered into force. Decisions by dina are not subject to codified due-process protections, but, in some instances, they can be challenged at the appeals court level. Some cases have also been referred to the attention of the Office of the Mediator (ombudsman), which investigates and may seek redress from formal judicial authorities. Military courts have some jurisdiction over cases involving national security, such as acts constituting a threat to the nation and its political leaders, invasion by foreign forces, and riots that could lead to overthrow of the Government. Military courts, like civilian courts, provide for a process to reexamine interpretations of the law rather than the facts of the case. They are presided over by a civilian magistrate who is joined on the bench by military officers. There were no reports of political prisoners. However, there are approximately 25 self-proclaimed political prisoners, all civilians, who were convicted for their roles in the politically motivated violence in Antsiranana in late 1992 and early 1993. f. Arbitrary interference with Privacy, Family, Home, or Correspondence The home is inviolable by tradition and law, and the State does not intervene in the private lives of the people. The law requires judicially issued warrants to search houses, but there were reportedly some instances of search without proper warrants. One newsmagazine reported that the Government had increased the monitoring of mail and correspondence. Section 2 Respect for Civil Liberties, Including: a. Freedom of Speech and Press The Constitution provides for freedom of expression, communication, and press and forbids press censorship. The Government generally respected these provisions in practice. People generally spoke freely, and debate in the National Assembly was open and lively. The print media openly criticized both the Government and the opposition. Opposition groups, trade unions, professional associations, and private citizens have regular access to the press. Some journalists, however, although in decreasing numbers, continue to practice self-censorship fearing reprisals from the Government or others for aggressive investigative reporting. Journalists rarely cite the names of sources, in part because Malagasy culture aspires to be nonconfrontational, and in part because journalists do not believe they can count on effective backing by their editors and publishers in case of a lawsuit. There is also a persistent reluctance by government officials and others to share information with the press. State-owned radio and television are the most important means of reaching the public and continued to feature discussion programs and debates on topics of public policy, although it rarely included editorial comment. Malagasy television broadcasts network news from France via satellite each evening. There is one private television station in the capital, and licenses have been granted for two others. English and French language television stations are available via cable in the capital or satellite dish throughout the country. Along with state radio, there are seven private radio stations in the capital area and a number of others in provincial cities which cover political subjects and are sometimes critical of the Government. Although a law dating from the previous Republic requires Ministry of Interior approval for films and videotapes shown in public, in practice this regulation is rarely enforced. There were no reports of threats to academic freedom. b. Freedom of Peaceful Assembly and Association The Constitution provides for these freedoms, but there are some legal restrictions. Municipal permits, usually granted, are required before holding public meetings but may be denied if government officials believe that the meeting poses a threat to the State, endangers national security, or significantly encumbers public thoroughfares. Officially established security zones are off-limits to demonstrators. The proliferation of political and nongovernmental organizations continued and is indicative of recent relaxations on free association rights. There are more than 60 political parties and some 900 NGO's. c. Freedom of Religion The Constitution provides for freedom of religion, and the Government respects this right in practice. Missionaries and clergy are permitted to operate freely. d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation The Constitution provides for freedom of movement, and the Government places no formal restrictions on travel within or outside the country. However, domestic security concerns do effectively restrict travel in some places, especially at night. Malagasy and foreign residents require exit visas issued by the Ministry of Interior, but these visas are almost never refused unless the person is involved in legal proceedings. The Government generally cooperates closely with the United Nations High Commissioner for Refugees in processing a small number of refugees or asylum seekers. However, the Government has failed to resolve the status of approximately 127 Ethiopian asylum seekers, who have been in Madagascar for several years. There are several refugees from Zaire and Sudan. There were no reports of forced expulsion of those having a valid claim to refugee status. Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government Citizens have this right. In 1993 Madagascar concluded more than 2 years of political transition which were initiated by largely peaceful mass demonstrations against the previous regime of Didier Ratsiraka in 1991. Albert Zafy was elected to a 5-year term in 1992, and 138 members of the National Assembly were chosen for 4-year terms in 1993 in generally free and fair elections, by direct universal suffrage and secret ballot. Under the Constitution, the President has primary responsibility for national defense and foreign policy while the Prime Minister is Head of Government and has primary responsibility for domestic policy. During the year political tensions between the President and the Prime Minister continued; in July the President's supporters again brought unsuccessfully a motion of censure against the Prime Minister in the National Assembly, which, if the motion had passed, would have required him to resign. In turn, some National Assembly supporters of the Prime Minister threatened, but did not carry out, impeachment proceedings against the President. As a result of this political dispute, the President called a national referendum for September 17, to empower him to name the Prime Minister and the Council of Ministers directly. The President's proposal won 62 percent of the vote, although there was a high rate of abstention. Prime Minister Ravony resigned in October after the official results were published. President Zafy selected Emmanuel Rakotovahiny from among candidates proposed by each bloc in the National Assembly and subsequently approved the new Council of Ministers named by the new Prime Minister. The Constitution calls for the Prime Minister to be appointed every 4 years when a new National Assembly is elected, or upon vacancy. The Constitution gives the President, acting in conjunction with the Council of Ministers, the right to dissolve the National Assembly if there have been two governmental crises in the previous 18 months. The High Constitutional Court must rule on what constitutes a crisis. The Prime Minister is required to submit his resignation (as must the Cabinet) if a motion of censure is passed by a two-thirds majority of the National Assembly. The creation of the Senate moved forward with the holding of communal elections on November 5. Departmental and regional elections, which must also precede a senate election, are scheduled to take place in 1996, although no date had been set by year's end. There are no legal restrictions against women participating in politics, but in practice men dominate the political process. Only one ministerial position was held by a woman in the second and third Ravony cabinets, and women hold only 6 percent of the legislative seats. However, in the judiciary women have significantly higher representation. Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights By law, human rights groups are considered to be political groups and must register with the Government. Some nongovernmental human rights groups exist and are increasingly active, for example in such issues as defending press freedoms. They have been joined by civic education organizations that have much the same agenda. The Constitution provides for the establishment of an independent organization charged with promoting and protecting human rights. In 1994 the National Assembly designated the Office of the Mediator (ombudsman) to assume that constitutional role. This action reversed an earlier decision by the Ravony government to abolish the mediator on the grounds that it was redundant given the President's constitutional role as the public arbiter in matters of government administration. The power of the Office of the Mediator rests on moral suasion. The Office of the Mediator published annual reports in 1994 and 1995 on its activities and has produced and distributed a brochure to inform the public of its role. While slow to carry out investigations of major cases of violence, notably the August 1991 killings at Iavoloha palace, the Government did not penalize or repress anyone for criticizing its human rights record (see Section l.a.). The Government is open to visits by international human rights groups and to the presence of domestic and international election observers, although no foreign groups applied to observe the referendum. United Nations organizations, including the International Labor Organization (ILO), operated freely and extensively in Madagascar. Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status The Constitution prohibits all forms of discrimination and groups that advocate ethnic or religious segregation. However, there are no specific government programs to enforce antidiscrimination provisions. Women According to various sources, including magistrates, journalists, and women doctors, violence against women is not widespread. In the rare cases where physical abuse is detected, police and legal authorities do intervene, although there is no law dealing specifically with violence against women, except in cases of rape. Spouses can be tried for nonrape abuses, generally under civil law. Some women prisoners have been victims of rape. Despite constitutional prohibitions, there is societal discrimination against women, although less so in urban areas where women have an important, if secondary, role in the business and economic life of the country, with many of them managing or owning businesses or filling management positions in state industries. However, women in rural areas face greater hardship, bearing the responsibilities of raising a family while also engaging in farm labor or other subsistence activities. Under a 1990 conjugal law, wives have an equal say in choosing where a married couple will reside, and they receive generally equitable distribution of marital property in instances of divorce. Widows inherit one-half of joint marital wealth. In practice, some parts of the island still observe a tradition known as "the customary third" whereby the wife has a right to only a third of a couple's joint holdings. However, a widow receives a pension, and a widower does not. Children While official expenditures on children's welfare are low, the Government has decided to maintain spending by the Ministries of Health and Education at current levels despite an overall climate of increasing budget austerity. These levels are insufficient, however, to halt the decline of public services in the high-inflation environment. There is no pattern of official or societal abuse against children. People With Disabilities Physically disabled people are not subject to discrimination in education and in the provision of other state services, but neither are they the beneficiaries of special enabling or protecting legislation. The Government has not enacted legislation or otherwise provided for accessibility to buildings and transportation for the disabled. National/Racial/Ethnic Minorities Madagascar is inhabited by over 12 million people. The Malagasy are of mixed Malayo-Polynesian and African origins and are made up of 18 distinct groups based on regional and ancestral affiliation. Although there are some linguistic differences among them, nearly all speak Malagasy, which is of Malayo-Polynesian origin. None of these groups constitutes a majority of the population. Long-term historical processes of military conquest, ethnic domination, and political consolidation, however, have traditionally raised the political and economic status of highland ethnic groups of Asian origin over that of coastal groups of more African descent. The centralized planned economy of the previous regime reinforced the concentration of economic and political power in the highland, capital area. This policies have contributed to ethnic tensions between the two groups. Ethnic or regional solidarity may also be a determining factor in hiring practices. An Indo-Pakistani community of about 20,000, primarily engaged in commerce, has been in Madagascar since the early part of this century. Few, however, have been able to obtain Malagasy citizenship, since it is customarily bestowed matrilineally through native Malagasy women. The Indo-Pakistanis are frequent targets of mistrust and criticism, and their shops have often been targets of violent attack during civil disturbances. There were several reported instances of wealthy Indo- Pakistani businessmen or their family members being kidnapped and held for ransom. Section 6 Worker Rights a. The Right of Association Citizens in both the public and private sectors have the right by law (the 1995 Labor Code--passed by the National Assembly in 1994, approved by the High Constitutional Court in 1995--and the 1992 Constitution) and in practice to establish and join labor unions of their own choosing without prior authorization. However, essential service workers, including police and military, may not form unions. Unions are required to register with the Government, and registration is routinely granted. About 80 percent of the labor force of 5 million is agrarian. Unionized labor accounts for only about 5 percent of wage labor. There are a number of trade union federations, and many are affiliated with political parties. In practice, however, formal public and private sector unions have not played a major role politically or economically in recent years. The Government exercised very limited control over organized labor. The new 1995 Labor Code and the new Constitution provide for the right to strike, including in export processing ("free trade") zones. Those groups providing essential services--police, fire fighters, hospital workers--have only a limited right to strike. Labor unions fear that the 1995 Code could have the practical effect of discouraging strikes due to the mandatory requirement to first exhaust conciliation, mediation, and arbitration procedures. However, the new law was not used in 1995 as a significant deterrent to legally called strikes. In addition to the magistrates' strike (see Section 1.e.), there were strikes by the employees of the Ministry of Higher Education, two banks, an insurance company, and several state-owned organizations, and by university professors. There were also brief work stoppages (usually not exceeding 2 days) in several ministries, by staff members in the National Assembly, and in hospitals in the capital and elsewhere. For example, there was a work stoppage and blockade in the central market area of the capital in response to police efforts to enforce licensing and sanitary laws. Laws and regulations prohibit retribution against strikers who adhere to legal procedures governing strikes. In 1995 a court ruled in favor of employees of one firm who alleged that they had been discharged in retribution for a legal strike. Unions may and do freely affiliate with and participate in international bodies and may form federations or confederations. b. The Right to Organize and Bargain Collectively Both the Labor Code and the Constitution provide for the right to bargain collectively. The Code states that collective bargaining may be undertaken between management and labor at either party's behest. Collective bargaining agreements exist but are not common, and the Government is often involved in the bargaining process, in part because of the large number of unionized employees in the public sector. The minimum wage is set by the Government. Other wages are set by employers with individual employees, sometimes below the minimum wage. When there is a failure to reach agreement, the Ministry of Labor convenes a committee of employment inspectors who attempt to resolve the matter. If this process fails, the committee refers the matter to the chairman of the Court of Appeals for final arbitration. No such cases reached the Court of Appeals in 1995. The Labor Code prohibits discrimination by employers against organizers, union members, and unions. In the case of antiunion activity, the union or its members may file a petition in civil court challenging the employer. Labor laws apply uniformly throughout the country, including in free trade zones. However, the Government has difficulty enforcing labor laws and regulations due to lack of basic resources. Ministry of Labor inspectors, who number only 27, visit industrial work sites with some regularity but mostly in the capital region. There are several export processing zones (EPZ's). Firms in the EPZ's are required to follow all existing labor laws, including minimum wage laws, for their industry. c. Prohibition of Forced or Compulsory Labor Forced labor is explicitly prohibited by the Labor Code and is not practiced. d. Minimum Age for Employment of Children The Labor Code describes a child as any person under the age of 18. The legal minimum age for employment is 14 years, and the use of child labor is prohibited at sites where there is apparent and imminent danger. The Government tries to enforce these child labor laws in the small formal employment sector through inspectors from the Ministry of Labor and Social Security. However, in the large subsistence sector, many young children work with their parents on family farms at much earlier ages. Similarly, in the urban areas many children earn money by hawking parking spaces, newspapers or other wares, and by carrying water and begging. e. Acceptable Conditions of Work The Labor Code and its implementing legislation prescribe the working conditions and wage scales for employees, which are enforced by the Ministry of Labor and Social Security. The law distinguishes between agricultural and nonagricultural work. There are several administratively determined minimum wage rates in Madagascar, depending upon skill levels, starting at $25 (110,550 Malagasy francs) a month for unskilled workers. This wage is inadequate to ensure a decent standard of living for a worker and family, and workers must supplement their incomes through subsistence agriculture, petty trade, or reliance on the extended family structure. Given insufficient enforcement measures, official wage rates are sometimes ignored as high unemployment and extreme poverty lead workers to accept salaries below the legal minimum. There is a 40-hour workweek in nonagricultural and service industries and a 42 1/2-hour workweek in agricultural industries. There are also provisions for holiday pay, sick and maternity leave, and insurance. The Labor Code sets rules and standards concerning building and work safety, machinery, weight-lifting limits, and sanitation. Ministry of Civil Service, Administrative Reform and Labor inspectors visit industrial work sites and report on violations of labor code rules. However, they are usually prevented from traveling regularly beyond the capital region by insufficient resources. If cited violations are not remedied within the time allowed, the violators may be legally charged and subject to penalties. Nevertheless, in some sectors safety measures are lacking due to the expense of even minimal protective clothing and other personal security apparatus. To date, there have been no published reports on occupational health hazards and accidents, although there is clear evidence that these hazards exist. There is no explicit right allowing workers to remove themselves from dangerous work without jeopardizing their continued employment. The ILO has cited the Government within the past year for failure to observe ILO conventions and standards governing workplace safety and weight limits. (###)
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