Including the Excluded: Local Government Services in Sri Lanka and the Plantation Community

, by NANTHAKUMAR A. R., RAMESH R.

R. Ramesh and A. R. Nanthakumar critically analyse the 2017 amendment Bill to the Pradeshiya Sabhas Act, advocated as a remedy to this problem, in the context of historical legal and structural discrimination of the people in the estate sector. They argue that the full inclusion of this persistently neglected group in local government is needed for greater realisation of their hard-won right to citizenship of Sri Lanka.

  1. Introduction

This paper endeavours to discuss briefly the new Bill (dated October 13, 2017) to amend the Pradeshiya Sabha (PS henceforth) Act, No. 15 of 1987, its flaws and also the ways and means that could make the amendment a meaningful victory for the plantation community to obtain substantial benefits from local government authorities. In fact, local governance in the plantation sector has specific problems concerning social citizenship, minority rights, ethnicity, exclusion from and access to local democracy and its quality, stemming from persistent legal and institutional discrimination prevailing in PS service delivery in the plantation sector.

The Pradeshiya Sabhas (Divisional Councils) are a crucial local government institution meant to serve local communities and promote local democracy. However, they have not succeeded in delivering actual benefits to the plantation community, as certain provisions of the Act of 1987 prevent them from gaining access to essential public services supplied by the PS, including public health, housing, road construction, pre-school, water, sanitation, and so forth. Although the community has been exercising franchise rights to elect members from their ethnic group to represent them at PSs over the last two decades, the PSs are not legally obligated to serve this community owing to these legal impediments. This makes them not accountable to estate residents. Moreover, there has been a general perception that estate management must be held responsible for the well-being and development of those who work and live under the purview of privately-owned plantations.

Recently, following long-standing advocacy and lobbying, a Bill1 has been introduced in Parliament with the view to amending the current Act and thereby enable this community to obtain PS services. In this background, this paper seeks to answer the following questions: How could the Bill mete out justice to this community in enjoying public services and social rights in their entirety without being subject to any hindrances? How could this Bill be made a meaningful victory for this community? Based on the analysis of relevant primary data, the Pradeshiya Sabhas Act of 1987 and the Bill for its amendment of 2017, the paper argues that institutional reform and effective implementation of the draft amendment are of vital importance in making the amended Act of benefit to this community.

In general, it is envisaged that public institutions and local government bodies shall be established to ensure that public services and development programs are implemented, administered and streamlined with a sense of impartiality, fairness and accountability in compliance with the needs and aspirations of citizens. It is further expected that all section of citizenry should be able to access public services in a fair and equal manner without any discrimination on the grounds of race, religion, caste, origin, heritage or region so that they can fulfil their needs (Navaratna-Bandara 2009). The PS’s constitute part of the third tier of the Sri Lankan state apparatus and are obligated to uphold the notion of local democracy and local development in a manner as to reach all segments of society within the principles of impartiality and fairness. Nevertheless, owing to its inherited flaws in its operation, the quality of the services of PSs in terms of access, fairness, equality, equity, efficiency and sustainability have progressively deteriorated in general, and in the plantation sector in particular.

The concept of local governance as a subject of inquiry and discussion in the geographical areas in which the plantation community predominates, has emerged very recently among academics, policy-makers as well as political activists. The establishment of provincial councils, PSs and subsequent reforms to local government since the mid-1980s, have provided some impetus for this interest in local governance. It also marks a shift in plantation politics, which had for decades been dominated by issues relating to citizenship, wages, labour rights and education.

As the PS Act contains legal impediments in delivering services, a new generation of intellectuals and political activists of the plantation community has begun to focus on this issue to show how reforms could be made in the government structures at local level in order to ensure social citizenship rights. In fact, the access to institutions of governance and right of participation in the governance process and service delivery is not only a minority rights claim but also a democratic right.

This article has been organised in the following manner: the introduction discusses the background of the issue and its significance; the second section briefly provides an account of the missing link between the plantation community and PS; the third section examines the legal impediments of the current Act in accessing PS services in the plantations; the fourth section explains the new Bill to amend to the PS Act and its flaws; followed by the conclusion to the above discussion.

  1. The Plantation Community and the Pradeshiya Sabhas

The Pradeshiya Sabhas were established by Act No.15 of 1987 subsequent to the introduction of provincial councils. As per the Act, the purpose of establishing the PS is to regulate, control and administer all matters relating to “public health, public utility services and public thoroughfares and generally with protection and promotion of the comfort, convenience, and welfare of the people and all amenities within such area” (s. 3). Further, the preamble to the Act states that the purpose of the establishment of PSs is to “provide greater opportunities for the people to participate effectively in decision– making process relating to administrative and development activities at a local level”.

Nevertheless, in the case of the plantation community, this objective remains merely a dream as they have limited space for participation in local government. There are significant numbers of Hill-Country Tamils resident in at least 05 Municipalities, 05 Urban Councils and 102 Pradeshiya Sabhas in the Central, Uva, Western and Sabaragamuwa provinces. On many occasions, the plantation people are a deciding factor in the local electorate including of the leadership of several PSs in Nuwara Eliya and Badulla districts. However, several studies have highlighted that the PSs in particular are less likely to provide their services to the plantation community living in areas under their purview. Moreover, they do not engage in any satisfactory development activities meant for the social betterment of these people, utilising their budgetary allocations (Hettige 2003; Vijesandiran 2011;

Vijesandiran and Ramesh 2013; Institute of Social Development 2011; Bastian et. al. 2014).

The plantation community, which predomi-nantly consists of a Tamil community of re-cent Indian origin, is the fourth largest ethnic community in Sri Lanka. In 1815, the British brought the entire island under their control and subsequently introduced economic changes that led to the introduction of a new communi-ty of people with the cultivation of plantation crops in the hill country. These Tamils from South India, who settled down in Sri Lanka, are generally referred to as Tamils of Indian Or-igin, Up-Country Tamils, Plantation Tamils or Hill-Country People. The plantations are rec-ognised as the home of the Hill-Country Tam-ils, where they have lived for ages. Until 1948, the Plantation Tamils were not discriminated against in terms of citizenship, as every inhabitant was a British subject. However, just six months after independence, the United Nation-al Party (UNP) government passed CitizenshipAct No. 18 of 1948 which deprived millions of Plantation Tamils of their citizenship rights. Though it is stated that the citizenship problem was solved in 2003 (Grant of Citizenship to Per-sons of Indian Origin Act, No. 35 of 2003), the original legislation has been the cause of many problems of the plantation community in general.

The plantations, managed by private companies, enjoy considerable autonomy within the local context. They not only control the landed property, but also roads and other amenities falling within their boundaries. Quite surprisingly, even today, management continues to have the power of certifying national identity card (NIC) applications, death certificates, electricity connections and so forth. Most worker families still live in housing settlements located on the plantations which are owned by the plantation companies. Given the enclave nature of the plantation community and their lack of citizenship rights until fairly recently, trade unions and non-governmental organisations (NGOs) have provided the main link between the community and public institutions for several years.

Since the late 1980s, the plantation community have gradually been absorbed into public services in a limited way amidst the legal and institutional barriers. The lack of political willingness of successive governments and the dysfunctional relationship between public institutions and plantation management continue to limit their access to public services and specifically to the PS. Although there is a widely held notion that the legal form of citizenship improves access to public services; provides greater space to enjoy social citizenship; and end years of marginalisation in governance, this has not been the case of the plantation community even after 2003. The communalistic policies of successive governments have been behind the present state of affairs where the estate settlements are left out of the state administrative machinery and the purview of the local government bodies. The British, who ruled this country in the pre-independence era and the chauvinistic Sinhala leaders who gained power after independence, legislated and implemented laws that promoted discriminations and marginalised the plantation people from all forms of governance.

  1. Pradeshiya Sabhas Act (as unamended) and Service Delivery

In relation to the plantation community, the Pradeshiya Sabhas Act of 1987, which is in force now, may be seen as an extension of earlier legislation on village committees. The Village Communities Ordinance of 1938 was initially worded in a way that was discriminatory of ‘Indian Tamils’ living in the estates, whom it intended to exclude from franchise rights in the election of village councils. Eventually the phrase ‘Indian Tamils’ was removed and replaced by the more neutral “the persons who live in the houses provided by the plantation management” (Navaratna-Bandara 2017: 23). The exclusion of Up-Country Tamils living in the estates allowed the British Plantation Raj to keep the workers out of local politics. The legacies of this system still exist in local governance; even though there have been measures taken to accommodate estate residents in local representative institutions.

It has long been argued that the current PS Act does not explicitly stipulate anything about es-tates though villages are mentioned. For in-stance, s. 2(1) of the PS Act states that the sub-ject Minister may “declare any area to be a Pradeshiya Sabha area for the purposes of this Act and shall define the administrative limits of the area so declared. The administrative limits of every Pradeshiya Sabha area so declared shall, as far as possible, correspond to limits of an Assistant Government Agent’s division excluding any areas comprised in a Municipality or a town... which falls within the limits of such Assistant Government Agent’s division”.

However, there is no specific inclusion of the es-tate within the PS area either. The exclusion of estate residents as incorporated in the amend-ed Village Communities Ordinance of 1938 has been extended to the current PS Act. This is un-surprising as the statelessness issue of the planta-tion community had not been solved at the time when the Act was formulated in 1987.

As the estate settlements have not been ab-sorbed into the control or the administrative structure of the Pradeshiya Sabhas, the utilisa-tion of its funds for the development needs of the plantation community is a violation of the rules and regulations of the Pradeshiya SabhasAct. It is evident that not only the areas of estate production but also human settlements with-in the plantations have been recognised as the private property of the estate administration. Thus if any physical development is performed in any area within the plantations, utilising pub-lic finances, then the area where such develop-ment is implemented must be handed over to the Pradeshiya Sabha. This is made clear in s. 33 of the Act that deals with roads and other devel-opment work that benefit individual property owners.

“The Pradeshiya Sabha may, at the request of the owner or owners of or more estates or industrial enterprises situated within its limits, in any case in which the Pradeshiya Sabha is of opinion that the public interest would not otherwise justify the construction or maintenance of a road in such a locality, contract with such owner or owners, for the construction or maintenance of a road for the service of the estate or estates, or the enterprise or enterprises in question, subject to the payment of such contribution towards the expenses of such construction or maintenance as may be approved by the Pradeshiya Sabha and subject to the condition that by an appropriate instrument such road is constituted a public road and is vested in the Pradeshiya Sabha, and all such agreed contributions shall be deemed to be special rates imposed upon the lands benefited, and shall be recoverable in the same manner as a rate imposed under this Act, and all the provisions of this Act relating to rates shall apply thereto.”

Section 33 has been seen as a major impediment to reap the benefits of development projects of the PS and very clearly delineates estates as individual or private properties and prevent estates from being included in development projects. More importantly, this Act fails to demarcate the difference between an industry and a community. The estates do not merely consists of tea and rubber gardens; apart from that hundreds of thousands of poor people live in these plantations who deserve public services to fulfil their basic social needs. Quite interestingly, this section states that any activity undertaken in the estates by PS has to be at the request of the owner or with the consent of the owner. Although the Act considers plantation lands as private property, it must be understood that the ultimate owner of the land is the Sri Lankan state. Estate lands were vested in the Land Reform Commission (LRC), subsequent to nationalisation in 1975, which has powers to make decisions on their use. It could be argued that the Regional Plantation Companies are not owners of estate lands; they undertake a business in those lands leased by the government after 1995 (Bastian et. al. 2014: 5).

In other words, plantation companies are merely managing the lands for a profit. It is the responsibility of the PS and its political representatives to mark the difference between agro-industry and the community. After all, the plantation community are full citizens of this country who have lived here on the estates for generations, making their livelihood under deplorable living and working conditions, while making a remarkable contribution to the national economy. The institutionalised discrimination against this community is not only a denial of their citizenship and democratic rights, but also poses challenges to national development goals.

Additionally, ss. 19(xiv) and 19(xxii) of the Pradeshiya Sabhas Act prescribe that the funds (generated through tax and other sources) of the PSs have to be invested for village develop-ment, renewal, enhancement, and maintenance work, integrated development of villages and the development activities of rural women and their enhancement. By omission of mention of estates, these sub-sections too preclude utilising public funds for developmental and other activ-ities in the plantations. The relevant legal provi-sions are as follows:

 “to spend any part of the Pradeshiya Sabha Fund for the construction or alteration, improvement or maintenance of village works, and for the purpose of administering any property vested in or acquired by or otherwise transferred to the Pradeshiya Sabha, or of carrying out the provisions of this Act or any by-law made or deemed by virtue of any written law to have been made thereunder”
[s. 19(xiv)]; and

“to spend any part of the Pradeshiya Sabha Fund, in promoting rural women’s development activities, integrated development of selected villages, community development projects, and in making grants to rural development projects, Gramodaya Mandalayas and rural development organisations qualified to be represented on Gramodaya Mandalayas” [s. 19(xxii)]. 

Although these provisions are a significant legal hindrance to reap the funds of PS, it is also notable that a considerable amount of development work has been carried out by PSs in the plantations, mainly construction of roads, footpaths and water supply. However, these are projects financially supported by members of Parliament and provincial councils but implemented by the PS. Those services based on the own revenue of the PS, such as public health, pre-schools, maintaining roads, street lamps, cultural enhancement, housing and many other services are less likely to reach this community due to legal obstacles (Vijesandiran and Ramesh, 2013).

Political factors also play a key role in extending services to the plantation community. For instance, in some cases where the PS is controlled by a political party of the plantation community, the PS is more likely to prioritise community development of the estates from the funds received from line ministries, members of Parliament and provincial councils and donor agencies. When the control of a PS is with plantation political parties and representatives, it enables them to even utilise the PS revenues (generated through tax, rents, service charges, fines and licenses) for estates – though it is inadequate for large-scale infrastructure development. This does not happen where plantation political parties and representatives are a permanent minority in the PSs, namely in the districts of Badulla, Kandy, Ratnapura and Kegalle. It could be also argued that by undertaking public works from PS funds amidst legal barriers, there is always the risk of legal action against the councils.

The above discussion indicates that continua-tion of some policies and laws enacted during the statelessness period seem to have an endur-ing impact among plantation people in general and from governance perspectives in particular. This, in its turn, provides the avenues to subvert the quality of government, quality of public services, institutional quality and eventually, citizenship rights.

Apart from legal discrimination in accessing PS services, there has been visible discrepancy in terms of availability of local government in-stitutions in the plantations. The Nuwara Eliya district provides a clear example. The Nuwara Eliya and Ambagamuwa Pradeshiya Sabhas are the only two PSs where Plantation Tamils are able to form a majority; whereas there should be at least 14 such local government authori-ties in proportion to their population distribu-tion in that district. Even in the Nuwara Eliya district they are underrepresented. According to the 2012 census, the population of Nuwara Eliya PS was 210,968, which is over 30 times larger than the artificially created Weli-Oya PS in the Mullaithivu district where the population is only 6,949 (6,937 Sinhalese and 10 Tamils). Meanwhile in Ambagamuwa PS the population is 203,976, which is 29 times larger than the Welioya PS.2

As the evidence shows, an inadequate number of PSs remains a barrier not only to access ser-vices but also to gain access to those institutions and relevant information to enjoy some form of services. This particularly affects some segments of the plantation community as estate settle-ments are geographically isolated. Accessibility is a condition for local democracy. Spatial acces-sibility becomes a major concern in the planta-tions where the physical distance between citi-zens and local government authorities remain high. The large geographical areas of some PSs becomes a crucial concern among women in the plantations whose relationship with these institutions is severely limited. As a result, they are further marginalised and placed outside the governance and political structure at the local level. Therefore, they are unaware of the value and relevance of these institutions and develop a distrust towards these institutions.

Uyangoda argues that (2013: 390) “when local government institutions have no institutional awareness of communities that are marginalised from the process of governance because of non-sensitivity to the very existence of marginality, it creates barriers to accessibility”. This could be observed in the plantations where there is no proper mechanism to establish the institutional link between PSs and this community, which afflicts the entire community in general and women in particular. This amply depicts the need of institutional arrangements and reforms, in addition to legal amendments, to accommodate the Plantation people in general and women in PS services.

  1. The Bill to Amend the PS Act

Since the mid-1990s, civil society organisations, NGOs, political representatives and intellectuals have been lobbying with successive governments to amend the provisions that inhibit the plantation community from accessing legally mandated public services. In 1994, the Institute of Social Development (ISD), a Kandy-based NGO initiated an advocacy campaign together with others with a view of getting the attention of politicians, bureaucrats and the media on this issue. Discussions with relevant government ministers, awareness-raising among Pradeshiya Sabha members and estate residential communities, as well as studies on the impact of exclusion are some of the activities carried out towards the amendment of the 1987 Act. After two decades of debate and advocacy, a Bill to this effect has now been presented to Parliament.

During the 2011 PS elections, all the plantation politicians gave an assurance to the public that amendments to the PS Act will be brought. Further, parliamentarians represented this community raised the issue at the Consultative Committee of the Ministry of Provincial Councils and Local Government. Further, the ISD and some political parties and NGOs in collaboration with other stakeholders submitted proposed amendments at the request of then subject Minister, A. L. M. Athaullah (Institute of Social Development 2011).

All these initiatives urged relevant political and administrative bodies to identify the gaps in the PS Act and to proceed with relevant amendments which led to the debates and discussions for responsive local governance under the theme of inclusion of the plantation settlement into the jurisdiction of local government. Against this background, a Bill was submitted in 2017 to amend the Act.

According to the Bill, the legal provisions that denied services to the estate community have been repealed. For instance, as per the Bill, s. 19 of the PS Act which precluded the spending of PS funds for the estate sector, should substitute “improvement or maintenance of village works” for “improvement or maintenance of village works or estate settlements” (cl. 2(1)). Likewise, reference to “integrated development of selected villages” is replaced by “integrated development of selected villages and estate settlements” (cl. 2(2)). It is therefore likely that a larger part of PS funds can be earmarked for development activities in estate settlements, if the Bill is passed into law.

Further, the Bill has revised s. 33 and states that Pradeshiya Sabha funds may be utilised to “facilitate the residents of the respective plantation regions with roads, wells and other common amenities necessary for the welfare of such residents”, upon adoption of a special resolution of the Pradeshiya Sabha and in concurrence with the administrative authority of the relevant estate (cl. 3(2)). “Plantation regions” are defined in the Bill as those “areas coming under the Divisional Secretary’s Divisions in the Districts in the Central, Uva, Sabaragamuwa, Southern, Western and North Central Provinces, where the resident labourers live in the estates in which tea, rubber, coconut and oil palm are cultivated” (cl. 3(2)).

Some provisions in the Bill need to be amended, for instance, cl. 3 states that developmental activities in the estates will be undertaken “in concurrence of the administrative authority of the relevant estate”, in other words, the estate management. This phrase enables the Regional Plantation Companies to exercise their authority over human settlements within the estate premises in Pradeshiya Sabha funded activities. On some occasions, this may even lead to unnecessary conflicts between estate management and the political authority in implementing development work.

This situation places PS officials and members under great difficulty in getting approval, finding locations and land for certain development activities within the estate. Even at present, the new housing projects for estate workers encounters the very same problem in getting approval and finding a plot of land for new houses. Therefore, this Bill needs to be amended in a manner so as to deliver public services without hindrance.

Further, apart from legal amendments, enabling the plantation community to fully access PS services requires creation of new local government institutions in the plantation sector. It was proposed in October 2017 to establish four new PSs in the Nuwara Eliya district taking into account the large population and geographical areas of Ambagamuwa and Nuwara Eliya PSs. Accordingly, new PSs have been created in Maskeliya, Norwood, Agarapatana and Kotagala with effect from February 14, 20183 [that is, after the 2018 Local Government election].

Yet, there is a need for more PSs to be established in plantation areas taking population and geographical distance into account. When there are an adequate number of PSs, it is more likely that the sense of feeling about public services and its significance; institutional awareness; social relations with the PS and its services and rules and regulations, will grow in the estates. Moreover, the plantation people need to realize their rights and duties as citizens and develop their civic virtues and skills to fight for their social rights, public services and against unfair treatment by officials.

At the same time, when citizens feel that these institutions do not have the capacity to provide services and fulfil their needs, they become accustomed not to access these institutions and they will also not have a reason to trust these institutions. Thus, success of the amendment depends on building productive relationships between the PS and the plantation community, trust, mutual respect and recognition and upholding equality before law principles in service delivery, policies and procedures. This is indeed a matter of supply and demand. PSs have to work under the established norms, rules and regulations within the framework of procedural justice; and the plantation community will have to fulfil their roles and responsibility as citizens to enjoy the services.

Poverty, marginalisation and many other forms of discrimination make local government less accessible to the plantation people and there is no proper mechanism, policies and procedures to address the social needs of this community through local councils. Therefore, the plantation community are sceptical about institutional capacity and efficacy of the PS. In fact, this community is in urgent need of the intervention of the PS for crucial services such as estate infrastructure, water, sanitation, housing, pre-school education, library facilities, public health, subsidies for poor families, and so forth.

These are the immediate needs of this community as they do not get sufficient welfare services from the plantation management. Poor wages and socio-economic conditions further push this community to seek public services at the local level. Women in the plantations are in dire need of food assistance, maternity benefits, child care, nutrition and health support. In many cases, due to absence of PS services, the plantation women turn to NGOs for their assistance, though it is not sufficient. Moreover, women aspire to participate in local governance in order to voice their aspirations and demands and thereby get them incorporated in the policies and programmes of the PS.

Nevertheless, in practice, institutional and structural barriers continue to limit their participation in local governance. Unless the PS creates an effective mechanism to ensure participation of the community, the proposed amendment is unlikely to have a substantial impact on the plantation community in general and women in particular. Although enhancing public participation in PS sittings remain a key expectation, it has not been effectively practiced. PS members too dislike to empower peoples participation due to the corrupt political nature of local government institutions. Further, gender budgeting and participatory budgeting are not observable in PS; and most of the members are unaware of these concepts. These strategies remain vital to address needs and aspirations of women and children in this community.

The patriarchal nature of this community and local government institutions also have negative implications in gaining access to PS services by women. The lack of informal networks and patron-client relationships further disadvantage women from enjoying PS services. Moreover, it is also necessary to employ Tamil-speaking public officials in PSs to overcome language barriers of accessing public services. In many instances, the ethnic majority and the Sinhalese language continue to dominate institutional working, service delivery and organisational citizenship behaviour, even in PSs where the plantation community are a numerical majority. Thus, monolingual domination and majoritarian practices exclude deserving people from PS services as there is no institutional mechanism to serve Tamil-speaking service-seekers.

With regard to local taxes and rates, currently PSs do not collect revenues directly from the plantation community. This is because the community were not included in local governance and therefore also exempted from local taxation. Nevertheless, once the Act is amended, measures need to be introduced to collect taxes and other charges to finance public services to the plantations and to create a sense of feeling about their right to access services as legal entitlements and improve their civic virtues and skills to participate, demand and fight for their social rights. It is also pertinent to note that, currently, according to section 134(4) of the PS Act, the RPCs are liable to pay an acreage tax (called levy) for the entire cultivation land, while the plantation community are not liable to pay rates on their housing as they are resident on the land for the purpose of its cultivation.

  1. Conclusion

Although the plantation community has been enjoying franchise rights in local government elections since the 1980s, they are unable to reap substantial benefits from local governance and democracy. This calls into question the quality of local government, meaningful decentralisation, citizens’ participation in local governance, inclusive democracy and citizenship. In the post war context, reconciliation, national integration, state reform and power sharing have been the subject of much discussion. In ethnically diverse societies like Sri Lanka, in the context of the post-war situation, political and administrative reforms are essential to accommodate excluded and disadvantaged sections in governance.

Above all, amendment to the PS Act of 1987 also needs to be looked at beyond its traditional service delivery function, although that continues to be its key mandate. From the perspective of ethnic minorities, local government is of special significance to numerical minorities with their local presence. Local government is the main institutional level of the state and governance to which the local communities have direct access. Given the fact that the Sri Lankan state is a majoritarian state, its institutions of governance that represent the structures of the central government are mostly detached from local citizens in general; and ethnic minorities and the marginalised in particular. Addressing the question of detachment, marginalisation in local democracy or estrangement of minority ethnic citizens in the periphery, calls for strengthening local government in those areas to facilitate citizens participation in local governance.

Being the lowest tier of the existing institutions of elected governance, a new approach to local government can make it a better link between minority citizens in the periphery and the state, which requires restructuring and reforming local governance in a manner as to accommodate all segments of society as rightful citizens of the country. It is also imperative to uphold the quality of government principles such as impartiality, fairness, equality before law in exercising powers and implementing policies and programs of local government institutions regardless of ethnicity, politics, gender, caste, profession and social background, which is most likely to improve and ensure equal access to local government services to all segments together with the amendment to the PS Act of 1987.


R. Ramesh and A. R. Nanthakumar

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