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Philosophy of Law

Universalizability and Philippine Jurisprudence

Emmanuel Q. Fernando

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ABSTRACT: The requirement that legal reasoning be universalizable is so unquestioned as a legal doctrine that it is practically axiomatic. Recently, two Philippine Supreme Court cases have been decided in a manner that apparently dispenses with this requirement. I discuss these two cases in the light of the requirement. I conclude that the requirement, rather than being diminished by the two cases, has actually maintained its axiomatic status on the basis that the reasoning in the two cases is deficient: the first either for inequality in treatment or for lack of clear guidance, and the second for the failure to appear impartial.

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The requirement that judicial reasoning be universalizable, that the justifying reasons for a decision are to be articulated or at least must be capable of being articulated in the form of a universal norm under which the facts of the case are to be subsumed so as to entail logically the decision, (1) is an acknowledged formal legal principle indispensable to any sound theory of adjudication. Recently, two Philippine Supreme Court Decisions, Alonzo v. IAC (2) and Marcos v. Manglapus, (3) challenged the very indispensability of such a requirement. This paper will discuss the interaction between and effects of these two decisions on the requirement of universalizability, by determining whether the requirement is indeed seriously challenged by the two cases and, conversely, by assessing and analyzing these two cases in terms of the requirement.

These two decisions resolved the issues in the two cases by creating exceptions for the unique circumstances attendant to the cases, thus apparently dispensing with the requirement. In particular, the Alonzo case held:

"In fact, and this should be clearly stressed, we ourselves are not abandoning the Cojenero and Buttle doctrines. What we are doing is adopting an exception to the general rule, in view of the particular circumstances of the case." (4)

In the Marcos case, reference was made to the special circumstances involving President Marcos thus:

"This case is unique. It should not create a precedent, for the case of a dictator forced out of office and into exile after causing twenty years of political, economic and social havoc in the country and within the short space of three years seeks to return, is in a class by itself." (5)

In discussing the interaction between and effects of these two decisions on the requirement of universalizability, the paper will first briefly explain the rationale behind the requirement. Next, a concise summary of the two cases will be given. Then the challenge to universalizability will be considered. Do the unique circumstances in these two cases occasion an abandonment of the time-honoured principle of universalizability? With a negative answer to this question, the paper will finally assess and analyze these two decisions in terms of the requirement.

The Rationale of Universalizability

According to Prof. Hare, the requirement of universalizability, in its weak sense, is a conceptual or logical feature of reasoning in general, and not just of judicial reasoning. If so, the requirement that legal reasoning be universalizable actually follows from the requirement that it be rational, or that the decision be based on justifying reasons. If a reason applies in this instance, then it must apply in any other relevantly similar instance. Otherwise it fails to be a reason, or to provide a justification. (6)

The strong sense of universalizability asserts that the universal norm under which the facts of the case are to be subsumed must be capable of being formulated without the use of what would be intuitively recognized as proper names or rigged definite descriptions. (7) The weak sense, on the other hand, does not insist so categorically on the total absence of proper names or rigged definite descriptions. Prof. Hare did not go so far as to maintain that universalizability in the strong sense is a conceptual feature of all reasoning. He claimed this to be true only of moral reasoning. (8) In other words, it is part of the meaning of a moral reason to be universalizable in the strong sense. (9)

Throughout this paper, I will use "universalizability" when applied to legal reasons in the weak and not in the strong sense. This is for the obvious reason that a legal reason always contains an implicit reference to a particular jurisdiction. (10) But apart from reservations as to jurisdiction, I maintain that a legal reason to be satisfactory must be universalizable in the strong sense.

Whether universalizability in the strong or weak sense is indeed a conceptual feature of moral reasoning or not, there is no doubt as to the value of this requirement in the moral setting. It helps avoid the phenomenon of special pleading, or the propensity of an individual to make an exception for himself when considering the moral correctness of a given course of action. In other words, it allows him to assess the circumstances of the moral situation more clearly and rationally so as to arrive at a fair and impartial decision.

Universalizability has also been claimed to be a logical feature of legal reasoning. Indeed, that laws are universal or general has been said to be part of the meaning of law. Thus Fuller posited that because law, as a system for subjecting human conduct to the governance of rules, has an inner morality, generality provides the first of eight elements necessary to its satisfactory definition. (11) Hart, on the other hand, maintained that law, being the main instrument of social control, must communicate in terms of general standards of conduct and must predominantly, but not exclusively, refer to classes of persons, and to classes of acts, things, and circumstances. (12) Raz echoed the same sentiment when he asserted that because law must be capable of guiding the behaviour of its subjects, it is sometimes assumed that the requirement of generality is of the essence of the rule of law. Actually, the making of particular laws (particular legal orders) is not anathema to the rule of law, but it should be guided by open, stable, clear and general rules. (13)

That legal reasoning be universalizable is such an accepted and unquestioned doctrine in legal reasoning that it needs no justification. It is precisely the rationale behind the requirement that every case must have a ratio decidendi, so that if a judge happened to neglect articulating one, it is left to later legal commentators or judges to provide or formulate it. Thus the ratio is invariably phrased in the form of a universal or general norm, which is oftentimes referred to as the principle or the rule of law of the case. (14) That every case has a ratio is undisputed; what is contentious is what it actually is or means and how to extract or formulate it. (15)

The requirement is distinct from Prof. Wechsler's insistentence on a principled neutrality and generality in judicial decision-making, which had sparked a lively debate in American jurisprudential circles in the late 1950s and early 1960s. (16) The point of universalizability is a conceptual one, and Wechsler's is substantive. Universalizability merely makes the trivial point that the decision be made in terms of reasons. This entails the reason's universalisability and its unavoidable relevance, not just to the instant case, but to future cases as well. The latter point, on the other hand, is the substantive one concerning how well-considered the reason must be. How far ahead into the future, or how much of possible future cases, for example, must the judge look into and consider in framing the universal norm dispositive of the case with the right level of generality and degree of perspicacity? Hence, the controversy Wechsler has sparked does not contest but rather presupposes universalizability.

As mentioned above, the requirement of universalizability is merely a formal requirement, and not a substantive one. It is nothing but the principle of formal justice in another guise. In other words, it commits itself to the principle that like cases are to be decided alike and different cases differently, without necessarily indicating how the cases are to be decided. And so being formal, it is an empty requirement but its consequential merits should not be underestimated. In insisting upon equality, it embodies the virtues of fairness and impartiality. (17) Moreover, it helps satisfy the legitimate expectations of litigants and contributes to the law's stability. Finally, it fulfills the law's function of providing guidance, a function which, if you recall, Fuller, Hart and Raz all found fundamental to the legal system.

The Alonzo and Marcos Cases

The Alonzo case involves real property co-owned by five heirs, two of whom sold their share of the land to the petitioners herein, the Alonzos. More than ten years later, the other co-owners sought to redeem the property sold. Under the Civil Code, the co-owners enjoyed a redemption period of one month after written notice of the sale. This doctrine was supported by jurisprudence from the Conejero and Butte cases. No notice in writing had been given the redemptioners about the sale. Thus the letter of the law clearly established that they had not yet lost their right to redeem.

In ruling against the redemptioners, the Supreme Court held that the purpose of the judge is to determine the legislative intent. Since intent is determined not by the letter but by the spirit of the law and it is never within the legislative intent to render injustice, the Code in this instance should not be interpreted in a manner that would allow the co-owners to redeem the property. (18) This is because, in requiring written notice, the Code merely seeks that the redemptioner is properly notified of the sale. Since the petitioner had occupied the co-owned property as neighbours of the redemptioners for more than ten years, even constructing a fence and a permanent semi-concrete structure therein, surely these facts, although not strictly speaking a notice in writing, constitutes sufficient notice to the co-owners of the sales so that the redemption period must be construed to have commenced the moment they became aware of these facts. More than thirty days have certainly elapsed since then. The right to redeem of the co-owners has prescribed.

Thereafter, the Court made that pronouncement which seemingly defies the requirement of universalizability. In justifying its ruling, the Court maintained that they are not abandoning settled jurisprudence, but simply "adopting an exception to the general rule, in view of the particular circumstances of the case."

On the other hand, the Marcos case involved a petition of the Marcoses to return to the country, but three years after they were forced out by a combination of an internal military rebellion backed by popular support and external international pressure, referred to as a 'people power' revolution. They invoked their right to return based on Article III, Section 6 of the Constitution, the provision on the liberty of abode and of changing the same and on the right to travel. The former shall not be impaired except upon lawful order of the court, while the latter except in the interest of national security, public safety, or public health, as may be provided by law. (19) They appealed also to generally recognized principles of international law, (20) which, under the Constitution, is part of the law of the land. (21) Since there exists no lawful order of the court nor any law in the interest of national security, public safety, or public health barring their return, the petitioners contended that they were legally entitled to return.

The Court did not agree. It made a distinction between the right to liberty of abode and to travel which includes the right to leave one's country, and the right to return to one's country. Since the latter is not included in the former, the case is not governed by Article III, Section 6 of the Constitution. Hence there is no need for a lawful court order or a law for any citizen desiring to return to the Philippines to be barred legally from entering.

On the other hand, international law provisions, and in particular, The International Covenant on Civil and Political Rights, govern. Article 12 of the Covenant made the above distinction, and, in reference to the right to enter one's own country, it merely provided that no person shall be arbitrarily deprived of that right.

The question therefore before the Court is whether the President arbitrarily exercised her executive power to deprive the petitioners of their rights. The Court answered this in the negative. First of all, the Court asserted that the President has residual powers, or powers that go beyond those specific powers enumerated in the Constitution, which are traditionally considered within the scope of executive power. The executive power therefore includes the power to serve and protect the people and to maintain peace and order, or in short the power to promote the general welfare, which are enunciated not as specific powers but merely as principles of the Constitution. (22) The President merely exercised this residual power in preventing the return of the petitioners to the Philippines. Moreover, no grave abuse of discretion was committed in its exercise. There were factual circumstances, in particular "a well-organized communist insurgency, a separatist movement in Mindanao, rightist conspiracies to grab power, urban terrorism, . . ., to name but a few", to warrant barring the return since it would cause a destabilisation of the situation and an escalation of violence so as to seriously jeopardize national security. Hence the President did not arbitrarily deprive the petitioners of their right to return to one's country.

The Analysis of the Cases

The question as to whether these two cases pose a challenge to the universalizability requirement can be readily disposed of. Clearly they do not. There is nothing in the circumstances of the two cases that prevent the formulation of a universal rule to subsume the facts of the case so as to entail logically the decision. Thus, even if no such rule was articulated in the Alonzo case, given the facts of the case and the reasoning provided, a universal rule could have been formulated. It was simply not done. In other words, a principled exception, as distinguished from an exception simpliciter, could and should have been made. As to the Marcos case, some such rule was provided although it was not spelled out. It could be articulated in this form. "Any individual seeking to return to the Philippines may be barred from so entering by the President in the exercise of her residual powers, without need of a court order or a law, so long as this presidential act is not exercised arbitrarily so as to constitute a grave abuse of discretion."

On the other hand, the two cases may be criticized in terms of the universalizability requirement. As to the Alonzo case, it is unclear whether the Court meant the case to be an exception or a principled exception to the prevailing doctrine. If the former, then the Court was clearly guilty of violating the universalizability requirement and could be criticized on that ground. In treating the petitioners differently, the Court played favorites. If the latter, the Court was guilty of failing to indicate precisely the scope of the exception. Thus a wide range of ratios are available, which provides too much leeway and leaves too little guidance for future cases. The exception to the written notice rule could be interpreted in any of these ways: (i.) when the redemptioner and the buyer have been living in close proximity to each other for several years, and the former obviously knows that the latter has built permanent structures on the land; (ii.) when there exist facts that clearly must have made the redemptioners aware of the sale; (iii.) when there exists facts to indicate that the owners were duly notified of the sale, albeit not in writing; (iv) when something equivalent to written notice has been given the redemptioners; or (v.) when the application of the written notice rule would lead to injustice.

On the other hand, the Marcos case is subjected to a different criticism. It can plausibly be maintained that the Court, in emphasizing the unique aspects of the case, merely wanted to impress upon the public its difficulty and complexity. However, the manner in which it was done could lead the public to a different conclusion. In calling the case "unique", "a class by itself" and that "(i)t should not create a precedent", President Marcos was described as "a dictator forced out of office and into exile afer causing twenty years of political, economic and social havoc". It is as if the Court was implying here that President Marcos was uniquely evil, and that therefore he should be treated differently. That may of course not have been the intention, given that the decision was ultimately based on a universal rule, but it definitely was its implication. Given the politically charged atmosphere of that case and the fact that the Philippines was still a nation of divided loyalties, that remark was uncalled for. It hinted of political bias and ran counter to the ideal of "the cold neutrality of an impartial judge".

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(1) This is essentially the way I formulated the subsumptivity requirement as an essential requirement of judicial reasoning in my D. Phil. thesis entitled "Models of Adjudication and the Naturalist-Positivist Debate" (p. 17), submitted to the University of Oxford, Michaelmas Term, 1992.

(2) 150 SCRA 259 (1987).

(3) 177 SCRA 668 (1989).

(4) Alonzo, p. 268, emphasis supplied.

(5) Marcos, p. 682, emphasis supplied.

(6) R. M. Hare, "Universalisability", Proceedings of the Aristotelian Society, LV (1955), p. 297.

(7) John Rawls, A Theory of Justice, Oxford University Press, Oxford, 1972, p. 131. Rawls referred to this feature as 'generality', but I follow the terminology of Hare in Freedom and Reason, Oxford University Press, Oxford, 1963, pp.38-50, and distinguish 'universality' from 'generality'. E. A. Gellner refers to this as U-type valuations ( "Ethics and Logic", Proceedings of the Aristotelian Society, LV (1955), p. 163).

(8) R. M. Hare, ibid., pp. 297-298.

(9) ibid., p. 298. See also Freedom and Reason, p. 30.

(10) ibid., p. 36.

(11) Lon L. Fuller, The Morality of Law, New Haven, Yale Univesity Press, rev. ed., 1969, p. 46.

(12) H. L. A. Hart, The Concept of Law, Clarendon Press, Oxford, 1961, p. 121.

(13) Joseph Raz, "The Rule of Law and its Virtue", in The Authority of Law, Clarendon Press, Oxford, 1979, pp. 214-216.

(14) For example, Austin maintained: "It follows from what has preceded, that law made judicially must be found in the general grounds or must be found in the general reasons, as detached or abstracted from the specific peculiarities of the decided or resolved cases. . . . The general reasons or principles of a judicial decision (as thus abstracted from the peculiarities of the case) are commonly styled by writers of jurisprudence, the ratio decidendi." (Austin, Jurisprudence (5th ed. 1885), p. 627). Wambaugh maintained that "the reason for the decision, the ratio decidendi, must be a general rule without which the case must have been decided otherwise." (Study of Cases, (2d. ed. 1894), pp. 17-18). John Salmond asserted: "A precedent, therefore, is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi." (Jurisprudence (7th ed. 1924) 201). Professor Prof. Morgan described it as "those portions of the opinion setting forth the rule of law applied by the court, the application of which was required for the determination of the issues presented, are to be considered as decision and as primary authority in later cases in the same jurisdiction." (The Study of Law (1926) 109). Goodhart reasoned that "(t)he principle of the case is found by taking account (a) of the facts treated by the judge as material, and (b) his decision as based on them." (Goodhart, "Determining the Ratio Decidendi of the Case" in Essays in Jurisprudence and the Common Law, p. 38). Glanville Williams defined the ratio as "the rule of law upon which the decision is founded' (Williams, Learning the Law (1982, 11th ed.) p. 66). Karl Llewellyn opined: "The court can decide the particular dispute only according to the general rule which covers a whole class of of like disputes."(The Bramble Bush, 1951, p. 42) According to Lord Halsbury, "It may be laid down as a general rule that that part alone of a court of law is binding upon courts of coordinate jurisdiction and inferior courts which consists of the enunciation of the reason or principle upon which the question before the court has been really determined. This underlying principle which forms the only authoritative element of a precedent is often termed the ratio decidendi." (18 Halsbury, Laws of England 210.) Professor Montrose suggested that the expression ratio decidendi is used in two senses either of which is referred to as a 'rule of law'. (Montrose, Annual Law Review of Western Australia, (1953), p. 19). Rupert Cross defined it thus: "The ratio decidendi of the case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him or a necessary part of his direction to the jury." (Precedent in English Law, 3d. ed. paperback, 1979, at p. 76).

(15) There have been a number of disagreements concerning what the ratio is or means. Hence, Glanville Williams pointed out: "It (the ratio) may mean either (i.) the rule that the judge who decided the case intended to lay down and apply to the facts, or (ii.) the rule that a later court concedes him to have had the power to lay down. (Williams, ibid., p. 75). Moreover, Professor Julius Stone argues that there exist "a range of alternative rationes decidendi competing inter se to govern future situations and as among these, only future decidions will show which is binding." (Stone, Legal Systems and Lawyer's Reasonings, p. 274). This contradicts the conventional view of there being a single ratio subject to the effects of distinguishing and overruling. Thus Raz, in describing the practice of judicial precedent in England, described the ratio as simply the reason for the decision, what the court in its opinion "can be said to have held or presented itself as holding." (Raz, "Law, Morality and Authority", The Monist, 68 (1985), p. 313). On the other hand, Professor Montrose focussed on another kind of disagreement. Thus, the two senses (mentioned in footnote ix) he pointed out as found in the use of the expression ratio decidendi: (i.) the rule of law for which the case is binding authority', or (ii.) the rule of law found in the opinion of the judge, forming the basis of his decision.' (Montrose, Annual Law Review of Western Australia, (1953), p. 19).

There has also been much disagreement as to the correct formula for extracting or formulating the ratio. Thus, Wambaugh, in providing what he terms as 'the four keys to the discovery of the doctrine of a case', listed them down as follows: "(1) the court must decide the case before it; (2) the court must decide in accordance with a general doctrine; (3) the words used by the court are not necessarily the doctrine of the case; (4) the doctrine of the case must be a doctrine that is in the mind of the court." (Wambaugh, ibid., p. 29). Professor John Chipman Gray, on the other hand, supplied these guidelines: "It must be observed that at the Common Law not every opinion by the judge forms a judicial precedent. In order that an opinion may have the weight of a precedent, two things must concur: it must be, in the first place, an opinion given by the judge, and, in the second place, it must be an opinion the formulation of which is necessary for the decision of a particular case; in other words it must not be obiter dictum." (Gray, ibid., p. 261). Goodhart was more elaborate: "The rules for finding the principle of the case can, therefore, be summarized as follows: (1) The principle of a case is not found in the reasons given in the opinion. (2) The principle of the case is not found in the rule of law set forth in the opinion. (3) The principle is not necessarily found by a consideraiton of all the ascertainable facts of the case and the judge's decision. (4) The principle of the case is found by taking account (a) of the facts treated by the judge as material, and (b) his decision as based on them. (5) In finding the principle it is also necessary to establish what facts were held to be immaterial by the judge, for the principle may depend as much on exclusion as it does on inclusion." (Goodhart, ibid.)

(16) H. Wechsler, "Toward Neutral Principles of Constitutional Law", Harvard Law Review Vol. 73, 1959, p. 1. See also the symposium on judicial reasoning in Sydney Hook, ed., Law and Philosophy, particularly the articles of E. Levi. "The Nature of Judicial Reasoning", 263-381, P. Freund, "An Analysis of Judicial Reasoning", pp. 282-289, H. Wechsler, "The Nature of Judicial Reasoning", pp. 290-300, and L. Henkin, "'Neutral Principles' and 'Future Cases'", pp. 301-309.

(17) Equality is a legal principle enshrined in the Philippine constitution. Art. III, Sec. 1, which embodies both the due process and equal protection standards, reads: "No person shall be deprived of life, liberty and property without the due process of law and no one shall be denied the equal protection of the laws." (emphasis supplied) Indeed the standard of equal protection has jurisprudentially been articulated in a form which reflects the universalizabiilty requirement. Justice Laurel in People v. Vera (65 Phil. 56 [1937]) held that "the classification, . . ., to be reasonable must be based on substantial distinctions which make real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only, and must apply equally to each member of the class." (at p. 126)

The requirement of impartiality, embodied both in the due process and equal protection constitutional principle cited above, has also been jurisprudentially recognized. Justice Dizon (Gutierrez v. Santos, 2 SCRA 249 [1961]) asserted that "every litigant is entitled to nothing less than the cold neutrality of an impartial judge." (at p. 254). Justice Fernando, in Azucena v. Munoz (33 SCRA 722 [1970] had this to say about impartiality. It is thus expected of a judge that "he should at all times manifest depth and legal concern to the cause of justice according to legal norms, a cerebral man who deliberately holds in check the tug and pull of purely personal preferences and prejudices which he shares with the rest of his fellow mortals." (at p. 723). In an earlier case, Conde v. Superable (29 SCRA 727 [1969]), these were Justice Fernando's words: "Like every human being, a judge is subject to the influence of prepossessions and preferences, at times deeply and intensely felt. Nonetheless, the moment one wears the judicial robe, his personal likes and dislikes should be brought under the strictest control. His guiding principle should be one of the utmost objectivity. That is the ideal; it must, as much as possible, be lived up to. Otherwise, he fails in his grave responsibility: he is recreant to his trust." (at p. 728)

(18) "But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should never be interpreted in such a way as to cause injustice as this is never within the legislative intent. An indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to render injustice." (pp. 264-265)

The Supreme Court had this to add in the very same page: "As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded, yielding like robots to the literal command without regard to its cause and consequence. 'Courts are apt to err by sticking too closely to the words of a law," so we are warned by Justice Holmes again, 'where these words import a policy beyond them.' While we admittedly may not legislate, we nevertheless have the power to interpret the law in such a way as to reflect the will of the legislature. While we may not read into the law a purpose that is not there, we nevertheless have the right to read out of it the reason for its enactment. In doing so, we defer not to the 'the letter that killeth' but to 'the spirit that vivifieth' to give effect to the lawmaker's will." (p. 265)

(19) The full text of Article III, Section 6 of the Philippine Constitution reads: "The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety or public health, as may be provided by law."

(20) The principles of International Law appealed to are found in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, both of which have been ratified by the Philippines.

The Universal Declaration provides:

"Article 13. (1) Everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to the country."

Similarly Article 12 of the International Covenant on Civil and Political Rights, which had been ratified by the Philippines, provides:

"1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (order public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own country."

(21) Article II, Section 2 reads: "The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations."

(22) The relevant provisions of Article II, on Principles and Policies, read:

"Section 4. The prime duty of the government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military, or civil service."

"Section 5. The maintenance of peace and order, the protection of life, liberty and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy."

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