Essays by Muhammad Faisal ul Islam

JUDICIAL ACTIVISM
Outline:
1. Introduction 2. Judicial Activism vs. Judicial Restraint 3. Origin and Historical Fruition of Judicial Activism

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Marbury vs. Madison Case Dred Scott vs. Sandford Case Plessy v Ferguson Case Theories of Judicial Activism • Theory of Vacuum Filing • Theory of Social Want Judicial Activism in Pakistan 1) Historical Background • Moulvi Tameez ud Din, Dosso and Nusrat Bhutto Cases • Judges Case • Legal Reforms Ordinance 2) Current Scenario Legal Status of Judicial Activism in Pakistan a) Principle of Tri-chotomy' and Theory of Vacuum Filing b) Suo Moto Notices U/A. 184 (3) c) Judicial Review Power d) Custodian of constitution is apex court e) Supreme Court is guardian of Fundamental Rights of people f) Precedents from Globe e.g. USA and India Factors That Triggered Judicial Activism in Pakistan 1) Mal Performance of Executive and Legislature o Punjab Bank Scam o NICL scam o Hajj corruption o Ephedrine scam o Sugar Crisis 2) Failures of Legislature and Executive to Deliver the Goods o NRO o 17th Amendment o Ambiguity in Laws o Inhuman Treatment in jails o Cases of Missing Persons 3) Inactive and Ineffective System o Corruption o Redtapism o Foreign Interference and Influence in Domestic Affairs

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Judicial Activism – a blessing or a curse 9. Justification of Judicial Activism in Pakistan 1) Protection of Fundamental Rights of people 2) Check on Extra-constitutional Acts of Administration 3) Political Adventurism 4) Public Awareness Against Injustices 10.Essays by Muhammad Faisal ul Islam 4) Violation of Fundamental Rights of people o Target Killing o Terrorism and Suicide Bombing o Kite-strings o Cases of bonded Labour o Inhuman Treatment in Jails 5) Misuse and Abuse of The Provisions of The Constitution 6) Other Factors 8. Conclusion Prepared by: by: Muhammad Faisal ul Islam Advocate Cell: 03336587420 .

To clarify this confusion. legislature. Executive and Judiciary. Hence it is the branch which is supposed to be totally impartial and apolitical. These three functions are performed by three organs which are called Legislature. It is seen as the opposite of judicial activism. On some occasions it is also seen as the intrusion of judiciary in the matters of legislature and executive. It encourages them to show restraint when striking down laws which it deems as unconstitutional. This aspect. JUDICIAL ACTIVISM VS. has given rise to the dual concepts of judicial activism and judicial restraint. Bradley Canon tried to define six parameters on which judges can be termed as activist. Judicial Restraint: Judicial restraint encourages the directors or judges not to misuse their powers. In cases when a law is interpreted in a wrong way. judiciary is the component responsible for the resolution of disputes regarding law and order of the country. However. sometimes. Same can be observed in the democratic setup of Pakistan in which all the functions of the state are divided into three parts: making of laws. execution of laws and to do justice. Though there should be close harmony between the various departments but none should have total autonomy. JUDICIAL RESTRAINT: The spot-on concept of judicial activism can be better understood and realized by analyzig the meaning of the term: judicial restraint and judicial activism. Each department’s authority should be checked by other department so that none can find opportunity to misuse its powers. Judicial Activism: Judicial activism is a concept which encourages judges to move away from strictly following the law to encourage good and progressive policies. executive and judicial powers are distributed among different organs of government and each organ exercises them separately and independently. Every country irrespective of the form of government prevalent there has its own judiciary. However there is considerable confusion in understanding the exact meaning and spirit of the term.Essays by Muhammad Faisal ul Islam JUDICIAL ACTIVISM INTRODUCTION In every democratic country. Legislative. These were Prepared by: by: Muhammad Faisal ul Islam Advocate Cell: 03336587420 . Among all these organs. in recent times. the role of judges and courts as the custodians of justice becomes important. the laws of a country are written in such a way that they may be open to interpretation in different ways. It is expected to take place for causes which will further social well-being. It is not consistent with the notion that judges have to exercise restraint in executive matters. executive and judiciary are seen as the three most important units which play a vital role in the administration of the country.

This ruling further infuriated the blacks resulting in the American civil war and the abolition of slavery. Individual rights to property and the freedom to make contract were the guiding principles upon which the courts started working. In 1857. Madison.Essays by Muhammad Faisal ul Islam Majoritarianism: This parameter measures the number of policies which are passed by legislative process but overturned by judiciary. Marbury was appointed by an outgoing American president as Judge but his warrant of appointment wasn’t delivered. HISTORICAL FRUITION OF JUDICIAL ACTIVISM Judicial activism is not a new phenomenon. Substance/ Democratic Process: This parameter looks into the number of times a judicial decision has resulted in the making of a substantive policy as opposed to number of times it is done to preserve a democratic political process. If judicial activism is not handled properly or done with biased intentions or for one’s own private gains it may also result in conflicts and social change. when Justice Marshall of the United States decided the celebrated case of Marbury vs. After these the American judiciary started playing a more prescriptive approach than proscriptive. Justice Taney ruled in the Dred Scott vs Sandford case that Negroes and whites were not equal and that Negroes should not be given the rights guaranteed in the constitution. The earliest seeds of its growth can be found about two hundred years ago. the Judiciary Act of 1979 on which Marbury was basing his claims. Warren also ruled that there will be no segregation in Prepared by: by: Muhammad Faisal ul Islam Advocate Cell: 03336587420 . This was the birth of judicial activism and judicial review. it has grown over time with the failure of the executive to fully cope with the aspirations of the people becoming increasingly conscious of their rights in a fast changing world. Interpretive Fidelity: This parameter sees how often a law has been understood in contrary to the meaning intended by the drafters of the constitution or the language used therein. Specificity of Policy: This parameter measures the number of times a judicial decision results in a policy and not left to the discretion of other agencies. was unconstitutional. Interpretative Stability: This parameter measures the extent to which a court changes the earlier verdicts. Several welfare laws were struck down because they put a restriction on number of working hours of the labourer. In this case Chief Justice Earl Warren scrapped the ruling stating that blacks must be segregated but given equal rights because they ruled that it was based on racial discrimination. From 1898 to 1937. When Marbury asked the Supreme Court to force the Secretary of State Madison to issue them. The next major case of judicial activism was observed in 1896 in the Plessy v Ferguson case. He said that the claim violated the American Constitution which formed the basis for the laws. Availability of Alternate Policymaker: This parameter measures the extent to which a judicial decision has overruled or hindered serious consideration of the same problem by other government agencies. doctrines or constitutional interpretations. Chief Justice Marshall dismissed it saying that. 50 enactments and 400 state laws were declared unconstitutional in America.

Those who supports the theory believes that judicial activism results in the transformation of the society. So the so called hyper-activism of the judiciary is the result of the vacuum created by the legislature and the executive. it was made mandatory that elections would be held on party basis. it becomes necessary for the judiciary to take proper steps and solve the problems. judiciary doesn’t have any option but to expand its powers and fill the vacuum. the presence of inaction and laziness of any one organ of the governance results in creation of power vacuum. when Gen Zia lifted the Martial Law. Pakistan’s judicial history is replete with cases like overturning of Maulvi Tamizuddin’s appeal. things changed after 1985 and judiciary began to be active in Pakistan. lack of discipline and character and do nothing policy from the two organs of our governance viz. As a result it is not being allowed to continue and other forces may expand and fill the vacuum. in spite of the executive’s strong pressure. JUDICIAL ACTIVISM IN PAKISTAN As already identified. judicial activism became prominent because of PIL. When the existing legislations didn’t solve the issues of the country. In Pakistan. Theory of Vacuum Filing: According to the theory of vacuum filing.Essays by Muhammad Faisal ul Islam schools and all public places. THEORIES OF JUDICIAL ACTIVISM There are basically two theories of judicial activism if we consider the criterion of its origin and evolution. In the Saifullah case in 1988. In the case of judicial activism the vacuum results from the incompetence. Dosso’s case and the Nusrat Bhutto case. Theory of Social Want: According to this theory the existing legislations unsuccessful coping of the issues of the country results in judicial activism. By a very active interpretation of Article 17 of the Constitution. inability. However. If any such vacuum is created. Later. it should be filled and the third organ of the governance viz. It has also been helped by the Constitution Act. where the judiciary bowed to the executive’s pressure. Since the vacuum is created. As a result judicial activism takes birth. 2-A) as substantive part of the constitution. the executive and the legislature. restored the 1973 constitution by making the Objective Resolution (Art. it is against the well-being of the nation and may work as a disaster for the country’s democratic setup. These were the major cases which were seen as early examples of judicial activism before the trend caught up in other parts of the world. This has increased people’s expectation from courts of ensuring a better administration by giving appropriate directions. the Nawaz Sharif Prepared by: by: Muhammad Faisal ul Islam Advocate Cell: 03336587420 . the LHC and the SC both declared that the Junejo government was dissolved unconstitutionally. The last method by which they can do it was to provide non-conventional interpretations of the existing legislations so that they can use it to improve the conditions or to solve the problems. 1973 which gave more importance to directive principles.

Even the courts could take suo moto notice or any person could file a petition to draw the attention of the court about infringement of any of the fundamental rights. the SC declared that the Chief Justice of Pakistan would have primacy in the appointment of judges to the superior judiciary. the Chief Justices Committee was formed. Ephedrine scam. which separated the judiciary from the executive at the lower level. cases of missing persons. regarding the appointment of judges. Had the SC interpreted the article textually. and rulings on scores of other public issues were widely welcomed by the public already wary of bad governance of the present rulers.Essays by Muhammad Faisal ul Islam government was restored in 1993. it was in 1996 that two landmark cases changed Pakistan’s political landscape decisively. The “consultation” with him by the executive. Then in the path breaking “Judges Case” of March 29. which had been tacitly supported by ever government in order to enjoy political clout. the case should have been heard by a High Court at first instance. This ordinance rectified an anomaly and aberration in our democracy. inhuman treatment in jails. which routinely castigated executive excesses publicly. Justice Sajjad Ali Shah thus brought about a “one man judicial revolution” in the country. by repeated instructions to the effect. But this suo moto jurisdiction of the courts was regarded by some legal circles as too arbitrary since it freed the courts from all procedures and precedents. The introduction of the above said and future reforms. later indirectly closed the doors of the traditional legal system.” This case has effectively put an end to the executive practice of appointment of judges to the higher judiciary by over-riding the advice of the Chief Justice of Pakistan. would have to be “purposive. Hajj corruption. Public Interest litigation (PIL) became common. First. One major benefit of judicial activism was that it gave relief to millions of poor and helpless people who were unable to knock the doors of the courts for relief. The fact remains that the Parliament can dilute the powers and functions of the judiciary by amending the constitution but such amendments themselves are open to judicial review. NICL scam. and relief to the public was given by freely invoking the Fundamental Rights enshrined in the constitution. cases of bonded labour. A novel committee. Thus it became common that the proceedings initiated through suo moto powers for the violations of fundamental rights used to be converted into a petition under Art 184-(3). meaningful and consensual. Thus the period from 1990 to 1996 was the golden period of development of PIL. the Supreme Court. 1996. LEGAL STATUS OF JUDICIAL ACTIVISM IN PAKISTAN The first argument against uncomfortable kind of judicial activism was brought forward in the name of ‘principle of tri-chotomy' of powers and sovereignty of parliament as contained in the constitution of Pakistan under which the Apex Court had to respect the Parliament and the executive. 1996. They forget that to fill the vacuum resulting from any legislative-executive mal- Prepared by: by: Muhammad Faisal ul Islam Advocate Cell: 03336587420 . Similarly the suo moto cases regarding the random crimes of heinous nature. forced the government to promulgate the Legal Reforms Ordinance. However. deaths by kite-strings.

cases of missing persons. cases of bonded labour. It has laid just standards of procedure. foreign interference and influence in our domestic affairs and national politics. It has carried forward participative justice. Factors That Triggered Judicial Activism in Pakistan: Judicial activism is gaining prominence in the present days. It is for the apex court to decide whether the matter is important enough or not. which is its original jurisdiction and the actions are initiated as suo moto. suicide bombing. and rulings on scores of other public issues are all outcome of the malpractices of our executive and legislatures. In the form of Public Interest Litigation (PIL). 1. any executive or judicial authority to reach a just decision. Violation of Fundamental Rights of People: Fourthly. call for any document. Prepared by: by: Muhammad Faisal ul Islam Advocate Cell: 03336587420 . it has arisen also due to the fact that there is a doubt that the legislature and executive have failed to deliver the goods. Loopholes in Existing Laws and Punishments: Last but not least. orders and decrees and can secure the attendance of any person. the loopholes in existing laws and punishments have also aggravated the situation. cases of bonded labour. Ephedrine scam. 3. NICL scam. in the recent past. The judiciary has shed its pro-status-quo approach and taken upon itself the duty to enforce the basic rights of the poor and vulnerable sections of society.e. Punjab Bank Scam. Mal Performance of Executive and Legislature: Judicial activism has arisen mainly due to the failures of the executive to act i. Normally judicial activism is being exercised by the Supreme Court under Article 184. sugar crisis. it occurs because the entire system has been plagued by ineffectiveness and inactiveness owing to corruption. NRO. inhuman treatment in jails and all the other recent scams and crisis are attributed to the legislature and executive utterly. the judiciary has to assert itself by providing relief to the sufferers of tyranny and by interpreting laws. kite-strings. For example in target killing. The real power of activism comes with Articles 187 and 190 by virtue of which the Supreme Court issues all such directions. Failure of Legislature and Executive to Deliver the Goods: Secondly. which are either deficient or vague. Miserably. poverty and price hikes. It has made justice more accessible to citizens". the violation of basic human rights has also led to judicial activism. Judiciary has become the centre of controversy. Hajj corruption.Essays by Muhammad Faisal ul Islam functioning. ambiguities in supplementary laws. The area of judicial intervention has been steadily expanding through the device of public interest litigation. redtapism. inhuman treatment in jails 5. It empowers the court to make an order if it ‘considers' that a question of public importance is involved or the fundamental rights are violated. citizens are getting access to justice. 2. 17th Amendment in the constitution of Pakistan. Ineffective and Inactive System: Thirdly. the misuse and abuse of some of the provisions of the Constitution. 4. by progressive interpretation and positive action. on account of the sudden judicial intervention. judicial activism has gained significance.

people are losing their faith in the governmental mechanism and in political leadership. But flaws in the executive and the legislature are not alone. As per Daily Dawn's opinion appeared on 24th December 2009: ‘Given the broken system of governance in many areas. the court may on its own try to expand its jurisdiction and confer on themselves more functions and powers JUDICIAL ACTIVISM – A BLESSING OR A CURSE: Against Judicial Activism: Due to judicial activism which is having a deteriorating impact on the democratic order. Several media reports alleged that Supreme Court was waging a campaign of judicial activism. However. Due to this they are viewing even the prime minister suspiciously. It is argued that this judicial activism would undermine the authority of parliament and the executive and thus weaken democracy. When the party in power misuses the courts of law for ulterior motives as was done during the Emergency period.Essays by Muhammad Faisal ul Islam 6. When the governments fail to protect the basic rights of the citizens or provide an honest. Other Factors: Besides the above mentioned factors. The national and international media discussed all aspects of the court’s recent actions in detail. As from the theories we know that they signal the faults in our judicial system. The critics of judicial activism call it as an abuse to PIL. judicial intervention is probably necessary in many instances. Speaking truly. efficient and just system of law and administration. they are charged with having a political agenda and are labelled with judicial activism. the judges must pay heed to the fact that along with duties Prepared by: by: Muhammad Faisal ul Islam Advocate Cell: 03336587420 . But there is a thin line between wanted judicial intervention and unwanted judicial activism that encroaches on domains of the other institutions of the state. In case of a hung parliament where the government is very weak and instable. And if they do. there are some other situations that lead to judicial activism. such judicial activism is the effect rather than cause of ineffective role of both parliament and the executive. pitting it (SC) against an elected civil government. they are accused of being docile and subservient to the rulers. ephedrine and many other cases. taking sue motto actions in NICL scam. the constitution has made the judiciary the guarantor of the fundamental rights of the people and given the superior judiciary wide-ranging suo motu powers. Clearly. So judicial activism comes into the picture to be in the limelight. These are: When the legislature fails to discharge its responsibilities. In Favour of Judicial Activism: The problem comes that if the courts remain silent on the questionable or unjust acts of the government and do not exercise their constitutional jurisdiction. Hajj corruption. and Finally. The apex court influenced powers of Chief Executive of the State in several cases. There are flaws in the judiciary system also.

. there are no two opinions that the Supreme Court of Pakistan wanted to inject spirit of judicial activism by describing ‘The Court wants that political institutions. the court could either validate or invalidate it. were reduced to 13. they also have a responsibility to fashion a stronger democratic and constitutional system. Vineet Narain v. At the start of 2006 there were 19.000 cases pending in higher judiciary which. The apex court also saved the Pakistan Steel Mills by striking down its illegal sell-off..somethingaboutthelaw. and above all decided a number of human rights cases of abduction.'). despite institution of fresh cases. The Supreme Court had to invalidate and reverse those acts. two additional judges were inducted on ad hoc basis.876 cases till the last day of December that year.' In our contemporary history our parliament remained silent over subversion of the constitution and dismissal of the judges by Gen Musharraf on 3rd November 2007. cancelled the conversion of public parks into commercial ventures (like McDonald's outlet in F-9 National Park Islamabad). imposed ban on kite flying (referred to case in Punjab province). To adjudicate maximum number of cases to clear the huge backlog. Whereas. gave ruling against the notorious custom of vani to stop the marriages of compensation. Pakistani higher judiciary in 2009 interfered to determine the appropriate price of sugar thus apparently leading to a conflict between the executive's and judiciary's realm of working and power. socio-economic development and political development'. Prepared by: by: Muhammad Faisal ul Islam Advocate Cell: 03336587420 . Validation of the NRO was not possible because the sitting PPP government could not get it through its own elected Parliament. Union of India). The idea was probably imported from India where it was upheld by various Supreme Court judgments (Vishaka v. Similarly. Referring to http://www. elected representatives and government officials should perform their duties in a befitting manner which was very critical for good governance.. elopement. A Human Rights Cell was also established in the Supreme Court. State of Rajasthan. we preferred to move a step further. However.Essays by Muhammad Faisal ul Islam to the people. An International Judicial Conference was also held in Islamabad in August 2006 as part of the 50th anniversary celebrations of the Supreme Court of Pakistan in which about 75 delegates from 35 countries of all the continents participated.com/. stopped a number of projects hazardous to the environment. Even in India there was lot of criticism on such judicial verdicts (‘Shubankar Dam: Judges as Law Makers. ordered the authorities to recover the missing persons (specially pointing towards selling off certain people to the US by Gen Musharraf). marriages out of free will. detention. the Supreme Court had held that questions of policy would not be interfered with and were the specific domain of the executive. torture and murder under the suo moto jurisdiction. activated state machinery against the flow of counterfeit and bogus drugs. which received hundreds of applications and complaints and the office of the Chief Justice issued appropriate orders on most of them. To an extent it meant that the judiciary could even make law and implement when the other branches fail to do so. when the NRO came up for hearing in the Supreme Court. In India. directed for closure of substandard private institutions and medical colleges (Baqai Medical College Islamabad was one of them).

Hence. He provided sue moto relief in the famous Feroza Begum case when he ordered the release of a tortured MQM worker. Their criticism needs an analysis because rationally judiciary should continue to be an active player in the politics of Pakistan. Source of Encouragement for Other Institutions: Moreover. Hence. Its primary concern is to ensure the obedience of law in the country. First. a gap is created. the job of executive will remain unfulfilled. whose mother was being forced to change her party loyalties. When the executive is not carrying out its job properly. Second. Activism In Aid Of the Oppressed: Perhaps the brightest side of Pakistan’s tryst with judicial activism is the increased relief being provided to common citizens in the shape of Public Interest Litigation and suo moto notices. there are some people who appreciate it. its role in the politics of Pakistan has become controversial. Sluggishness and careless attitude will be their significant features. the check of judiciary on them will force them to accomplish their jobs. He also stood up against the building mafia. In Pakistan judicial activism is justified on the following grounds. It has dual role.Essays by Muhammad Faisal ul Islam JUSTIFICATION OF JUDICIAL ACTIVISM IN PAKISTAN Since the restoration of judiciary in 2009. because of judiciary’s active performance of its role arise the natural tendency of institutions to feel their responsibility and carry out their jobs. They will need time to gain the experience or show their efficiency as there is no guarantee of their tenure’s completion. Yeah. Checks on the Arbitrary Powers of Executive and Legislature: First of all it is the need of time. It will happen on two counts. Moreover. they won’t like to go against the footsteps of their predecessors. it is a possibility but it won’t yield well even if it is materialized. In this case the tasks of executive have to be carried out by another institution. the bulk is of those who criticize it. Justice Nasir Aslam Zahid provided relief to thousands of illegally incarcerated youth during 1993-1996. the active performance of judiciary will be a source of encouragement for other institutions. It’s another very important job is to interpret the constitution and laws. On the other hand. It is so because the new members won’t be experienced and efficient. the timely dispensation of justice on behalf of judiciary will strengthen the belief of people in it. Here it can be said that the executive is a part of legislature and the non-functional cabinet or executive members could be replaced with other members already sitting in the parliament. However. it is need of the hour that judiciary continues to play an over active role. Dispensation of Justice: Furthermore. Whenever any of the two purposes is not fulfilled the judiciary will be needed to come forward. If judiciary is doing that there is no odd in it. Interpretation of Law in its True Spirit: No second opinion is in it that the formation of law is the job of legislature but the most important job after the Prepared by: by: Muhammad Faisal ul Islam Advocate Cell: 03336587420 . if the institutions still don’t bother about their assigned jobs. This is one of the biggest dilemmas of Pakistan’s judiciary that people don’t consider it worth consulting for getting justice. Some people criticize it for being over active.

the Supreme Court had cancelled the lease deal of a CDA Public Park for its subsequent conversion into mini golf club. But this era of judicial activism is a temporary one. in a suo moto notice had also directed the Ministry of Health and other authorities concerned to implement ban on smoking at public places. it is for the benefit of each and everybody without any distinction whatsoever. They argue that judiciary can’t be panacea for all evils.Essays by Muhammad Faisal ul Islam formation of law is to interpret it in a way as it could fulfil its objects as well as its scope that is confined to judiciary. The support of the people is making judicial activism strong all the more. But if the judges are not loyal and are corrupt then it can also results in ruling which surpasses all logics because as Justice J. For example. In short.” Though. The court. This is being done only to misguide people. They openly say that the Court has trespassed its jurisdiction and has put on the mantle of the Executive. In our democracy the legislative. the biggest benefactor of the judicial activism are common people. NRO. the executive the judiciary and the media have their mutually reinforcing roles which cannot be urged by a single authority. Hajj Corription etc. CONCLUSION Judicial activism if used by judges who are loyal with their work can act as one of the most powerful tools for Pakistan’s judiciary system. the Supreme Court on 15th December 2006 had ordered the private medical colleges to comply with the criteria of Pakistan Medical and Dental Council (PMDC) and ruled that after 14th August 2007 no substandard institution would be allowed to function in country. during the year of 2006. The founding fathers of our Constitution were wise enough to give the sword of judicial review in the hands of the judiciary to keep the other wings of the government on the right track and to check them if they go astray. being contrary to fundamental rights of the general public. Not as a Rampuri knife which can kill. Harsh and exemplary action taken by the Apex Court against the so called high and mighty for their wrong doings has made the henchmen of the affected high-ups start a tirade against the Apex Court. Lot of high profile cases like conviction of Yousuf Gillani and cognizance of different cases i. If the judiciary keeps on taking action against the violations of laws consistently. a time will come when the practice of encroaching upon or trampling or violating the human rights will come to an end. Judicial activism is a good thing and every good thing is opposed tooth and nail because it hurts the vested interests of a few mighty and powerful. They are conveying a wrong impression that the Court has undermined the prestige of the Legislature and the Executive. Our Legislature and Executive have failed to wipe out tears from the eyes of the general public: they have given smiles to a few only but judicial activism had made smiles all pervasive. Judicial activism has enhanced the prestige of judiciary because it has lizoled our corrupt and foul smelling system to some extent and it has strengthened the belief and trust of the people in democracy. This is what the Apex Court is doing today. Prepared by: by: Muhammad Faisal ul Islam Advocate Cell: 03336587420 .Sharma of India has referred: “Judicial activism is a sharpedged tool which has to be used as a scalpel by a skilful surgeon to cure the malady. In another case. missing persons. This task can be performed in a befitting way only by the judiciary. is taken because of judicial activism.S.e.

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