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ABD AL-RAZZAQ AL-SANHURI LECTURE
ISLAMIC LEGAL STUDIES PROGRAM
HARVARD LAW SCHOOL
6 November 2008
HARMONISATION OF COMMON LAW AND SHARI’AH IN MALAYSIA: A PRACTICAL APPROACH
By
Abdul Hamid Mohamad
(Rtd.) Chief Justice of Malaysia
I thought that my visit to Harvard last year to attend my
daughter’s graduation was going to be my first and last visit here. However,
thanks to Professor Baber Johansen, whom I had not even met until I arrived here
two days ago, that was not to be. Professor Baber Johansen invited me to deliver
a lecture named after a person whose name I had not even heard before I received
the invitation. This is the greatest gift for my retirement.
Not being an academician, I choose to speak about something I have been involved
in for nearly twenty years in the area that later came to be referred to as
“harmonization of the common law and Shari’ah”, and that too, only from the
Malaysian experience.
In fact, when we started doing it and when we were doing it, the word
“harmonization” did not even cross my mind. I did think of the word
“Islamization” after reading a book from Pakistan. There was no mention of the
word “methodology” either. We were just doing what needed to be done. The
Shari’ah Courts had been established as provided by the Federal and the State
Constitutions. The courts have to have laws, substantive and procedural. The
laws have to be Shari’ah-compliance and codified. The Islamic scholars and the
Shari’ah court judges could not produce a draft that could be enacted as
laws. They also had no expertise and experience in drafting bills to be enacted
as laws by Parliament and the State Legislative Assemblies. So, the common law
lawyers headed by the late Professor Ahmad Ibrahim (a Cambridge trained lawyer)
and Judges of the Shari’ah courts sat down together to draft the laws. Being a
State Legal Advisor (State Attorney General), I was then involved until now,
though, over the years, in different capacities according to the positions that
I held during the period. We decided to take the existing laws that were
currently in use in the common law courts as the basis to work on, remove or
substitute the objectionable parts, add whatever needed to be added, make them
Shari’ah-compliance and have them enacted as laws. In fact, the process and that
“methodology”, if it can be so called, continue until today.
It is also a shame that, at that time, I had not even heard the name of Abd al-Razzaq
al-Sanhuri. If I could be excused, even the Al-Azhar graduates in the committee
did not mention his name. Abd al-Razzaq al-Sanhuri deserves to be known and his
works deserves to be appreciated.
Ladies and gentlemen,
Before going any further, let me give you a brief background of the
circumstances in Malaysia that had led to the present position so that you can
appreciate its peculiarities.
Islam came to the Malay Peninsular in the 14th century by peaceful means i.e.
through Muslim traders from Yemen and India. Some scholars say Islam came to the
Malay Peninsular through China. We shall leave it to the historians to debate.
The Malay Sultans converted to Islam and the population followed suit. Over the
years, the word “Islam” became synonymous with the word “Malay”, the race.
Hence, until very recently, when a non-Malay converted to Islam, he or she was
said to have “masuk Melayu” (literally, “enter Malay”), not even “enter Islam”.
So strong is the Malay-Islam relationship that even the Federal Constitution
defines “Malay” as a person who professes the religion of Islam, habitually
speaks the Malay language and conforms to Malay custom. In other words, the
first test of a person’s race is his religion. You may not find a similar
provision in any other constitution in the world.
Interestingly, the Malaysian Constitution was drafted by common law judges and
lawyers including Lord Reid and Sir Ivor Jennings. I remember how strong the
views of the Malays were on the issue at the time (1950s) when the Federal
Constitution was being drafted. The Malays would not have accepted the
Constitution had Islam not been made an ingredient in the definition of “Malay”
and had Islam not been declared to be the religion of the Federation.
Going back in history, in 1511 the Malay State of Melaka was colonized by the
Portuguese, followed by the Dutch and the British. By the 19th century, British
colonization had spread throughout what is now Malaysia. They also introduced
the English common law and rules of equity and their legal and judicial system.
The British, directly or indirectly, also caused the immigration of Chinese and
Indians to the then Malaya and the two Borneo States that now form Malaysia. The
immigrants brought with them their religions besides their languages and
cultures. However, the Muslims remained the majority with slightly over 50% of
the population, even after the two Borneo States, i.e. Sabah and Sarawak joined
Malaysia in 1963.
Perhaps realizing the sensitivities of the Malays over their religion and
custom, the British left matters of Islamic religion and Malay Custom to the
Malay Rulers, or, for convenience, we shall call them “ Sultans”. There are nine
of them. Every five years they elect one of them, usually the most senior, to be
the King of the whole of Malaysia. So, our King is elected and he reigns for a
period of five years only. Then he goes back to his home State to continue to be
the Sultan of his state. One may say that instead of going to war as Kings had
always done throughout history, they queue up to become the King of the whole of
Malaysia. That is very civilized, isn’t it? Malaysia is a Federation of 13
States, nine with hereditary Sultans and four without.
Being a Federation, jurisdictions and powers have to be shared between the
Federation and the States. Even though Islam is declared to be the “religion of
the Federation” (Article 3), matters concerning Islam, following the model
during the British period, was left with the States. The Federal Constitution
declares the Sultan of each State to be the Head of the Religion of Islam in his
State. In the States without a Sultan, the King is the Head of the Religion of
Islam.
Coming now to the division of he legislative powers between the Federation and
the States, the Federal Constitution provides, for our purpose I shall only
refer to the Federal List and the State List. The Federal List covers almost all
laws, civil and criminal. But Islamic law, except for the ascertainment of
Islamic law for Federal purpose, is a State matter. Non-Muslim family law is a
Federal matter falling within the jurisdiction of the common law courts. Family
law of the Muslims is a State matter within the jurisdiction of the Shari’ah
Courts. Criminal law, tort, contract, land law and others are Federal laws
applicable to both Muslims and non-Muslims alike. The division looks neat.
Perhaps even the learned drafters of the Constitution did not envisage that
there would be conflicts even of laws, what more conflicts leading to religious
and racial tensions.
We cannot blame the drafters of the Constitution. In 1957 (the year of
independence), the Muslims were mainly Malays living in the rural areas.
Inter-marriages were very rare. In any event, when a non-Muslim wanted to marry
a Muslim he or she converted to Islam. (My wife is one of them). Almost
everybody accepted that the law of the country, civil and criminal, was the
common law of England as modified, either by the legislature or the court, to
suit the local circumstances. Islamic law was only applicable to Muslims and,
even then, restricted only to matrimonial matters, inheritance and in regard to
the administration of mosques, waqf and the like. Criminal law, based on the
English common law as codified in India, was already in place. The only offences
that the States are allowed to legislate were and are offences “against the
precepts of Islam” and only applicable to Muslims. Similarly, the English law of
Contract, law of Evidence and others, which had been codified in India were
introduced in Malaysia. At that time, Islamic banking, Islamic finance and
“takaful” were unheard of.
Indeed, in a landmark judgment of the Malaysian Supreme Court, the court clearly
said that Malaysia was a secular State and that Islam was only relevant for
ceremonial purposes. (Wan Jalil Bin Wan Abdul Rahman & Anor v Public Prosecutor
( [1988] 1LNS 150)
However, one of the first indications of conflict of laws and jurisdictions
between the common law courts and the Shari’ah courts arose over the issue of
custody of a Muslim child. (Myriam v Arif ([1971] 1 LNS 88; [1971] 1 MLJ 265).
Prior to the establishment of the Shari’ah courts, custody of children, Muslims
and non-Muslims, was within the jurisdiction of the common law court. When the
Shari’ah courts were established, the jurisdiction over custody of Muslim
children was given to the Shari’ah courts. That is as clearly as provided for in
the Federal Constitution and was perfectly valid. However, the old law was not
amended. An application was made in the High Court (i.e. the common law court)
for a custody order of a child of a Muslim couple, even though the mother was an
English girl who had converted to Islam. The High Court held that it had
jurisdiction to make the order and gave custody to the mother. Even though in
that case the matter ended there, to avoid conflicting orders being made by the
common law court and the Shari’ah court over the same or similar matters in the
future, the Federal Constitution was amended. It was a very simple amendment. It
merely says that where the Shari’ah court has jurisdiction over a matter, the
common law courts do not have jurisdiction over it. Everybody thought the
problem was solved.
But, that was not to be. As later cases show the problems were more complex.
First, the subject matter may fall within the jurisdiction of the Shari’ah Court
but one of the parties is a non-Muslim and the Shari’ah court has no
jurisdiction over non-Muslims. Which court is to hear the case?
Secondly, in the same case there may be issues falling within the jurisdiction
of the common law courts and also issues falling within the jurisdiction of the
Shari’ah court. Which court is to hear the case? (I pointed out these problems
in 1996 when I was a High Court Judge in my judgment in Lim Chan Seng v.
Pengarah Jabatan Agama Islam Pulau Pinang Dan Satu Tindakan Lain (1996 MLJU
500).
Thirdly, in a case which on the face of it appears to be falling within the
jurisdiction of the Shari’ah court, there may be constitutional issues. I have
delivered two judgments of the Federal Court on this issue. (For clarification,
the “Federal Court” which is equivalent to the U.S Supreme Court, was renamed
“Supreme Court” but is now renamed “Federal Court” again. That is the work of
politicians, not judges). In those cases, I said very clearly: “Interpretation
of the Constitution is a matter for this court” - see Latifah Bte Mat Zin v
Rosmawati Binti Sharibun & Anor. F.C.C.A. No. 2 - 39 - 2006; Sulaiman Bin Takrib
v Kerajaan Negeri Trengganu & Anor, Federal Court Petition No.1 of 2006. That
issue is settled, I think.
Regarding the first and the second problems, time does not permit me to discuss
them in detail. Suffice for me to say that in the same High Court judgment
mentioned earlier (i.e. LimChan Seng) I suggested two ways to overcome the
problems. First, to combine the two court systems. Common law cases will be
heard by judges trained in common law and Shar’iah cases will be heard by Judges
trained in Shari’ah. Where a case involves both common law and Shari’ah issues,
it should be heard by two judges, one common law judge and one Shari’ah judge.
That judgment has often been quoted at conferences but it was not politically
feasible as it would involve amendments to the Federal and State Constitutions.
The States, especially those under “the opposition” Islamist party would
certainly not agree to hand over their powers over the religion of Islam to the
Federal Government under the National Front. At least, some of the Sultans would
not agree as it is seen as taking away their powers as Head of the Religion of
Islam in their respective States. So, the problem is really politics and not
law.
My second suggestion was to leave the courts as they are. However, cases in
which both Islamic law and common law issues arise, whether the parties are all
Muslims or not, should be heard by the common law court with two judges, one a
common law judge and one a Shari’ah judge. Even this suggestion is considered by
the politicians as “too sensitive”. So, the problems remain unsolved.
In the meantime, partly contributed by external factors such as the Iranian
revolution, the Gulf War, the rise of the Taliban, September 11, Osama Bin Ladin,
the “invasion of Iraq” (that is the way it is seen by the Muslims in Malaysia),
the victory of Islamist parties in other countries and even “the war against
terror”, Malaysia’s own Islamist party gained greater influence and success in
the general election. Now the party controls two States and is a member of the
coalition that rules three other States. In fact, even the Malay nationalist
party (the United Malay National Organization, one of he main partners in the
National Front that had ruled the country for fifty years) has also become more
Islamist than nationalist. So, the States want more powers to be given to the
Shari’ah courts.
Beside, every year, hundreds of graduates return to Malaysia from Universities
in the Middle East and Pakistan and other countries, majority of them on State
Scholarships, besides thousands who graduate from local universities in
Islamic-related subjects. Many of them end up as religious teachers, preachers
and even politicians. They too want a share of the high positions held by
graduates from Western Universities and their colleagues from other disciplines,
which were not available to them because of their qualification in Islamic
religious subjects only. (But, I must say that, in the last decade, a new group
is emerging. They are equally fluent in English, Arabic and Malay. They hold
degrees in both Shari’ah and law or in comparative studies from Islamic
universities using Arabic as the medium of instruction as well as from Western
universities, including Harvard. They are now in the Islamic banking, Islamic
finance and takaful sectors, internationally. They know where the money is and
it is not unholy to make money, to hold high positions and to have a good life,
a very welcomed development.)
All these have led to demands for more power to be given to the Shari’ah courts.
Two States went so far as to draft the “Hudud Law” but their implementations
were blocked by the Federal Government, constitutionally, I must say, correctly.
However, in revising the Islamic laws administered by the Shari’ah courts, more
offences were created, some of them overlap with the existing criminal law which
is a Federal matter within the jurisdiction of the common law courts. A good
example is sodomy. That offence overlaps with a similar offence under section
377A and 377D of the Penal Code. In one very famous case (Sukma Darmawan
Sasmitaat Madja v. Ketua Pengarah Penjara Malaysia & Anor [1999] 2 CLJ 707), the
accused person was charged in the common law court under section 377D of the
Penal Code. He challenged the jurisdiction of the common law court to try him
arguing that it was a matter within the jurisdiction of the Shari’ah court. He
relied on the amendment to the Federal Constitution which says that when a
matter is within the jurisdiction of the Shari’ah court, the common law court
has no jurisdiction over it.
We now see that the amendment that was meant to clarify the jurisdictional issue
was used to oust the existing jurisdiction of the common law court by creating
similar offences in the State law. The matter went up to the Court of Appeal.
The Court of Appeal held that the amendment did not apply. For it to apply the
Shari’ah court must have exclusive jurisdiction over the matter. This legal
issue has now been greatly politicized.
I was only a High Court Judge then. While I agree with the decision, I do not
agree with the reasoning. To me the newly created offence in the State law is
unconstitutional, it being “criminal law” under the Federal List and such an
offence had existed since before the Independence. Furthermore, Article 75 of
the Federal Constitution clearly provides:
“If any State law is inconsistent with a federal law, the federal law shall
prevail and the State law shall, to the extent of the inconsistency, be void.”
I should say something about the case of Latifah Binti Mat Zin (supra). Under
the Federal Constitution and the law, Letters of Administration and Distribution
of estate of a deceased person are within the jurisdiction of the common law
court. Islamic law regarding inheritance and gifts of Muslims are within the
jurisdiction of the Shari’ah court. A Muslim died leaving some properties. An
application for a Letter of Administration was made in the common law court. A
dispute arose whether money in a certain account in the name of one of his
widows was part of his estate or a gift to that widow. One of the beneficiaries
of the estate applied to the Shari’ah court for the determination of that issue.
The widow opposed it saying that since the matter involves Letters of
Administration, the issue should rightly be determined by the common law court.
Delivering the judgment of the Federal Court, I ruled that the determination of
the issue whether that money had been given away as a gift or was part of the
assets according to Islamic law was a matter within the jurisdiction of the
Shari’ah court to decide. The grant of Letters of Administration and the
distribution of the assets of the estate are matters within the jurisdiction of
the common law court. Both parties being Muslims, the application to the
Shari’ah court was rightly made. So was the application to the common law court.
Once the Sharia’h court determines the Islamic law issue, the common law court
would then make the distribution order in accordance with the order of the
Shari’ah court. Call it “harmonization”, if you like.
In that judgment, I pointed out that even though there was a way out in that
case, it requires two applications the be made, one in the common law court and
the other in the Shari’ah court. That causes delay and incurs additional costs.
Once again I called upon the Legislature to rectify the anomaly. “The trouble
is,” I said in that judgment, “everyone looks to the court to solve the problems
of the Legislature.”
Sulaiman Bin Takrib (supra) was my last judgment of the Federal Court delivered
three weeks ago. The accused persons, all of them professed to be Muslims, were
charged in the Shari’ah court for acting in contempt of a religious authority by
defying or disobeying the “fatwa” regarding the teaching and belief of one Ayah
Pin which was published in the Government Gazette of the State of Terengganu on
4th December 1997. In the Shari’ah court, that was clearly a “criminal case”.
They filed an application in the Federal Court for the determination of the
constitutional issue whether the offences created by the State Legislature were
ultra vires the Constitution. They argued that the offences for which they were
charged were outside the powers of the State Legislature to enact, they not
being “offences against the precepts of Islam” and they being “criminal law”
under the Federal List.
On the first point, while holding that interpretation of the Constitution was a
matter for the Federal Court, we reminded ourselves that we were interpreting
the words “precepts of Islam” used in the Constitution and not issuing a “fatwa”
on the “precepts of Islam”. We allowed affidavits of Islamic scholars to be
filed on what “precepts of Islam” means in the Islamic context. Since the
offences relate to “aqidah” or faith we held that they were offences “against
the precepts of Islam.”
On the issue whether those offences were “criminal law”, I said, inter alia:
“It was also argued that the offences are “criminal law” and therefore within
the Federal jurisdiction to legislate. I admit that it is not easy to draw the
dividing line between “criminal law” and the offences that may be created by the
State Legislature. Every offence has a punishment attached to it. In that sense,
it is “criminal law”. However, if every offence is “criminal law” then, no
offence may be created by the State Legislatures pursuant to Item 1, List II of
the Ninth Schedule. To give effect to the provision of the Constitution a
distinction has to be made between the two categories of offences and a line has
to be drawn somewhere. The dividing line seems to be that if the offence is an
offence against the precept of Islam, then it should not be treated as “criminal
law”…..
Considering the difficulty to draw the line between the two categories of
offences and the fact that the Supreme Court in Mamat Bin Daud (supra) too did
not attempt to lay down the principles for the distinctions to be made, I too
shall refrain from attempting to do it as I fear that it might do more harm than
good. I would prefer that the issue be decided on a case to case basis. However,
if, for example, a similar offence has been created and is found, in the federal
law, since even prior to the Merdeka Day, that must be accepted as “criminal
law”. But, where no similar “criminal law” offence has been created, then, as in
the case of Mamat Bin Daud (supra), the Court would have to decide on it.
In the instant case, as the offences are offences against the precept of Islam,
as there are no similar offences in the federal law and the impugned offences
specifically cover Muslims only and pertaining to Islam only, clearly it cannot
be argued that they are “criminal law” as envisage by the Constitution.”
Ladies and gentlemen,
I think I should now move to another aspect of the subject, i.e. the law. I have
touched briefly at the beginning of my speech (I still feel shy to use the word
“lecture”) how “we made” what is now known as “Shari’ah law” in Malaysia. The
main ones which are being used in the Shari’ah courts are:
- the Shari’ah Criminal Procedure Enactment/Act,
- the Shai’ah Civil Procedure Enactment/Act,
- the Shari’ah Court Evidence Enactment/Act,
- Shari’ah Criminal Offences Enactment/Act,
- Islamic Family Law Enactment/Act.
(The word “Enactment” is used when it is a State Law made by a State Legislature
for use in the Shari’ah courts in the State and the word “Act” is used when it
is made by Federal Parliament for use in the Shari’ah courts in the Federal
Territories)
The provisions of the Shari’ah criminal and civil procedure enactments/act are,
to a large extent, the same as those used in the common law courts. A graduate
in law from any common law country reading the “Shari’ah” law of procedure in
Malaysia would find that he already knows at least 80% of them. On the other
hand a graduate in Shari’ah from Al-Azhar might find that he knows only about
20% of them. Of course, there are more traditional Shari’ah or fiqh elements in
the Shari’ah Court Evidence Enactment/Act and even more in the Islamic Family
Law Enactment/Act. Still, a common law lawyer reading them for the first time
will find that he is reading something familiar, section by section, even word
for word. Yet they are “Isamic law”.
That brings me to an incident that had happened five or six years ago. One
afternoon, a young man came to my office. He said that he was from the
University of Istanbul and that his Professor had asked him to see me when in
Malaysia. (His Professor was no other than Professor Sukru Ozen who was here a
few years ago.) I welcomed him. He said he was a Phd. student and wanted to
interview me for his thesis. The first question he asked me was: “What is your
definition of Islamic law?” Almost without thinking, I replied: “Any law that is
not un-Islamic”. After he returned to Istanbul, he sent me an email. Among other
things, he said: “How I wish that all our ulama’s (Islamic scholars) are as
broad-minded as you are.” I replied: “The point is I am not an ulama’.”
Last year, I told the story to a group of Islamic scholars, I would call them
the “modern ones” from not less than ten countries, both East and West.
Everybody laughed. But, after a while, Professor Tahir Mahmood from New Delhi,
India came to me and said, “Your definition is not a joke, you know. There is a
lot of truth in it.”
Rightly or wrongly, putting “ibadah” aside, I have come to believe that that is
what “Islamic law” should be. We should focus more on substance and the
“maqasid” rather than the form. We should look to the sources for the principles
but the detail should be determined by the surrounding circumstance. A law need
not be medieval or Arabic to be Islamic. In fact, we can have even better and, I
would say, “more Islamic” laws compared to the law at the time of the Prophet
s.a.w. That statement may sound preposterous but please consider these two
examples.
First, suppose there were cars during the time of Caliph Umar Ibn al-Khattab, I
am quite sure that he would have made rules as to how they should be driven. Had
he done that, I am quite sure that today those rules would be known as the
“Shari’ah or Islamic Road Traffic law”. Had he fixed a speed limit, that might
be known today as the “Shari’ah or Islamic speed limit” and, probably, different
mazhabs would have different speed limits!
Secondly, take slavery as an example. No one in history, even one thousand years
later, had done more to improve the life and rights of slaves than Prophet
Muhammad s.a.w. and Islam. Yet, Islamic law did not outlaw slavery. That is
understandable considering the circumstances then. Now slavery is outlawed.
Would anyone say that outlawing slavery is un-Islamic? Would anyone say that a
modern Islamic state must reintroduce slavery to be Islamic? I have posed these
questions in Malaysia. No one had, so far, answered “Yes”. I believe that
outlawing slavery is more Islamic than tolerating it, no matter how improved
their lives are. It means that our present law can be different, better and at
the same time more Islamic than the law at the time of the Prophet s.a.w. So, to
determine whether our law is Islamic or Shariah-compliance or not, we should not
be looking backward one thousand five hundred years and compare whether our
present law is the same as the law then or not. The test should be whether it
contravenes any Shariah principle or not.
Indeed, over the past thirty years, that was what was being done in the field of
Islamic Banking, Islamic finance and takaful, perhaps, again without realizing
it. I have had the advantage of preparing the paper that suggested the
establishment of the Shari’ah Advisory Council of the Central Bank of Malaysia
and, when it was established, to be appointed as a member. (I call myself the
only non-Shari’ah member of the Shari’ah Advisory Council.)
Having sat in the Council for three years I find that that is exactly what is
being done: take a conventional product, identify the “Shari’ah issues”, look
for Shari’ah and/or fiqh principle that can be applied to validate or justify
the Shariah-compliance of the product. At times, different principles are
applied at different stages until the product becomes Shariah-compliance. So, we
can now have savings account, current account, credit cards, takaful, sukuk and
others, something unimaginable fifty years ago. I must admit that having been
trained to look at the substance rather than the form, at times, I find the
methodology rather artificial. But, since I am not an ulama’ and since the
ulama’s say that they are Shari’ah-compliance, I am not going to argue with
them. What more when they say that there is no other or better way that can be
done, at least for now.
So, I have become more convinced of my definition of “Islamic law”. And, I begin
to say to myself: a big chunk of the law that I am administering in the common
law court is not un-Islamic after all. Unfortunately, that is not the perception
of the majority of the Muslim ummah. The reason, I think, is that, those who
know common law do not know Islamic law and those who know Islamic law do not
know common law. I belong to the first category. However, as I have mentioned
earlier, things are changing. More and more people are studying both laws. Even
non-Muslims are taking keen interest in Islamic law.
Ladies and gentlemen,
We see that, in Malaysia, the Shari’ah has absorbed the principles of common law
which are not contradictory to its principles. I think that the same development
will happen in other countries, Muslim majority or otherwise, that introduce the
Shari’ah, even for limited purposes. But, I doubt that common law will absorb
the principles of Shari’ah, mainly for two reasons: prejudice and ignorance.
I also foresee that in Muslim majority countries the two courts may merge. The
same judges may be hearing the two types of cases. Non-Muslim lawyers will be
arguing Islamic law issues, just as non-Muslim experts in Islamic banking and
Islamic Finance are already doing now. After all one does not have to be an
Englishman to be an expert in the English common law. The same argument applies
to the relationship between Islamic law and civil or continental law
Secondly, within the Shari’ah itself, I also see the disintegration of the
Mazhabs. We know that one of the reasons that had led to the differences of
opinions between Imam Malik and Imam Abu Hanifah was the geographical factor.
Now that is not a factor anymore. All information, whether on facts or law, are
assessable to all no matter where they are within seconds. Rulings made by a
committee in the Middle East, Europe or elsewhere are known to other scholars
everywhere in the world and vice versa. Even custom is becoming more and more
globalised. In fact, in the field of Islamic banking, Islamic finance and
takaful that is already happening. Let us pray to Allah that we live long enough
to see the development, if it happens.
Thank you.
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