Blog of the International Journal of Constitutional Law

The Judiciary as Second-Best Political Strategy: The Never-Ending Debate over the Presumption of Innocence in Brazil

Juliano Zaiden Benvindo & Fernando José Gonçalves Acunha, University of Brasília

In February 2016, one of us wrote a post on I-CONnect focusing on the Brazilian Supreme Court’s new precedent on the presumption of innocence.[1] The decision carried out a major shift by allowing criminal sentences to be enforced once a judgment has been affirmed by a court of appeals, rather than waiting until all appeals had been exhausted. This was a significant decision in part because it landed in the middle of a sweeping corruption probe against political bigwigs and executives of the biggest contractors in Brazil. The decision possibly contradicted an unamendable eternity clause in the Brazilian constitution (Art. 5, LVII) – “no one shall be considered guilty before the issuing of a final and unappealable criminal sentence.” But the argument in favor of it was, as then Attorney General of the Republic Rodrigo Janot stated, to carry out “a decisive step against impunity in Brazil.”

For a while, one could argue that this prospect was becoming a reality, and the following months witnessed the imprisonment of some influential political and business figures after being condemned by state or federal Courts of Appeals. Unsurprisingly, this situation also triggered a severe backlash, and powerful political forces attempted to halt the judiciary’s interventions in its entrenched businesses and practices. The judiciary’s behavior in the aftermath of that backlash has been striking. As a sign that things get trickier when push comes to shove, the judiciary has furthered a parallel and more effective backlash in its own garden, possibly becoming the worst enemy of the role it seemed to have previously embraced. Structural dysfunctionalities of the Brazilian judicial system, longstanding and close ties between the political and judicial branches, and the constant violations of minimal safeguards in criminal proceedings by the prosecution and the judiciary may help explain this outcome.

One central problem lies in the fact that despite being a Supreme Court’s ruling, it did not constitute a binding precedent under the Brazilian system of judicial review because it was a habeas corpus judgment.[2] The ruling was thereby not immediately applied to all similar cases and a considerable number of local and federal Judges and Courts, and even Supreme Court Justices, continued to enforce their own understanding in defiance of the Supreme Court’s majority decision.

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Some Panels of Interest at the 2018 AALS Annual Meeting

Richard Albert, Boston College Law School

The next edition of the Annual Meeting of the Association of American Law Schools will be held in San Diego on January 3-6, 2018. There are several programs of interest to our readers. I’ve taken the liberty of identifying a few of them below. The full program is available here.

I look forward to seeing many of you at the conference.

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Published on December 22, 2017
Author:          Filed under: Developments

Special Issue of Perspectives on Federalism on “The Constitution of Canada: History, Evolution, Influence and Reform”

Richard Albert, Boston College Law School

Under the leadership of Giuseppe Martinico, the Scuola Sant’Anna in Pisa hosted an international symposium in May 2017 to mark the Sesquicentennial of the Canadian Constitution Act, 1867. The symposium invited scholars to explore four dimensions of the Constitution of Canada: its history, evolution, influence and reform.

Some of the papers presented at this symposium have now been published in a special issue of Perspectives on Federalism.  The entire issue is available here for download.

The program was organized under the auspices of the Sant’Anna Legal Studies project and with the support of the DIRPOLIS (Law, Politics and Development) Institute at the Scuola Sant’Anna, the Canadian Embassy in Italy, and the International Association of Constitutional Law.

The entire event was held in memory of Alessandro Pizzorusso, Professor of Constitutional and Comparative Law at the Universities of Pisa and Florence. Author of over 1000 publications in Italian, French, Spanish and English, Professor Pizzorusso was a member of the Italian Superior Council of the Judiciary, the Accademia Nazionale dei Lincei, and of the International Academy of Comparative Law.

The symposium was convened by Martinico along with Antonia Baraggia, Cristina Fasone and me.

We hope readers will enjoy this special issue.

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Published on December 21, 2017
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On ‘Horizontal’ and ‘Vertical’ Accountability in Present-Day Latin America (I-CONnect Column)

Javier Couso, Universidad Diego Portales

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]

Almost two decades ago (in 1998), the late Guillermo O’Donnell made a landmark contribution to the study of democratization, when he called for a focus on what he labeled ‘horizontal accountability’, that is to say, the process by which institutions linked to the rule of law (courts, national audit offices, and the like) make political authorities accountable when they violate basic aspects of the rule of law and constitutionalism (such as human rights and the principle of separation of powers), or engage in other types of abuses (nepotism or corruption) during the period in-between elections.[1] According to O’Donnell, in these regimes political authorities that had been democratically elected then ruled unconstrained by independent institutions, something which not only prevented democratic consolidation, but that was a source of daily misery for millions of people living under such ‘delegative democracies.’

I bring attention to O’Donnell’s enduring contribution prompted by recent events in Latin America, as well as by an important essay published by Juan Pablo Luna and Alberto Vergara, which suggests that, in addition to the lack of horizontal accountability in many countries of the region, there is also a growing problem with ‘vertical accountability’ in others.[2] Indeed, events such as the cooption of the Constitutional Court by Evo Morales’ party in Bolivia (in order to have the Court allow Morales to be reelected indefinitedly), or the absolute control of the courts exercised by the executive branch in Venezuela and Nicaragua, are a brutal reminder of how long the road to ‘horizontal accountability’ can be. Having said this, Luna and Vergara alert us to the possibility that countries with a working rule of law can have dysfunctional democratic systems (i.e. a lack of ‘vertical accountability’).

One such case if Chile, where the weight of the institutions of horizontal accountability in particular, the Constitutional Court, is threatening the capacity of the majority of the people to decide—through their representatives—on key policies. This is due to the unrestrained activism of the current conservative majority of the Court, which has become an instrument at the disposal of right-wing parties and business associations.

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Published on December 20, 2017
Author:          Filed under: Analysis

Conference Report: Seventh Asian Constitutional Law Forum–And Announcing the Association for Asian Constitutional Studies

Andrew Harding, National University of Singapore

On 8 and 9 December 2017 Thammasat University Law Faculty in Bangkok, Thailand, hosted the 7th Asian Constitutional Law Forum. The ACLF has been held biennially since 2005 in various Asian cities. On this occasion it was attended by 85 scholars, and offered in panels of three or four papers in three parallel streams. The event was enhanced by the attendance of 30 scholars who are preparing chapters for the upcoming Oxford Handbook of Constitutional Law in Asia. The Forum facilitated extensive discussion of these chapters in panels designed to facilitate this notable publication. David Law of Hong Kong University Law Faculty leads the editorial team, and there are altogether 56 chapters planned. The Handbook will be published by OUP in 2019. Panels and papers dealt, otherwise, with a range of current issues in Asian constitutional law, and with a broad range of countries covering most of Asia between Japan and India. It was noted how many younger scholars were present, indicating that the Forum has become an important venue for them. At the same time we were privileged to hear some of the most noted scholars in this field such as Albert Chen (HKU), Tom Ginsburg (Chicago), Chang Wen-chen (NTU Taipei), Hahm Chaihark (Yonsei), Thio Li-ann (National University of Singapore) and Clark Lombardi (University of Washington).

Thammasat University was considerably appreciated for its generous and efficient hosting of the event, and special thanks was given to TU’s Dr Munin Pongsapan. A report of some of the content of the papers can be found at here.

The occasion also marked the establishment of a new scholarly association, the Association for Asian Constitutional Studies. The AACS has grown out of the ACLF itself, which has been held on an informal basis until now. The National University of Singapore hosted the 2015 Forum, and the decision to set up the AACS was made by the assembled scholars at that meeting. I was asked to establish a preparatory committee, and have now been appointed Chair of the AACS following the formal establishment of the AACS in Bangkok. The purpose of the AACS is mainly to act a vehicle for running the ACLF on a continuing and concerted basis, but it will also organise other activities relevant to constitutional law in Asia, such as young scholars’ workshops (for which there is keen demand in Asia) and thematic seminars. The ACLF has spawned a good deal of published work on Asian constitutional law in the past.

Under the AACS’ Constitution, passed at the meeting in Bangkok, the Committee comprises representatives of the institutions hosting the last four Forums. It is intended that the Secretariat be based at the Centre for Asian Legal Studies at NUS. The Committee is working with Vietnam National University with a view to VNU hosting the next meeting in Hanoi in 2019. The membership of the AACS currently comprises participants in previous ACLFs, but any individual can join simply by writing to me at Details of ACLF VIII in 2019 will be forthcoming soon. We do not presently have a webpage but expect to have one up and running in a few months’ time.

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Published on December 19, 2017
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Developments in Pakistani Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Pakistani constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.

Moeen Cheema, Senior Lecturer and the Convenor of the LLM program in Law, Governance and Development, Australian National University College of Law

I. Introduction

Since the retirement of the former Chief Justice Iftikhar Chaudhry at the end of 2013, Pakistan’s apex court has progressively looked to extricate itself from the political limelight.

The era of the ‘Chaudhry Court’ was marked by extraordinary exertions of judicial power such that the judiciary had emerged as one of the most prominent players in the country’s governance system.[1] However, this was also a period during which the charges of judicial activism and overreach beyond constitutional bounds had to some extent tarnished the court’s standing, and the Chaudhry Court was increasingly seen as an overtly political institution. As a result, with the end of the Chaudhry era, the judiciary was under pressure to show restraint on a range of political questions and confine itself to a more traditional role. Given the relatively short tenures of the Chief Justices who followed in Chaudhry’s footsteps, the court also appeared to lack strong leadership and clear direction.

Within a span of less than two years, three chief justices assumed office and completed their tenures as per the mandatory appointment and retirement terms under the Constitution. Quite poetically, the 23rd Chief Justice of the Supreme Court served a mere 23 days in that office. Anwar Zaheer Jamali, the 24th Chief Justice, assumed office in September 2015 for a tenure that was scheduled to end on 30 December 2016. Chief Justice Jamali appeared determined to put the public law jurisdiction of the Supreme Court in a hiatus and reduce this constitutional court to a purely appellate forum. This is an endeavour he nearly succeeded in despite the political storms blowing over on the capital’s Constitution Avenue, on which the Supreme Court of Pakistan sits between the Parliament and the Prime Minister’s Secretariat.

2016 was thus the year of the Supreme Court’s ultimately futile attempt to dust off a political question doctrine and voluntarily hand back the powers it had accumulated over the last decade. That it failed despite such conscious effort reveals the extent to which the court has become a central player in Pakistan’s constitutional scheme, which appears to be the lasting legacy of the Chaudhry Court.

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Published on December 19, 2017
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What’s New in Public Law

–Sandeep Suresh, Research Associate (Jindal Global Law School)

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email

Developments in Constitutional Courts

  1. The Supreme Court of India will re-examine the constitutional validity of the penal provision that criminalises adultery but punishes men alone.
  2. The Constitutional Court of Turkey held that it is unconstitutional to ban access to a news website as it violates freedom of expression.
  3. The Constitutional Court of Indonesia dismissed a petition that sought to criminalise sex outside marriage and indirectly, gay sex.
  4. The Supreme Court of India directed the Union Government to setup 12 special criminal courts to expeditiously try criminal cases against politicians by March 2018.
  5. The Constitutional Court of Turkey declined to entertain a plea to ban officials in the Directorate of Religious Affairs from their involvement in politics.
  6. The Constitutional Council of France struck down a law that criminalised viewing of terrorist websites.

In the News

  1. Poland passed a controversial law revamping the judiciary despite warning from the European Union about sanctions.
  2. The Union Government of India will introduce a bill to criminalise triple talaq in the ongoing winter session of the Parliament.
  3. Taiwan amended the nation’s referendum law to reduce the threshold for the required voter turnout to make the referendum valid.
  4. The Constitution of Moldova will soon have “European integration” as an ideal towards which the nation will show allegiance.
  5. The Spanish Prime Minister expressed his willingness to reform the country’s constitution while reaffirming that the nation’s sovereignty is a non-negotiable aspect.
  6. The Indian Parliament will consider the Transgender Persons (Protection of Rights) Bill that seeks to protect the rights of transgender persons in the ongoing winter session of the Parliament.

New Scholarship

  1. Richard Albert & Michael Pal, The Democratic Resilience of the Canadian Constitution, in Constitutional Democracies in Crisis? (Mark Graber, Sanford Levinson and Mark Tushnet, eds., Oxford University Press forthcoming 2018) (advancing three categories of institutional explanations for the resilience of Canadian constitutional democracy in the face of the increasingly global phenomenon of democratic decline)
  2. Nicholas Aroney & Benjamin Saunders, On Judicial Rascals and Self-Appointed Monarchs: The Rise of Judicial Power in Australia, University of Queensland Law Journal (2017) (comprehensively understanding the rise of judicial power in Australia and judicialisation of politics)
  3. Catarina Santos Botelho, Aspirational constitutionalism, social rights prolixity and judicial activism: trilogy or trinity?, 3 (4) Comparative Constitutional Law and Administrative Law Quarterly (2017) (examining if aspirational constitutions (given their extensive commitment to social rights) leave more room for institutional tensions between democratic deliberation and an overextended judicial power)
  4. Aparna Chandra, William H. J. Hubbard & Sital Kalantry, The Supreme Court of India: A People’s Court?, 1 (2) Indian Law Review (2017) (based on an empirical analysis of cases decided by the Supreme Court of India from 2010 to 2014 under its special leave petition jurisdiction, arguing that contrary to the existing consensus among legal scholars, India’s apex court is still a court of the people)
  5. Mark Kende, The Unmasking of Balancing and Proportionality Review in U.S. Constitutional Law, 25 Cardozo Journal of International and Comparative Law 417 (2017) (arguing that openly recognising the presence of balancing and proportionality review in the US constitutional law would make the country’s constitutional law more coherent and enhance the US Supreme Court’s fading reputation)
  6. Sofia Ranchordas, Quasi-Constitutionalism and Informal Legislative Entrenchment: The Case of the Affordable Care Act, in Richard Albert & Joel Colon-Rios, Quasi-Constitutionality and Constitutional Statutes: Forms, Functions, and Applications (Routledge, forthcoming 2018) (describing how certain quasi constitutional statutes like the Affordable Care Act entrench social values over a period of time by resisting challenges from societal, political and economic changes and judicial challenges)
  7. David Schneiderman, Global Constitutionalism and Its Legitimacy Problems: Human Rights, Proportionality, and International Investment Law, Journal of Law & Ethics of Human Rights (Forthcoming 2017) (examining the issue regarding legitimacy of constitution-like legal orders operating beyond the state)
  8. A Falling Tree Makes More Noise Than a Growing Forest – On the Constitutional Courts’ Underestimated Contribution to the Domestic Enforcement of the European Convention of Human Rights, 77 (3) Heidelberg Journal of International Law (Special Issue of 2017) (contributions by David Kosař and Jan Petrov, Davide Paris, Ausra Padskocimaite, Diletta Tega, and Ladislav Vhynánek in this special issue focus on the unnoticed and crucial role of constitutional courts in the enforcement of the ECHR and ECtHR’s case-law within the domestic legal order)

Calls for Papers and Announcements

  1. The International Society of Public Law (ICON-S) is inviting submissions for its 2018 Annual Conference on ‘Identity, Security, Democracy: Challenges for Public Law’ that will be held in Hong Kong on June 25-27, 2018. Interested participants must submit their papers through the ICON-S website by January 31, 2018. Successful applicants will be notified by March 1, 2018.
  2. The Journal of the Oxford Centre for Socio-Legal Studies is currently calling for papers for the journal’s upcoming issue in 2018. Interested contributors must submit their papers by February 18, 2018.
  3. The Government and Law Research Group of the University of Antwerp, Catholic University of Leuven, Free University of Brussels, and the University of Hasselt are jointly inviting submissions for the 8th Annual Doctoral Conference on ‘Values and principles in multilevel governance: challenges and opportunities’. The conference will take place on May 25, 2018 at the University of Antwerp. Interested doctoral scholars must submit abstracts of their papers to no later than January 15, 2018.
  4. The Indian Law Review is inviting submissions from early career researchers for Case Notes or Legislative Notes on any case decided or legislation passed in India in 2017 for the journals upcoming issue. The authors of the notes that are selected for publication will be awarded cash prizes. Interested scholars must submit their work by January 21, 2018.
  5. Bar-Ilan University and the Journal of Law, Religion and State are inviting papers for the International Conference on ‘Religious Violence and Extremism on May 28-30, 2018. Interested scholars must submit abstracts of their papers to jlrs[@] by December 22, 2017.

Elsewhere Online

  1. Cristiano d’Orsi ,The right to health for refugees in South Africa: Concrete reality or wishful thinking?, AfricLaw
  2. Dana Burchardt, Belittling the Primacy of EU Law in Taricco II, Verfassungsblog
  3. Mark Elliott, Does the Government defeat on clause 9 of the EU (Withdrawal) Bill mean Parliament has ‘taken back control’?, Public Law for Everyone
  4. Maria Nawaz and Anna Cody, Indigenous people in gaol: what needs to change, AUSPUBLAW
  5. Tim Fish Hodgson, The South African Constitutional Court’s Decision on Gender Equality and Customary Marriages, Indian Constitutional Law & Philosophy
  6. Paul Daly ,EU Law in the UK after Brexit: EU Nationals’ Rights and a Transitional Period, UK Constitutional Law Blog
  7. Amanda Spies, The need to consider victim’s voices in the sentencing of offenders: Director of Public Prosecutions v Oscar Leonard Carl Pistorius, OxHRH Blog
  8. Asanga Welikala, Sri Lankans misunderstand the relationship between legal theory and political practice in constitution-making, Constitutionnet
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Published on December 18, 2017
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Developments in Myanmar Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Myanmar constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.

Daw Hla Myo New, Justice of the Constitutional Tribunal

I. Introduction

The constitution-building process in Myanmar is a long journey, like that of most other countries. It continues with time as Myanmar gains new historical and political experience. The most salient issues facing Myanmar relate to the struggle with internal armed conflict and insurgency that arose since its independence.

In a modern democracy, the most important feature of a Constitution is mechanisms to strengthen popular participation in public life. Democracy should connote equality between the majority people and other national races. The participation of national races in social justice, protection of human rights, and political, administrative, and economic concentration is imperative. The Tribunal, or Constitutional Court, by recognizing the legal norms and sources of law, provides the opportunity for minorities to preserve their own traditional norms, values, and practices. The core function of the Tribunal is to stabilize the constitutional order in an ethnically diverse society.

The constitutional recognition of the freedom of belief, religion of every individual, and the prohibition of discrimination is a paramount guarantee against the possible negative impact of a state religion or the predominance of religion in one country.

The independence and impartiality of the judiciary at large enhances the credibility and trust in the Tribunal. Strong institutional legitimacy of the Tribunal then promotes the “pull” of the Constitution as well as its integrity.

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Published on December 17, 2017
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Developments in Cypriot Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Cypriot constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.

Constantinos Kombos, Associate Professor of Public Law, Law Department, University of Cyprus.

I. Introduction

Cypriot constitutional law[1] has been simultaneously reflective of and respondive to the structural uneasiness[2] in our constitutional arrangements after the collapse[3] of the political compromise between the Greek and Turkish Cypriot communities.[4] Since 1964, the Supreme Court has provided a leeway for the continuing existence of a functional State on the basis of the law of necessity.[5] Constitutional adjudication in Cyprus, therefore, must be considered in terms unique to the anomalous situation that emerged after 1964. The Supreme Court has offered scholars some paramount examples of the application of the law of necessity over the years; for example, as a device to enable the creation of constitutional organs.[6] The retort to law of necessity remains the underlying theme of much constitutional adjudication concerning both the functioning of State organs and the content of constitutional norms.

The year 2016 was no exception. The Supreme Court has revisited such fundamental structural issues as the form of the establishment of the administrative court. At the same time, the Court examined issues relating to the content of constitutional norms on the right to privacy and separation of powers. The Court for a time examined the application of constitutional provisions enabling the dismissal of an independent officer of the Republic, the Deputy Attorney-General, who has the same status and protection as judges of the Supreme Court itself.

This report argues that issues of constitutional law remain directly connected to the application of the law of necessity when it comes to State organs, procedure, and content of. The key to understanding this idiosyncrasy of Cypriot constitutional law is to realize the deep and continuous presence of the Rule of Law and the judicial commitment in safeguarding constitutional law as it is formulated under the law of necessity. That is a difficult balancing exercise given the broadness and the potential force of the law of necessity that has nonetheless been placed within a constitutional State rather than outside.[7]

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Published on December 17, 2017
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Ecuador’s “Unstoppable” Constitutional Referendum

Mauricio Guim, S.J.D. candidate and Presidential Fellow in Data Science, University of Virginia School of Law & Augusto Verduga, LL.M. candidate, Universidad Andina Simón Bolívar, Quito, Ecuador[1]

Soon after winning the presidential election, new President Lenin Moreno announced a referendum to amend Ecuador’s Constitution. The proposal is the centerpiece of a so-far successful scheme to prevent former three-term president Rafael Correa from running for President again and to remove his remaining allies from critical positions of power.[2] The seven-question referendum proposes to reincorporate presidential term limits and create a mechanism to remove all authorities designated by the “Council for Citizen’s Participation”[3] which for the past decade has appointed all control and judicial authorities in Ecuador.[4]

The referendum faced serious political obstacles. First, the Constitutional Court had to authorize it, and all the Court’s judges had strong ties to President Correa’s regime.[5] Second, the Constitutional Court had previously ruled that the elimination of terms limits was an expansion of the people’s right to choose, and the same Court could well have concluded that the reincorporation of terms limits thus required the strictest constitutional procedure: a Constituent Assembly.[6]

In our previous post we focused on the Court’s then forthcoming decision and its potential to cause a constitutional crisis. Considering that the referendum had significant popular support, the Court had the three choices: 1) to switch sides and authorize the referendum; 2) to prohibit the referendum and risk the President’s defiance; or 3) to make a “Solomonic” decision that authorizes the referendum but rules that its results would not apply to former Presidents in the next elections, i.e., that they would only apply to future presidents but not to past presidents like Correa. [7]

Now, more than a month after our previous post, President Lenin Moreno has decided to move forward with the referendum without the Constitutional Court’s explicit authorization.[8] The President’s official announcement said: “Because it is The People’s right, I have submitted to the National Electoral Council the decrees calling for a constitutional referendum.” Hours later the Chairman of the National Electoral Council resigned, and a new Chairman aligned to President Lenin Moreno took his place.[9]

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Published on December 16, 2017
Author:          Filed under: Developments